Mobileworks Ltd Terms and Conditions
Table of Contents
Thank you for choosing to use Mobileworks Ltd products and services.
- This agreement (Agreement) governs any Mobileworks Ltd products and services (Services) provided to you through the Mobileworks Ltd websites at maestrolive.co.uk, (Site), online application suite (Mobileworks Ltd Platform) or that Mobileworks Ltd otherwise provides or makes accessible to you and the seats (being the named individual users of the Services) that you nominate (End Users). This Agreement does not apply if you have executed a hard copy agreement with Mobileworks Ltd for the provision of the Services.
- This Agreement is between Mobileworks Ltd (Mobileworks) and the person or entity agreeing to these terms (you).
- You warrant that you are over the age of eighteen and have the power and authority to enter into and perform your obligations under this Agreement. If you enter this Agreement on behalf of your company, then “you” in the remainder of this Agreement means your company, and you warrant that you are properly authorised to bind your company to this Agreement.
- You agree to the terms of this Agreement when you submit an Order, create an account on the Site or Mobileworks Ltd Platform or clicking on the “I agree” button that is presented to you at the time of submitting your Order. If you do not agree with this Agreement, do not click the “I agree” button and stop using and uninstall the Services. The Agreement becomes binding on the date that Mobileworks Ltd accepts your Order or first makes the Services available to you, whichever is earlier (Commencement Date).
This Agreement comprises of:
- these terms and conditions (General Terms);
- the terms specified in the relevant order form completed pursuant to section (12) (Order);
- the terms applicable to each Service set out in product modules in Part B of this Agreement (Product Modules);
- If any of the terms listed in this section (2)(a) are inconsistent, the terms first listed will have priority.
The Services include:
- all services, technology, data, information, programs, material and other content that Mobileworks Ltd makes accessible to you through the Site or the Mobileworks Ltd Platform, including on any desktop, mobile telephone or handheld device (Device) owned or controlled by you or your End Users (Subscription Services); and
- any other services that Mobileworks Ltd otherwise provides to you, but excludes:
- data, information, templates, content, code, video, images or other materials or information of any type that you upload to the Mobileworks Ltd Platform, or otherwise provide to Mobileworks Ltd in connection with the Services (Your Data);
- Your Modifications (as defined in section (8)(a));
- shared materials created by Mobileworks Ltd, you or other users of the Services that are published or made accessible through the Site and Mobileworks Ltd Platform, including in the “Public Library” (Shared Materials); and
- Sensor Hardware supplied by Mobileworks Ltd in accordance with the Sensor Product Module.
- Mobileworks Ltd reserves the right to make changes to the Subscription Services in its sole discretion from time to time, including the functionality, performance, user interface, usability, and the service description published on the Site or that Mobileworks Ltd provides to you (Service Description), and you agree that this Agreement will apply to any changes or updates to the Subscription Services. Subject to Mobileworks Ltd obligations under existing Orders, Mobileworks Ltd may discontinue any Service in whole or part at any time without notice or liability to you.
- Mobileworks Ltd will make the Subscription Services available to you and your End Users solely for your internal business operations during the subscription period specified in your Order (Subscription Term) and in accordance with any usage restrictions specified in the applicable Order and Product Module.
Unless permitted by law or as otherwise expressly permitted in this Agreement, you must not (nor may you authorise any third party to):
- rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Subscription Services to a third party;
- reproduce, modify, adapt, or create derivative works of, the Subscription Services or remove or tamper with any disclaimers or other legal notices in the Subscription Services;
- reverse engineer, disassemble, decompile, transfer, exchange or translate the Subscription Services or otherwise seek to obtain or derive the source code or API;
- incorporate the Subscription Services into any service that you provide to a third party; or
- use the Subscription Services to provide services, or to create a service that competes with the Subscription Services.
- You must promptly notify Mobileworks Ltd in writing of any breach of the above conditions of use.
- You are solely responsible for ensuring that your Devices and systems are compatible with the Subscription Services and meet any minimum requirements specified in the applicable Service Description.
Mobileworks Ltd may offer certain Services to you at no charge, including free accounts, trial use, and access to pre-release and beta products (No-Charge Services). Your use of No-Charge Services is subject to any additional terms that Mobileworks Ltd specifies and is only permitted for the period designated by Mobileworks Ltd, or if no such period is designated, 30 days. Mobileworks Ltd may terminate your right to use No-Charge Services at any time and for any reason in Mobileworks Ltd sole discretion, without liability to you.
- You must register an account in order to access or receive Services and to receive notices and information from Mobileworks Ltd (Customer Account).
- All End Users must establish a named account on the Mobileworks Ltd Platform (End User Account).
- You may specify one or more administrators who may elect to have password protected rights to access administrative account(s) (Admin Account(s)) to administer the Subscription Services and End User Accounts.
You are responsible for your Customer Account and all End User Accounts and Admin Accounts under your Customer Account (together, Your Accounts). Your responsibilities include:
- maintaining the confidentiality of the passwords associated with each of Your Accounts;
- ensuring that only those individuals authorised by you have access to Your Accounts; and
- ensuring that all activities that occur in connection with Your Accounts comply with this Agreement.
Intellectual Property Rights
- Mobileworks Ltd and its licensors have and retain all rights, title and interest, including all intellectual property rights, including copyright, trade or service marks, designs, patents, rights in circuit layouts, domain names and trade names anywhere in the world (Intellectual Property Rights) in and associated with the Services.
- You and your licensors retain ownership of all rights, including Intellectual Property Rights, in Your Data.
You grant to Mobileworks Ltd, or must procure the grant to Mobileworks Ltd of, a non-exclusive, worldwide, irrevocable, royalty-free licence (including the right to sublicense) to use and develop the Intellectual Property Rights in Your Data to the extent required to:
- enable Mobileworks Ltd to exercise its rights and discharge its obligations under this Agreement, including to provide or support the Services, and to offer to provide you with any other goods or services (including other products); and
- generate aggregated data sets, reports and analysis relating to technical data about customer use of the Subscription Services in a form that is anonymised and does not identify you or any individual (Aggregated Data). You acknowledge and agree that Mobileworks Ltd will own all Intellectual Property Rights in Aggregated Data.
- Mobileworks Ltd may use Aggregated Data to analyse, improve, support and operate the Services and for related internal business purposes.
Integration with Third Party Products
You may choose, in your sole discretion, to integrate the Services with third party products or services (Third Party Products). If you choose to use any Third Party Products in connection with the Services, Mobileworks Ltd may provide such third parties access or use of Your Data to the extent required for the interoperation of the Services with the Third Party Product. Your use of any Third Party Product will be subject to the applicable agreement between you and the relevant third party provider. Mobileworks Ltd is not responsible for any access to or use of Your Data by such third party providers. Mobileworks Ltd DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY PRODUCTS AND FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OF THIRD PARTY PRODUCTS.
Your Data and Your Modifications
- To the extent permitted by the functionality provided by a Subscription Service, you may modify a template, training course or incident workflow in the Subscription Services for the purposes of developing customisations and additional features of a template, training course or incident workflow (Your Modifications).
- If you elect to publicly share any of Your Data or Your Modifications with Mobileworks Ltd or other users through the functionality provided by the Subscription Services (Your Shared Materials), you grant Mobileworks Ltd and each other user that downloads Your Shared Materials a non-exclusive, worldwide, perpetual, irrevocable, royalty-free licence (including the right to sublicense) to use, develop, modify, reformat, publish, distribute to third parties, and exercise any other Intellectual Property Rights you have in Your Shared Materials.
You warrant that Your Data and Your Modifications (including any of Your Shared Materials):
- are not unlawful, defamatory, offensive, obscene, harmful, of bad taste, or inappropriate;
- comply with the Mobileworks Ltd Policies, including the Acceptable Use Policy;
- are not false, misleading or inaccurate;
- do not infringe third party rights (including Intellectual Property Rights);
- comply with all applicable laws; and
are not infected with viruses or any other malicious computer code, files or programs.You acknowledge and agree that Mobileworks Ltd may, in its absolute discretion, remove, delete, or modify any of Your Data or Your Modifications (including any of Your Shared Materials) from the Subscription Services, Site and Mobileworks Ltd Platform.
- You must indemnify, defend and hold Mobileworks Ltd and its affiliates, service providers, officers, employees, contractors and customers (those indemnified) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees) arising out of or in connection with any claim brought against those indemnified by a third party relating to Your Data or Your Modifications (including any of Your Shared Material), including but not limited to any claim relating to infringement of law or the rights of a third party (including Intellectual Property Rights), or representations or warranties that you make about Your Data, Your Modifications or the Services. Mobileworks Ltd agrees to provide: (i) prompt written notice to you of any such claim; (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of Mobileworks Ltd at your expense.
Downloading Shared Materials
- your use of Shared Materials is at your own risk;
- Mobileworks Ltd excludes all liability to you and any third party in respect of your use of Shared Materials; and
- it is your responsibility to assess (and if necessary, obtain professional advice on) the suitability of Shared Materials for your purposes and any modifications required to meet those purposes.
- In this Agreement, Confidential Information of a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any Shared Materials, or any other information which is in the public domain other than through a breach of confidence.
Each party (Recipient) must keep confidential and not disclose to any third party Confidential Information of the other party, with the exception that a Recipient may disclose such Confidential Information:
- a third party with the prior written consent of the other party; and
- the Recipient’s, or affiliates or subsidiaries of the Recipient’s, officers, agents, professional advisers, employees, contractors, subcontractors, auditors and insurers; and provided that such recipients are subject to confidentiality obligations no less stringent than under this Agreement in relation to that Confidential Information; and
- where the Recipient is legally compelled to do so by any government or any governmental, administrative, regulatory, fiscal or judicial body, department, commission, authority, tribunal, or agency, provided that it first uses commercially reasonable efforts to give the other party written notice prior to disclosure if permitted by law.
- Each party must only use Confidential Information of the other party for the purpose for which it was disclosed in connection with this Agreement.
- In this section, Personal Information has the meaning given under the Privacy Act 1988 (Cth), or the meaning given to any similar term under other applicable privacy or data protection laws that is used to describe information relating to an individual.
- You are responsible for ensuring that you have obtained all individual consents required for Mobileworks Ltd to provide the Services in respect of any Personal Information contained within Your Data, including from your End Users.
- Where (i) the EU General Data Protection Regulation 2016/679 (“GDPR“) and/or (ii) the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the GDPR apply to any of Your Data, the terms of Appendix 1 (Data Protection Compliance) and Appendix 2 (Data Processing Agreement) will apply.
- Where the Privacy Act 1988 (Cth) applies to any of Your Data, the terms of Appendix 3 will apply.
Other than as expressly noted in this section (11), you acknowledge that:
- the Services have not been designed to meet the requirements of laws or standards that may apply to you in respect of Your Data, including without limitation, the Health Insurance Portability and Accountability Act 1996, the Payment Card Industry Security Standards, or any other law or standard applicable to the handling, storage, processing, transfer, security or location of Your Data in any jurisdication; and
- it is your responsibility to satisfy yourself that your use of the Services will allow you to meet any legal obligations applicable to you in respect of Your Data, and Mobileworks Ltd disclaims all liability for your non-compliance with any such laws or standards arising from your use of the Services.
completing the online order page (Online Order) located on the Site which contains details of:
- the Services being ordered;
- the applicable fees (Fees);
- the number of paid End User Accounts that will form part of your organisation in respect of Subscription Services (if applicable);
- the Subscription Term applicable to any Subscription Services;
- the applicable billing details, and the currency in which you will be billed; and
- if applicable, details of any Sensor Products or other products made available by Mobileworks Ltd in the future you wish to order; or
- execute a paper-based quote or order form (Quote/Order Form) provided by Mobileworks Ltd which sets out the relevant information in section (12)(a).
Billing and Payment
- You must pay all Fees for the Services in accordance with the rates and currency set out in the applicable Order(s). Other than where expressly provided for under this Agreement, all Fees are non-refundable, non-cancellable and non-creditable.
You will be billed the Fees in accordance with the Order as follows:
for Subscription Services, you must elect one of the following billing cycle options:
- a Monthly Plan, in which case you will be billed the applicable Fees monthly in advance; or
- an Annual Plan, in which case you will be billed the applicable Fees annually in advance; or
- for Services other than Subscription Services, you will be billed the applicable Fees in accordance with the payment milestones specified in your Order, or if none are specified, in advance upon submitting the relevant Order. Services other than Subscription Services may be charged on a “fixed-fee” or “time and materials” basis, as specified in the relevant Order.
Your Order, and any other amounts owing to Mobileworks Ltd will be billed using one of the following methods (as specified in your Order):
- by direct debit of your credit card or debit card (Direct Debit), in which case you authorise Mobileworks Ltd to debit you in the month prior to the commencement of the annual or monthly billing cycle (as applicable);
- by issuing an invoice in accordance with the billing cycle or payment milestones specified in your Order (Invoiced Payments). You must pay any Invoiced Payment within thirty (30) calendar days after the date of invoice; or
- by such other forms of payment that Mobileworks Ltd makes available on the Site, which may be subject to additional terms and conditions.
- If you dispute any invoice or charge that Mobileworks Ltd has billed you (acting reasonably and in good faith) you must notify Mobileworks Ltd of the dispute without unreasonable delay.
- You are responsible for any duties, customs fees, or taxes (other than Mobileworks Ltd income tax) associated with the supply of the Services or any other goods or services provided by Mobileworks Ltd to you, including any VAT, GST or other applicable sales tax, and any related penalties or interest (Taxes), and you will pay Mobileworks Ltd for the Services without any withholding for Taxes. If Mobileworks Ltd is required to collect or pay Taxes, the Taxes will be invoiced to you. You must provide Mobileworks Ltd with any information Mobileworks Ltd reasonably requests to determine whether Mobileworks Ltd is obliged to collect Taxes from you, including your relevant Tax identification number.
Warranties and Limitation on Liability
Mobileworks Ltd warrants that:
- Subscription Services (other than No-Charge Services) will conform in all material respects with the applicable Service Description for the duration of the Subscription Term; and
Mobileworks Ltd will use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials (Malicious Code) into the Services. To avoid doubt, Mobileworks Ltd is not responsible for any Malicious Code introduced by third parties, or by you or your End Users.Provided that you notify Mobileworks Ltd in writing of any non-compliance under this section (14)(a) promptly after becoming aware of such non-compliance, Mobileworks Ltd will use commercially reasonable endeavours to correct the non-compliance within a reasonable period. If Mobileworks Ltd has not remedied the non-compliance by the date that is forty-five (45) days after your written notice, either party may terminate the affected Services.THIS SECTION (14)(a) CONSTITUTES YOUR EXCLUSIVE RIGHTS AND REMEDIES, AND Mobileworks Ltd’s SOLE LIABILITY, IN CONNECTION WITH THE WARRANTIES IN THIS SECTION (15)(a). YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF WARRANTIES REQUIRED BY STATUTE, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- Except as expressly stated in this Agreement or required under any applicable law, the Services and any other goods or services provided by Mobileworks Ltd to you are provided on an “as is” basis, and Mobileworks Ltd does not make any representation or warranty (express or implied) in respect of the Services or any other goods or services provided by Mobileworks Ltd to you, including, without limitation, any implied warranty of merchantability, of fitness for a particular purpose, that operation of the Services will be uninterrupted or error free, that all defects will be corrected, or that Mobileworks Ltd will maintain Your Data without loss or corruption.
To the maximum extent permitted by law, in no event will Mobileworks Ltd be liable to you or any third party in connection with this Agreement, whether in contract, tort, equity, statute or otherwise for:
- your misuse of the Services, acts or omissions of your personnel;
- Service outage or interruption, or any damage or losses, arising from networks or websites outside of Mobileworks Ltd’s control;
- any injury, damage to property, or loss to any person in relation to your use of the Services;
- subject to section (11), breach of any law applicable to your business activities, including but not limited to any work health and safety or food safety law, in connection with your use of the Services; or
- loss of profits, loss of revenue, loss of anticipated savings, loss of use, loss or corruption of data, costs of delay or procurement of substitute or replacement goods and services, business interruption, failure of security mechanisms, loss of goodwill, and any other form of indirect, incidental, special or consequential or punitive damages.
- To the maximum extent permitted by law, in no event will either party’s aggregate liability for any claims in connection with this Agreement exceed the total Fees actually paid by you under this Agreement during the twelve month period immediately prior to the event giving rise to the liability.
Subject to section (15)(c), Mobileworks Ltd will defend you against any third party claim alleging that the Subscription Services infringes any copyright or any patent (a “Claim”), and will indemnify you against any damages and costs finally awarded by a court of competent jurisdiction or any settlement amounts agreed in writing by Mobileworks Ltd, provided that you provide Mobileworks Ltd:
- prompt written notice of any such claim;
- the exclusive right to control and direct the investigation, defence, or settlement of such claim; and
- all reasonably necessary cooperation and assistance in the defence and investigation of the Claim at Mobileworks Ltd’s expense.
In the event of a Claim, Mobileworks Ltd may, in its sole discretion:
- procure the right for your continued use of the Subscription Services in accordance with this Agreement;
- replace the Subscription Services with a similar service with materially equivalent functionality; or
- terminate your Order in respect of the Subscription Services affected by the Claim and refund any prepaid, unused Fees in respect of the terminated Subscription Services.
The indemnity obligation in this section (15) will not apply to the extent that any Claim arises:
- in connection with your use of No-Charge Services;
- as a result of misuse of the Subscription Service or use of the Subscription Service with any third party data (including any Shared Materials), or in combination with any Third Party Products other than that for which the Subscription Services were designed or provided;
- as a result of modification to the Service made by any party other than Mobileworks Ltd or its subcontractors; or
- in connection with circumstances covered by your indemnification obligations under section (8)(d).
- THIS SECTION (15) CONSTITUTES YOUR EXCLUSIVE RIGHTS AND REMEDIES, AND Mobileworks Ltd’s SOLE LIABILITY, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SUBSCRIPTION SERVICES.
Term and Renewal
- This Agreement commences on the Commencement Date and expires when all Subscription Terms have expired, and all other Orders have been completed, unless otherwise terminated in accordance with this Agreement (Term).
Unless otherwise set out in the relevant Order, each Subscription Term will automatically renew for periods equal to the initial Subscription Term at the then-current rates unless:
- you elect not to renew your Subscription Term by providing written notice to Mobileworks Ltd at least 30 days prior to the expiry of the then-current Subscription Term, in which case your subscription will expire at the end of the then-current Subscription Term; or
- Mobileworks Ltd provides you notice that the Subscription Term will not renew at any time prior to the expiry of the then-current Subscription Term, in which case your subscription will expire at the end of the then-current Subscription Term.
Termination and Suspension
- You may terminate Subscription Services at any time by following the online process specified on the Site for cancelling your Subscription Term. If you choose to terminate this Agreement in accordance with this clause, you will not be entitled to any credits or refunds as a result of such termination.
Either party may terminate this Agreement in whole or part, including any particular Order(s), immediately upon providing notice to the other party if:
- the other party is in material breach of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach; or
- if the other party ceases to operate, has an administrator appointed, enters a deed of company arrangement or other form of administration involving one or more of its creditors, is subject to an order that it be wound up, declared bankrupt, or that a liquidator or receiver be appointed, or otherwise becomes insolvent or is unable to meet its financial obligations.
Mobileworks Ltd may suspend the Services (including any of Your Accounts) immediately without providing you notice, or terminate this Agreement in whole or part, including any particular Order(s), immediately upon notice to you, if:
- you are in material breach of this Agreement more than two times during the Term notwithstanding any cure of such breaches;
- you have failed to pay any Fees within sixty (60) days after the relevant due date;
- you infringe Mobileworks Ltd’s Culture’s Intellectual Property Rights; or
- your use of the Services breaches any applicable law or any of the Mobileworks Ltd Policies.
If Mobileworks Ltd suspends your use of the Services pursuant to its rights under this Agreement:
- Mobileworks Ltd will continue to charge you Fees during the suspension period and you must pay any outstanding Fees prior to Mobileworks Ltd resuming the provision of the Services; and
- Mobileworks Ltd may, in its sole discretion, refuse to resume the provision of the Services until it is satisfied that you have cured the breach which caused the suspension to Mobileworks Ltd’s reasonable satisfaction.
Consequences of Termination
Upon the date that this Agreement or any Order expires or is terminated, then:
- subject to any further access to the Subscription Services granted by Mobileworks Ltd under section (18)(b)(ii), you and your End Users must cease all access and use of the relevant Subscription Services, Your Modifications and any Shared Materials;
if the Agreement or any Order is terminated:
- by you for Mobileworks Ltd breach, then Mobileworks Ltd will refund any prepaid, unused Fees that relate to the terminated Subscription Services; or
- by Mobileworks Ltd for your breach, then you must pay to Mobileworks Ltd any and all outstanding Fees due for the remaining duration of any Subscription Term, which will become immediately due and payable upon termination;
- you must delete any software or other materials that Mobileworks Ltd has provided to you, or made accessible for download by you, for use in connection with the Services (including any Shared Materials) from any Devices; and
- you must return, or if requested by Mobileworks Ltd, destroy all of Mobileworks Ltd Confidential Information in your possession or control and provide written certification to Mobileworks Ltd that you have done so.
Within thirty (30) days after the effective date of expiry or termination of this Agreement, you must notify Mobileworks Ltd if you would like Your Data returned to you or deleted. If you notify Mobileworks Ltd that you elect to have Your Data:
- deleted (or fail to provide Mobileworks Ltd notice of your election), then Mobileworks Ltd will delete Your Data by removing pointers to it on Mobileworks Ltd active and replication servers and overwriting it over time; or
- returned, Mobileworks Ltd will, at your election, use commercially reasonable endeavours to deliver Your Data to you, or provide you access to the relevant Subscription Service (other than a No-Charge Service) to access Your Data for a period of up to 30 days following the date of termination or expiry provided that you continue to pay Mobileworks Ltd the then-current rates for the applicable Subscription Services in respect of that period.
- The following provisions will survive any termination or expiration of this Agreement: sections (8)(c), (8)(d), (9), (10), (13), (14), (15), (18), (20) and any other sections which by intent or meaning have validity beyond termination or expiration of this Agreement.
Mobileworks Ltd may update or modify the terms of this Agreement from time to time, including the Mobileworks Ltd Policies and any other referenced documents (including the Service Descriptions) to respond to changes in Mobileworks Ltd’s products, services, business or as required by law, by giving notice to you. If an update or modification to the terms of this Agreement materially reduces your rights, you may terminate this Agreement upon providing notice to Mobileworks Ltd within 30 days after the date of Mobileworks Ltd’s notice to you under this section, with such termination to be effective on the date of your notice or the effective date of the update or modification, whichever is later.
- Unless otherwise agreed in your Order, this Agreement is governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts in England and Wales.
- If any provision of this Agreement is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of this Agreement will be construed in a manner as to give greatest effect to the original intention of this Agreement.
- The failure of either party to exercise any right provided in this Agreement in any instance will not be deemed to be a waiver of such right.
- Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
- Other than in respect of an obligation to pay any Fee or other amount, neither party will be liable for non-performance or inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, pandemic, riot, labour condition, governmental action, power interruption, telecommunication, data and internet disturbance) that was beyond the party’s reasonable control (Force Majeure Event).
- Your use of any website or software that is not provided by Mobileworks Ltd to access or download the Services will be governed by the terms and conditions applicable to that website or software. Mobileworks Ltd is not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Service.
Any notices to you may either be posted on the Site or Mobileworks Ltd Platform, or given in writing (which may be by email) to the address last notified by you to Mobileworks Ltd. Any notices to Mobileworks Ltd, and any questions, concerns or complaints relating to the Services must be in writing and addressed to:
- You agree to use your commercially reasonable endeavours to resolve any dispute arising out of or relating to this Agreement with Mobileworks Ltd prior to resorting to any external dispute resolution process or court proceedings.
This Agreement, and any rights granted hereunder, must not be transferred or assigned by either party (assigning party) without the prior express written consent of the other party, except:
- to a third party participating in a merger with, or acquisition of the assigning party; or
- in respect of Mobileworks Ltd , to any of Mobileworks Ltd’s affiliates or subsidiaries.
- This Agreement contains the entire understanding between the parties regarding the subject matter of this Agreement. To avoid doubt, resellers of the Services are not authorised to modify the terms of this Agreement or make any representations, undertakings or other legally binding commitments on behalf of Mobileworks Ltd.
Appendix 1 (GDPR – Data Protection Compliance)
In this Appendix and in Appendix 2 (GDPR – Data Processing Agreement):
- Customer Personal Data means any personal data which Mobileworks Ltd (or its sub-processors) processes on your behalf as a processor in the course of providing Services.
- Data Protection Laws means the EU Data Protection Laws and the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the EU Data Protection Laws in relation to the processing of personal data.
- EU Data Protection Laws means, the GDPR and any national laws which implement or supplement or replace the same from time to time.
- Model Clauses means contractual clauses that have been approved for use by the relevant supervisory authorities under applicable EU Data Protection Laws to enable the lawful transfer of personal data to a country or organisation that would otherwise not be regarded as having adequate safeguards for personal data (which as at the date of this Agreement include the controller to processor terms approved by Commission Decision C(2010)593).
- Security Incident means a breach of Mobileworks Ltd’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data.
- personal data, consent, controller, processor, data subject and processing mean those concepts, roles and activities as defined in the applicable EU Data Protection Laws.
- Mobileworks Ltd is the controller in respect of personal data, such as account registration details, that we collect directly from users of the Services (End Users) and users of No-Charge Services, and which we use for the purposes of our business.
- You are the controller and we are the processor in respect of any other personal data (including within Your Modifications) that is uploaded by End Users and/or users of No-Charge Services including data, templates, information, content, code, video, images or other material of any type (Materials), or which is provided by your administrators (see Section 5 above).
To the extent that the Services and/or Non-Charge Services comprise the processing of personal data where we are the processor and you are the controller:
- you will comply with the requirements of the Data Protection Laws as the same apply to you as controller of the personal data; and
- the provisions of Appendix 2 (Data Processing Agreement) to these Terms shall apply
- There is a lawful basis for the collection and processing of personal data; and
Appendix 2 (GDPR – Data Processing Agreement)
The provisions of this Appendix form part of this Agreement to the extent that section (11)(d) of the General Terms applies.
Details of Data Processing
- Subject matter: The subject matter of the data processing under this Data Processing Agreement is the processing of Customer Personal Data in connection with the performance of the Agreement
- Duration: As between you and Mobileworks Ltd the duration of the data processing under this Data Processing Agreement is determined by you, subject to the other provisions of the Agreement.
- Purpose: The purpose of the data processing under this Data Processing Agreement is the provision of the Services under the Agreement.
- Nature of the processing: data hosting, storage and such other services as are described in the Agreement.
- Type of Data: Customer Personal Data uploaded to the Services under your accounts.
- Categories of data subjects: The data subjects may include your customers, employees, suppliers and end-users.
Terms of Data Processing
Where Mobileworks Ltd acts as processor of personal data on your behalf, Mobileworks Ltd shall:
- process personal data only on your reasonable documented instructions unless required to do so by law; in such a case, Mobileworks Ltd shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. You acknowledge and agree that your final and completion instructions regarding the processing of Customer Personal Data are set out in this Agreement. Any additional or alternate instructions must be agreed in writing by the parties (and Mobileworks Ltd will be entitled to charge a reasonable fee to cover any costs incurred in complying with them);
- ensure that persons authorised to process the personal data on our behalf have committed themselves to confidentiality obligations or are under an appropriate statutory obligation of confidentiality;
implement appropriate organisational and technical measures to ensure a level of security for the personal data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the personal data. The measures that we consider appropriate are more fully described in Mobileworks Ltd’s Architecture and Security document (a copy of which is available on request). This document outlines:
- our architecture and infrastructure through which Services and No-Charge Services are provided;
- security controls employed by us and our service providers in protecting personal data; and
- security controls employed by our support channels which handle personal data.
- taking into account the nature of the processing, assist the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the EU General Data Protection Regulation 2016/679, provided that this assistance will be provided by us at your cost on a time and materials basis;
- Mobileworks Ltd will (a) notify you of a Security Incident without undue delay after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident. To reasonably assist you in relation to any personal data breach notifications you are required to make under the GDPR, Mobileworks Ltd will include in the notification such information about the Security Incident as Mobileworks Ltd is reasonably able to disclose to you, taking into account the nature of the Services, the information available to Mobileworks Ltd, and any restrictions on disclosing the information, such as confidentiality;
- at the choice of the controller, delete or return all the personal data to the controller after the end of the provision of services relating to processing, and delete existing copies save that Mobileworks Ltd shall be entitled to retain Customer Personal Data where required by EU law or the national law of an EU member state or another applicable law, or where such data is required for Mobileworks Ltd’s internal record keeping or where it is necessary for use in any legal proceedings or the deletion could cause any liability to Mobileworks Ltd; You must notify us of Personal Data that you wish to have returned or deleted within 30 days following the effective date of termination; and
- make available to the controller all information reasonably necessary to demonstrate compliance with the obligations laid down in Article 28 (processor) of the EU General Data Protection Regulation 2016/679 and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller (in each case at the controller’s cost). Such assistance shall be provided at your cost. The timing, scope and duration of any audit shall be mutually agreed by the parties. You shall not be entitled to carry out audits more than once in any 12 month period, other than where a data security incident has taken place, you shall be entitled to carry out an additional audit within 30 days of Mobileworks Ltd notifying you of such security incident. You shall ensure that any third party auditor appointed by you is (i) not a competitor of Mobileworks Ltd; and (ii) is committed to appropriate confidentiality obligations. You and/or any third-party auditor shall comply with Mobileworks Ltd standard policies and procedures when accessing Mobileworks Ltd’s premises or systems.
You acknowledge that in the performance of the Services Mobileworks Ltd may require to transfer Customer Personal Data outside the EEA. Where any such transfer takes place:
- the transfer shall take effect upon and subject to the terms of the Model Clauses (Processor) and the parties each agree to comply with those terms;
- the “data exporter” for the purposes of the Model Clauses (Processor) shall be deemed to mean you and the “data importer” shall mean the Mobileworks Ltd;
- For the avoidance of doubt, Mobileworks Ltd shall also be entitled to process data (including personal data) obtained in the course of the Services to carry out statistical analysis, manage its business (including its staff and contractors), develop and improve its services, comply with its own legal obligations and deal with legal claims. Mobileworks Ltd shall act as the controller for the purposes of these data processing activities.
Mobileworks Ltd must:
- process personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by European Union or the national law of an EU member state to which the processor is subject; in such a case, the processor must inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- implement appropriate organisational and technical measures as required pursuant to Article 32 (security of processing) of the EU General Data Protection Regulation 2016/679. The measures that Mobileworks Ltd considers appropriate are more fully described in our security policy or in Mobileworks Ltd’s Architecture and Security document (a copy of which is available on request). This document outlines:
- our architecture and infrastructure through which Services and No-Charge Services are provided;
- security controls employed by Mobileworks Ltd and its service providers in protecting personal and/or sensitive personal data; and
- security controls employed by Mobileworks Ltd support channels which handle personal data or sensitive personal data.
- respect the conditions for engaging another processor referred to in paragraphs 2 and 4 of Article 28 (processor) of the EU General Data Protection Regulation 2016/679;
- taking into account the nature of the processing, assist the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the EU General Data Protection Regulation 2016/679;
- assist the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the EU General Data Protection Regulation 2016/679 taking into account the nature of the processing and the information available to the processor;
- at the choice of the controller, delete or return all the personal data to the controller after the end of the provision of services relating to processing, and delete existing copies unless EU law or the national law of an EU member state or another applicable law; and
- make available to the controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 (processor) of the EU General Data Protection Regulation 2016/679 and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller (in each case at the controller’s cost).
Part B – Product Modules
A. Verify Product Module
- The terms of this Verify Product Module apply to Verify Services.
- Verify Services means the provision of the online Subscription Service known as Verify available through the Mobileworks Ltd Platform.
Mobileworks Ltd will make Verify Services available to you on Devices owned or controlled by you or your End Users during the Subscription Term.
Service Level Agreement (SLA)
Other than in respect of No-Charge Services, Verify Services will have 99.9% availability in any calendar month (Verify SLA). Subject to your compliance with this section (3), you may be entitled to the following remedies for breach of the Verify SLA:
- an extension to your Subscription Term applicable to the Verify Service; or
service credits of an equivalent pro-rated value to the extension of the Subscription Term in the form of a monetary credit to a monthly-billing account, as described in the table below (Service Credits). Service Credits may not be exchanged for, or converted to, monetary amounts, and are capped at fifteen days of Verify Services in any calendar month.
Monthly Uptime Percentage
(Days of extension to the Subscription Term / pro-rated credit equivalent)
< 99.9% – >= 99.0%
< 99.0% – >= 95.0%
- To claim Service Credits, you must notify Mobileworks Ltd within thirty (30) days from the end of the calendar month to which the Service Credits relate. Failure to comply with this requirement will forfeit your right to receive the Service Credits.
- The relevant Service Description may disapply the Verify SLA to specific parts of the Verify Service.
- Mobileworks Ltd will not be liable under this Verify SLA for any unavailability of the Verify Service caused by Force Majeure Events or any equipment (including your Devices) or network connections outside of Mobileworks Ltd’s control.
- THIS Verify SLA STATES YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY Mobileworks Ltd TO MEET THE Verify SLA.
Verify DisclaimerYou acknowledge and agree that:
- you are using the Verify Service at your own risk;
- the Verify Service is not a substitute for professional advice; and
- you are solely responsible for the use of the Verify Service and agree that any safety audits, training courses or incidents conducted using the Service are only part of establishing a safe system of work, which would typically require you to undertake additional and comprehensive gap analysis and risk assessments along with specific safe work method statements and safety training.