End-User License Agreement

End-User License Agreement (“EULA”)

This end-user licence agreement (“EULA”) is a legal agreement between you personally and (subject to the provisions of clause 7.7) the company or other organisation for which or on whose behalf or for whom you work (“you”) and HND Global Ltd with company number: 141532, whose registered address is at 3rd floor Labama House, Sir William Newton Street, Port-Louis, Mauritius (“us” or “we”), for the use of the proprietary software known as RDrive (“Software”).

The Software is licensed and not sold to you. We are the licensor of the Software and we and our licensors reserve all rights not expressly granted to you.

AGREED TERMS AND SCOPE
By downloading or using the Software you agree (on your own behalf and on behalf of the organisation or company on whose behalf or for whom you work) to the following terms and conditions. If you do not agree with such terms and conditions you must not download or use the Software:
1. We may change this EULA from time to time without prior notice. The revised terms and conditions will become effective upon posting and if you use the Software after that date, we will treat your use as acceptance of the revised terms and conditions. If any change to this EULA is not acceptable to you, your must stop accessing and using the Software.
2. If the Software is designed for use with an application software product (the “Host Application”) that is published by us we grant you a non-exclusive license to use the Software with the Host Application provided you possess a valid license from us for the Host Application.
3. If you download or use the Software on a form other than the Host Application, we grant you a limited non-exclusive license to install and use the Software on one Computer for the purpose of resolving certain file corruption issues. “Computer” means a virtual or physical computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
4. No modification or distribution rights are granted to you for the Software.
5. You shall not:
  1. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party, other than as expressly permitted by this EULA;
  2. copy, modify or distribute any portion of the Software;
  3. disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296a of The Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purposes of achieving inter-operability of the Software with another software program and provided that the information obtained by you during such activities:
    1. is used only for the purposes of achieving inter-operability of the Software with another software program; and
    2. is not unnecessarily disclosed or communicated to any third party without our prior written consent; and
    3. is not used to create any software which is substantially similar to the Software.
  4. use the Software to process data on behalf of any third party; or
  5. use the Software in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Software and its components.
6. Subject to your compliance with this EULA, we grant you a limited, non-exclusive, non-transferable, non sub-licensable license to download, view, copy, display and print the content produced through use of the Software (“Content”), solely for your internal business purposes.
7. You are responsible for all information, data, text, messages or other materials that you post or otherwise transmit via the Software (“Your Content”).
8. You are responsible for maintaining the confidentiality of your login and account and are fully responsible for any and all activities that occur under your login or account. You agree and acknowledge that your login may only be used by one (1) person – a single login shared by multiple people is not permitted. You may create separate logins for as many people as your plan allows. We reserve the right to access any or all your accounts in order to respond to your requests for technical support.
9. You understand that the technical processing and transmission of the Software, including Your Content, may be transferred unencrypted and involve:
  1. transmissions over various networks (some of which may not be secured);
  2. changes to conform and adapt to technical requirements of connecting networks or devices; and
  3. transmission to our third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Software.
10. You agree to indemnify us in full against all costs, damages, claims, expenses and losses suffered by us as a result of any breach by you of this EULA.
11. We may terminate this EULA immediately by written notice to you if you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
12. On termination for any reason:
  1. all rights granted to you under this EULA shall cease;
  2. you must immediately cease all activities authorised by this EULA; and
  3. you must immediately and permanently delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
SUPPORT
1. If we are providing support and if you encounter any problem with your use of the Software you agree to promptly notify us of all such issues either by website, device chat, email or telephone during our standard working hours (which are the hours between 09:00 and 17:00 at the location from which our support is provided). We shall use such feedback to assist us in diagnosing issues with the Software and we shall determine, in our absolute discretion, whether the issue reported is as a result of an inherent and stand-alone issue with the Software (in which case we shall use reasonable endeavours to rectify such issues and/or provide a work-around in such timescales as we shall determine) or results from any of the scenarios outlined in clause 2.4.
2. Unless agreed otherwise in writing with us we are not obliged to provide any onsite support.
3. We reserve the right to charge for support over and above what is reasonable and proportionate at our standard rates then in force but this does not give rise to any obligation on our part to provide such support in the future.
4. Support provided by us shall not include the diagnosis and rectification of any defect or other issue with the Software resulting from:
  1. the improper use or operation of the Software;
  2. virus infection;
  3. the modification of the Software or its merger (in whole or in part) with any other software;
  4. the use of the Software on equipment not complying with the minimum equipment requirements advised by us;
  5. the failure by you to implement recommendations, solutions or updates previously advised or made available by us;
  6. any repair, adjustment, alteration or modification of the Software by any party other than us without our prior written consent;
  7. the use of the Software for any purpose for which it was not designed;
  8. any issues with a third party software (whether or not such third party software has been supplied by us); or
  9. any interaction between the Software and any third party software.
DISCLAIMER OF WARRANTIES
1. You agree that we have not made any express warranties to you regarding the Software and that the Software is being provided to you “as is”. We disclaim all warranties with regard to the Software, whether express or implied, including without limitation, any implied warranties of fitness for a particular purpose, merchantability, merchantable quality or non-infringement of third party rights (to the extent allowed by law).
2. Where we are hosting the Software we will use commercially reasonable endeavours to maintain an industry average “annual uptime percentage” however you accept that we do not provide any assurances that access to the Software will be uninterrupted or free from errors and you take all responsibility to ensure that you will have in place all technical measures (including equipment and internet access) necessary to access and use the Software.
LIMITATION OF LIABILITY
1. We will not be liable to you (whether in contract, tort or otherwise) for any:
  1. loss of use;
  2. interruption of business;
  3. any direct, indirect, special, incidental or consequential damages of any kind;
  4. loss of profits;
  5. loss of business;
  6. loss of anticipated sales or savings;
  7. interruption of business or wasted administrative time
  whether in contract, tort (including negligence), product liability or otherwise, arising out of your use of the Software.
2. Nothing in this EULA shall limit or exclude our liability for:
  1. death or personal injury resulting from our negligence;
  2. fraud or fraudulent misrepresentation; and
  3. any other liability that cannot be excluded or limited as a matter of law.
3. To the extent allowed by law, the maximum liability we shall have (which includes collectively our affiliates, officers, directors, employees, agents, suppliers and licensors) to you shall not exceed the fees paid by you (including, for the avoidance of doubt, fees paid by your employer or other organisation for your use of the Software) to us during the period of 12 months before the last event that gave rise to the relevant claim. This cap on liability is for the aggregate of all claims and not a per incident cap.
4. You shall not bring any claim against us under this EULA or, otherwise in relation to your use of the Software more than 18 months after the event that gives rise to that claim.
5. You and us agree that the limitations and exclusions of liability contained in this EULA are reasonable in view of the nature and the extent of the obligations accepted by you and us pursuant to this EULA.
Fair Usage Policy
1. We expect our clients to use our Software responsibly. Your usage of the Software can affect other users if you overload the shared servers as the resources available on a server are usually shared between groups of clients.
2. Where we believe that your usage is excessive, we will contact you to discuss how you can modify your usage to the benefit of all of our users. If after notifying you of your excessive usage, we remain dissatisfied with your use of the Software and usage levels, because it (or may) impact other users, we may require you to move to your own server. We can manage your server for you, if you would like us to do so. Alternatively, if you need an uncontended service and exclusive access to server resources we will be happy to provide this for you, in consideration for a fee (as notified to you).
3. If, under clause 5.2 we notify you of your excessive usage and ask that you move to your own server and you fail to do so, we may, at our sole discretion (and without liability to you), terminate or otherwise suspend your access to the Software.
Staff Non-Solicitation
1. In order to protect the legitimate interests of the Parties, each Party (Party 1) covenants with the other Party (Party 2) that it shall not except with the prior written consent of Party 2:
  1. attempt to solicit or entice away; or
  2. solicit or entice away
  from the employment or service of Party 2 the services of any firm, company or person employed or engaged by Party 2 during the term of this agreement who has been engaged in the provision of the services or the management of this agreement (each a Restricted Person).
2. In order to protect the legitimate interests of Party 2, Party 1 covenants with Party 2 that it shall not except with the prior written consent of Party 2 employ or engage or otherwise facilitate the employment or engagement of any Restricted Person.
3. If Party 1 commits a breach of either clause 6.1 or clause 6.2, Party 1 shall on demand, pay to Party 2, a sum equal to six month’s basic salary (or the fee) that was payable by Party 2 to the Restricted Person plus the recruitment costs incurred by Party 2 in replacing such person. The Parties confirm that these liquidated damages are reasonable and proportionate to protect the legitimate interest of Party 2.
GENERAL
1. Our failure to exercise or enforce any right or provision of this EULA shall not be a waiver of that right.
2. You acknowledge that this EULA is a contract between you and us and it governs your use of the Software.
3. The Software and Content (except Your Content) and all intellectual property rights therein are the exclusive property of us or our licensors. You or your licensors own all intellectual property rights in Your Content only.
4. No provision of this EULA shall be waived unless agreed to be waived by both you and us in writing. If any provision is waived then that wavier shall operate for that instance only and not for future instances (unless agreed otherwise by you and us in writing).
5. If at any time any part of this EULA or any provision of this EULA becomes void or unenforceable under any applicable law it shall be deemed to be deleted (to the maximum extent necessary) from this EULA and the remaining provisions of this EULA shall continue unaffected.
6. No variation of this EULA shall be effective unless it is agreed in writing and is signed by an authorised representative of you and an authorised representative of us.
7. In the event that we have in force a licence agreement between us and the company or other organisation for which or on whose behalf you work then the provisions of this EULA shall only apply to your personal use of the Software and our relationship with such company or other organisation shall be governed by the provisions of that licence agreement.
8. This EULA constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this EULA.
9. This EULA, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.
10. We may transfer our rights and obligations under this EULA to another organisation and/or upgrade the Software or migrate you to another one of our products as we see fit. If we do any of these things it will not affect your rights or our obligations under this EULA.
11. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in Clause 7.11.
12. An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks.
13. If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
  1. our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
  2. we will use our reasonable endeavours to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.