In this document:
- “Wandera”, “we”, “our” and “us” refer to Wandera, Inc. and its Affiliates;
- “Customer”, “you” and “your” refer to the customer named in the Order Form;
- “Affiliate” in relation to either party means an entity controlling, controlled by or under common control with that party;
- “Agreement” means the Order Form together with these terms;
- “Order Form” means the agreement between the parties to which these Terms are attached, which includes order and pricing details;
- “Initial Term” means the period specified in the Order Form, which shall commence on the provisioning of the Services;
- “Services” means the secure mobile gateway services as operated by us from time to time and more particularly described in the Service Description. The specific services to be provided to you will be determined in accordance with the Order Form;
- “Service Description” means the service description in force from time to time, the current version of which is set out on our website;
- “End User Agreement” means the agreement between Wandera and an end user of the Services, the current version of which is set out on our website.
Orders, pricing, invoicing and payment
- You shall, upon and subject to credit approval by Wandera, purchase the Services by issuing a purchase order specifying the relevant number of users and contract duration (“Purchase Order”). Each Purchase Order must be signed, if requested by Wandera, or (in the case of electronic transmission) sent, by an authorized representative, indicating the specific Service, quantity, price, total purchase price, bill-to address, tax exempt certifications, if applicable, contract reference if any, and any other special instructions. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by you to Wandera, and any such additional or conflicting terms are deemed rejected by Wandera.
- The price for the Services shall be (i) as specified in Wandera’s then-current price list for the applicable country, or (ii) as specified in a written price quotation submitted by Wandera.
- Payment terms shall be net 30 days from the date of invoice. Any sum not paid by you when due shall bear interest from the due date until paid at a rate of (a) 10 per cent per annum, or (b) the maximum rate permitted by law, whichever is less.
- Fees shall be invoiced annually in advance unless otherwise specified on the Order Form. Fees for the Service shall be payable from the date on which Wandera notifies you that the Service is available for use.
- All stated prices are exclusive of any taxes, fees and duties or other similar amounts. You shall pay any taxes relating to the Services you purchase, or present an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice, to the extent possible. Wandera reserves the right to gross up any Service fee if a withholding prevents Wandera from receiving the amount specified in the Purchase Order.
- You must notify Wandera within 14 days if the number of end users increases by more than 5% of the then declared number of end users. Wandera reserves the right to require you to purchase additional licenses if the number of actual distinct users (as shown by Wandera’s traffic logs) exceeds the number of licensed users from time to time.
- The term for the performance of the Services shall be specified on the Purchase Order, and the terms and conditions of this Agreement shall automatically renew for a further 12-month period unless cancelled by providing no less than 60 days’ notice of cancellation prior to the expiry of the existing Term as specified on the Purchase Order.
Registration and user account
- When you register for the Services we will ask you to provide us with certain contact and personal details. Please note that incorrect or outdated information may prevent you from registering and impair our ability to provide you with the Services.
- To log in, you must use your email address and password you entered during the registration process. We may also establish and require from time to time additional or different means of identification and authentication for logging in and accessing your account, or for accessing other services of Wandera (for example, security questions, memorable phrases etc.).
- You agree to maintain your password in absolute confidentiality and not to disclose it to anyone else. We recommend that you change your password frequently and at least once every six months. You are responsible for any outcome resulting from your failure to provide accurate and complete registration details, and for any use or misuse of your account as a result of sharing your details with anyone else.
- Subject to your compliance with this Agreement and your end users’ compliance with the End User Agreement, Wandera grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the executable form of the Wandera software (the ‘Software’) and to make the Software available to your end users.
- As long as you have paid all applicable fees, Wandera will:
- provide the Services as ordered by you;
- provide all updates commercially released by Wandera; and
- use its reasonable commercial endeavors to resolve technical problems identified with the Service. Wandera does not provide technical support for any third-party hardware or software.
- You recognise that information sent to and from your end users will pass through Wandera’s systems and accordingly you undertake to comply (and ensure that your end users comply) with all relevant legislation applicable to use of the Internet.
- Wandera reserves the right, but shall have no obligation, to investigate your use of the Services in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
- You agree to defend, indemnify and hold Wandera, its Affiliates and their respective officers, directors, employees, consultants, and agents harmless from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.
- It is your responsibility to notify your end users that their mobile traffic may be monitored, and advise them of your acceptable usage policy. You are responsible for obtaining all necessary consents from any end users of the Services.
- Wandera reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case you agree to cooperate with Wandera’s defense of such claim.
Ownership of intellectual property
- Wandera and its licensors retain all right, title, and interest in and to the Software, including all intellectual property rights therein. The Software is protected by United States and other laws and international treaties. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.
- You acknowledge and agree that portions of the Software, including without limitation the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Wandera and its licensors.
- Wandera alone shall own all rights, title and interest evidenced by, embodied in, and/or related to the Services, including without limitation all related Intellectual Property Rights in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. For these purposes “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world and any goodwill associated therewith.
- Wandera’s name, trademarks, service marks, logos, and the product names associated with the Services are owned by Wandera or third parties who have licensed their rights to Wandera, and no right or license is granted hereunder to use them. Wandera acknowledges that your name, trademarks, service marks and logos, are owned by you or third parties who have licensed their rights to you, and no right or license is granted hereunder to use them.
- Neither party may adapt or use otherwise any name, mark or logo that is identical, or confusingly similar to any of the other party’s trademarks, service marks and logos.
- From time to time, Wandera performs scheduled maintenance to update the servers and software that are used to provide the Services. Wandera will make all reasonable attempts to notify you at least five business days in advance of any planned downtime or scheduled maintenance. Notwithstanding the foregoing, you acknowledge that Wandera may, in certain situations, need to perform emergency maintenance without any advance notice.
- Wandera reserves the right to make changes to the scope and content of the Services. Such changes will only become effective upon your renewal of the Services. If you do not agree to such change, then you may terminate the Services upon expiration of the then-current order term.
- Wandera reserves the right to modify and update the features and functionality of the Services. These updates may include any subsequent release or version of the Services containing functional enhancements, extensions, error corrections or fixes which are generally made available at no additional cost to customers who have contracted for the appropriate level of Services. Updates shall not include any release, option or future product which Wandera licenses separately or which is not included under the applicable level of support. Wandera will give you prior written notice of any material modification or update, and will ensure that any modifications or updates do not materially affect the performance or use of the Services.
Third party content
- In using the Services, you may access content, products and services provided by third parties. Wandera does not control these third parties or their links, and Wandera is not responsible for the content, products, materials or practices of any third party. You acknowledge that by using the Services you may be exposed to content that you find offensive, indecent or otherwise objectionable. You agree that Wandera is not responsible or liable for:
- the availability of such third-party websites or resources;
- the content, quality, nature, reliability, advertising, products or services on or available from such websites or resources as accessible through use of the Services; or
- any opinions, advice, offers or other information on or available from such websites or resources.
- You should refer to the policies posted by other websites regarding privacy and other topics before you use them. If you choose to purchase any products or services from a third party, your relationship is directly with the third party. You agree that Wandera is not responsible or liable for any loss or damage whatsoever which you may incur from dealing with any third party.
- For the purposes of this Agreement “Confidential Information” means proprietary and confidential Information received by either party from the other party in connection with this Agreement. Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party.
- The parties acknowledge that in connection with this Agreement and their relationship, they may obtain Confidential Information. The receiving party shall at all times keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the disclosing party under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent. Notwithstanding the above, Wandera shall be authorized to disclose your Confidential Information to contractors or employees of a Wandera Affiliate who have a legitimate business need to have access to such information.
- The receiving party shall immediately return to the disclosing party all Confidential Information (including copies thereof) in the receiving party’s possession, custody, or control upon termination or expiration at any time and for any reason of this Agreement.
- The obligations of confidentiality in this Section shall not apply to information which (i) has entered the public domain, except where such entry is the result of the receiving party’s breach of this Agreement; (ii) prior to disclosure hereunder was already rightfully in the receiving party’s possession; or (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information to the receiving party.
- The receiving party will be authorized to disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that (where permitted to do so) the receiving party provides (i) prior written notice to the disclosing party of such obligation and (ii) the opportunity to oppose such disclosure.
- Neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party. Any press release or publication regarding this Agreement is subject to prior review and written approval of the parties.
- In this Section 10 the terms “personal data”, “data processor” and “process/processing” shall have the same meaning as defined in the UK Data Protection Act 1998.
- We will comply with all applicable data protection and privacy laws in the provision of the Services to you including the EU Privacy Directive 2002/58/EC.
- We will only process data (whether personal data or otherwise) supplied to us or otherwise obtained by us in connection with this Agreement (the “Contract Data”) to the extent and in such manner as is necessary for the provision of the Services under this Agreement or is required by law or any regulatory body. The parties acknowledge that Wandera will only process such data as a data processor on your behalf.
- We will employ appropriate organisational and technical measures against unauthorised or unlawful processing of the Contract Data and against accidental loss, or destruction of, or damage, alteration or disclosure to the Contract Data. We will ensure a level of security appropriate to the harm that may result from such unauthorised or unlawful processing or accidental loss, destruction, damage, alteration or disclosure.
- We will promptly assist you in responding to any subject information requests received by you in respect of any of the Contract Data.
- We shall ensure that our employees who have access to the Contract Data for the purpose of this Agreement have undergone appropriate training in the care and handling of personal data.
- We undertake to notify you as soon as reasonably practicable of any incidents of unauthorised and/or unlawful access or disclosure of Contract Data.
- We will indemnify you and keep you indemnified against any costs, charges, claims (including third party claims), damages, expenses or losses which you may incur as a result of any breach of any of our obligations contained in this Section 10.
- Upon termination or expiry of this Agreement we will cease processing the Contract Data within 28 days of the expiry of this Agreement, and save as may be required for audit, regulatory purposes or to comply with any law, we will promptly and safely either return all Contract Data to you or destroy the Contract Data (whether held on electronic, paper or other format).
- You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You further agree to comply with any instructions concerning access to and/or use of the Services that Wandera may issue from time to time.
- Wandera acknowledges that you may be subject to laws or regulations applicable to your business relating to data privacy and information security (such as Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act, Health Information Technology for Economic and Clinical Health (HITECH) Act, Fair Credit Reporting Act, or Office of Controller of Currency guidelines) (hereinafter “Customer Regulations”). The parties do not expect that Wandera will use or have access to the types of information covered under the Customer Regulations in a way that would require Wandera to become subject to Customer Regulations. While Wandera may not itself be subject to Customer Regulations, Wandera will, upon request, provide you with commercially reasonable assistance and information necessary to enable you to comply with its own obligations under any applicable Customer Regulations. The parties acknowledge that Wandera is not agreeing to become subject to any Customer Regulations as a result of this Agreement (except where such regulations might already apply to Wandera as a result of Wandera’s own business).
- Wandera warrants that the Services, when properly installed and properly used, will substantially conform to the Service Description. This warranty is made solely to the Customer and is not transferable to any end user or other third party. Your sole and exclusive remedy for breach of warranty shall be, at Wandera’s option, prompt correction of any error or nonconformity; or termination of this Agreement and return of the portion of the service fees paid to Wandera by you for such non-conforming Services.
- Wandera shall have no liability for breach of warranty under this Section or otherwise for breach of this Agreement if such breach arises directly or indirectly out of or in connection with: (i) any third party hardware software, services or system(s); (ii) any unauthorized modification or alteration of the Services or related software; (iii) any unauthorized or improper use or operation of the Services.
- Except as specified above, Wandera hereby disclaims and you hereby waive all representations, conditions and warranties (whether express, implied, or statutory), including without limitation, any warranty or condition (i) of merchantability, fitness for a particular purpose, non-infringement, title, satisfactory quality, quiet enjoyment, accuracy, or (ii) arising from any course of dealing, course of performance, or usage in the industry.
- The warranties and related remedies in this Section are exclusive and in lieu of all other warranties or remedies, express, statutory, or implied. The disclaimers and exclusions in this Section shall apply even if the express warranties and limited remedies in this Section fail of their essential purpose.
- Because of the continuous evolution of the sophistication of network threats and infrastructure technologies, Wandera does not make, and it is acknowledged that Wandera cannot make any warranty or representation that any system attack or impacting incident will be detected or prevented.
- You acknowledge that the Services are not designed or intended by Wandera for use or resale in, or for incorporation into products or services used in high risk activities. Wandera specifically disclaims any express or implied warranty of any kind with respect to the use of the Services in connection with any high risk activity.
Support Service Levels
- Support services are available through Wandera’s Technical Helpdesk, which is operational 24 hours/day, seven days a week. Upon reporting the incident (via the telephone or email), the incident will be assigned a unique support ID number, which should be quoted in future correspondence.
- If Wandera’s support service is not able to help immediately, the request for service will be logged and Wandera will endeavor to respond to Customer as defined by the severities below.
|1 – Critical||An issue that prevents operation of critical documented functions with high frequency or duration.||80% of calls responded to within 1 hour|
|2 – Major||An issue that consistently prevents operation of non-critical documented functions or occasionally impacts critical documented functions or a Critical issue for which a temporary work around has been provided.||80% of calls responded to within 2 Hours|
|3 – Minor||An issue that has some impact on administration, non-critical operation or other secondary functions or a Major issue for which a temporary work around has been provided; or a request for an enhancement or additional functionality that is not due to a defect in the Services.||80% of calls responded to within 12 Hours|
|4 – Request||The service is unaffected. Customer request for product related technical advice.||Within 1 Day|
|5 – Question||The Services are unaffected. General information and feature questions related to the Services.||Within 2 Days|
- This table reflects the initial response times within which a Wandera engineer will endeavor to respond to you. Incident resolution may require multiple communications and off-line research before being brought to fruition. Wandera does not guarantee a “fix” during a response time.
- If, upon investigating the cause of the incident, Wandera determines that there is a defect in the Services, Wandera will try to provide a remedy in the form of a workaround, or another version of the Services that includes a bug fix for the specific defined problem.
- Customer is responsible for providing support information necessary to understand and resolve the incident. This information may include log files, configuration files and error messages.
Patent and copyright infringement
- Wandera will defend any claim against you that the use of the Services hereunder infringes third party patents or copyrights (“Claim”) and will indemnify you against the final judgment entered by a court of competent jurisdiction or any settlements arising out of a Claim, provided that you:
- promptly notify Wandera in writing of the Claim; and
- cooperate with Wandera in the defense of the Claim, and grant Wandera full and exclusive control of the defense and settlement of the Claim and any subsequent appeal.
- If a Claim is made or appears likely, Wandera shall seek to procure for you the right to continue using the Services, or replace or modify the Services in a way that is at least functionally equivalent. If Wandera determines that none of those alternatives is reasonably available, then the Services will be terminated and, if the Services was prepaid, Wandera will refund to you the remaining value of the Services calculated on a pro-rated basis for the remainder of the term.
- Wandera has no obligation for any Claim based on:
- compliance with any designs, specifications, or instructions provided by you or a third party on your behalf;
- modification of the Services by you or a third party;
- combination, operation, or use of the Services with non-Wandera products, software or business processes.
- This Section states Wandera’s entire obligation and your exclusive remedy regarding any claims for intellectual property infringement.
Limitation of liability
- All liability of Wandera, its Affiliates and their respective officers, directors, employees, agents and suppliers collectively for claims arising under this Agreement or otherwise howsoever arising shall be limited to the value of the Services under this Agreement during the 12 month period preceding the event or circumstances first giving rise to such liability. This limitation of liability is cumulative and not per incident (i.e. the existence of two or more claims will not enlarge this limit).
- In no event shall either party or its Affiliates or their respective officers, directors, employees, agents or suppliers be liable for any special, incidental, indirect or consequential damages, or lost revenue, lost profits, or lost or damaged data, whether arising in contract, tort (including negligence), or otherwise, even if such party has been informed of the possibility thereof. This subsection shall not apply in relation to damages resulting from your breach of the applicable license provisions.
- Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
Term and termination
- The term for the performance of the Services shall be specified on the Order Form, and the terms and conditions of this Agreement shall survive and apply to the Services until completion. Upon the expiration of the Initial Term, the Service may be renewed by your submitting a further Purchase Order.
- This Agreement and the Services may be terminated immediately by either party upon written notice:
- if the other party materially breaches any provision of this Agreement and the breach is not capable of being cured or if the breaching party fails to cure such breach within 30 days after being required to do so by the party not in breach; or
- if: (i) the other party ceases to carry on business as a going concern; or (ii) the other party becomes or may become the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation; or (iii) a receiver or similar officer is appointed with respect to the whole or a substantial part of the other party’s assets; or (iv) an event similar to any of the foregoing occurs under applicable law with respect to the other party; or
- if so directed by a court or competent authority.
- If any undisputed fee is not paid when due and payment has not been received within 10 days after notice of such past due payment, Wandera may withhold the provision of the Services until all amounts past due are paid in full, and/or terminate immediately this Agreement and the Services.
- Upon termination of the Agreement, you shall pay for the Services up to the effective date of termination.
- Wandera shall have the right to suspend or terminate the Services, and to take such defensive action as it considers necessary in the event of any attack upon the Services. An attack is a deliberate third party action that significantly affects the Services, e.g. a Distributed Denial of Service (DDoS) attack.
- Neither party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld or delayed, provided that Wandera may, without your consent, assign the right to receive any amount due. Notwithstanding the foregoing, each party may assign this Agreement and any right or obligation under it to an Affiliate without the other party’s approval. Notwithstanding any assignment by you, you shall remain liable for the payment of all amounts due under this Agreement
- Wandera reserves the right to subcontract Services to a third party to provide the Services to you. Any such subcontract shall not relieve Wandera of any of its obligations under this Agreement.
- All notices required or permitted under this Agreement will be in writing and will be deemed given one day after deposit with a commercial express courier specifying next day delivery (or two days for international courier packages specifying two-day delivery), with written verification of receipt. All communications will be sent to the addresses specified on the Purchase Order or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph. Notwithstanding the above, notices regarding general changes in pricing, policies or programs may also be by posting on Wandera.com or by e-mail.
- This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties, except as agreed between the parties. There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein. This Agreement may only be modified by a written document executed by both parties.
- Wandera reserves all rights not expressly granted to you under this Agreement.
- The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
- If one or more terms of this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by written notice with immediate effect to the other.
- In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive expiration or termination and shall not be merged into any such judgment.
- This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor.
- This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and together which shall constitute one and the same instrument. A validly executed counterpart that is delivered by one party to the other via electronic transmission (a “Counterpart Image”) shall be valid and binding to the same extent as one delivered physically, provided that the valid signature is clearly visible in the Counterpart Image. If a party delivers a Counterpart Image in place of an originally-executed counterpart, such party shall retain the originally-executed counterpart in its files for at least the duration of the term of this Agreement.
- This Agreement may be entered into, extended, renewed or amended by electronic means by accepting terms and conditions on-line and the provisions of any such extension, renewal or amendment shall for all purposes be legally enforceable and binding on the parties as if the Agreement were entered into, extended, renewed or amended in writing and signed by all parties. This Agreement shall be deemed signed and thus the terms hereof agreed to, if you click on the ‘Accept’ button and thereby accept this Agreement. All references to writing in this Agreement shall be deemed to include any on-line acceptance, and all references to signature shall include on-line acceptance. You waive any challenge to the validity or enforceability of this Agreement or any renewals, extensions or amendments to this Agreement or the terms of any of the foregoing on the grounds that the terms of any agreement, renewal, extension or amendment were presented on-line or electronically or acceptance of such agreement renewal, extension or amendment was electronically transmitted or accepted.
- You agree that these terms are not intended to confer and do not confer any rights or remedies upon any person other than you and Wandera.
- These Terms shall be governed by and interpreted in accordance with the laws of the State of California. Notwithstanding the foregoing, each party shall have the right at any time to institute an action in any court of proper jurisdiction for injunctive or other equitable relief.