IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE:
This licence agreement is a legal agreement between you (Licensee
or you) and the Publisher Mobgets Ltd and its Providers (Licensors
or we) for the software product, which includes computer software,
any download including music, the data supplied with it, the associated media, and
online or electronic documentation.
BY INSTALLING THIS SOFTWARE OR BY REGISTERING WITH US YOU AGREE
TO THE TERMS OF THIS LICENSE AND OR ANY INDVIDUAL LICENCE ATTACHED TO THE SOFTWARE
WHICH WILL BIND YOU AND OR ANY PARTY YOU ARE REPRESENTING. IF YOU DO NOT AGREE TO
THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU
MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW.
1.1 "Publisher" Mobgets Limited incorporated and registered in England and Wales
with company number 06151449 whose registered office is at The Triangle, 33 Parkgate
Rd, London SW11 4NP, United Kingdom that owns and operates the Portal.
1.2 "Portal" means any service or service point provided by the Publisher such as
1.3 "Mobget" (singular) or "Mobgets" (plural) means computer software for use with
a Device, both words trademarked and protected by intellectual property law;
1.4 "Device" means your piece of hardware, biological structure or computer system
capable of executing and running software.
1.5 "Download" means the delivery of Products or Software to the Device;
1.6 "You" the licensee means the individual or organisation who agrees to buy Products
and/or Services from the Publisher where you will have the meaning as ascribed in
section 12 of the Unfair Contract Terms Act 1977;
1.7 "Products" or "Software" refer to any digital asset such as text, images, sound,
music, streaming media, video, mobgets, and the like.
1.8 "Services" means the services that you agree to buy from the Publisher;
1.9 "Contract" means the contract between the Publisher and you for the sale, purchase
1.10 "Provider" means companies or third parties that supply the Product to the
1.11 "Carriers" means the telecoms provider supplying you with any connectivity
or services to the Device;
1.13 "Third Party" means any other company, affiliate, or any other entity not directly
tied to the primary product.
2. GRANT AND SCOPE OF LICENSE
2.1 In consideration of you agreeing to abide by the terms of this Licence, the
Licensor hereby grants to you a non-exclusive, non-transferable licence to use the
Software and the Documentation on the terms of this Licence.
2.2 You may:
install and use the Software for your private or internal business purposes only,
either (as agreed between the parties):
on one device if the Licence is a single-user licence or the Software is for single
if the Licence is a multi-user or network licence, for the number of concurrent
users agreed between you and us;
transfer the Software from one computer to another provided it is used on only one
computer at any one time;
make up to one copy of the Software for back-up purposes only, provided that this
is necessary for the activities permitted by condition 3;
receive and use any free supplementary software code or update of the Software incorporating
"patches" and corrections of errors as may be provided by the Licensor from time
use any Documentation in support of the use permitted under condition 2.1 and make
up to one copies of the Documentation as are reasonably necessary for its lawful
3. LICENSEE'S UNDERTAKINGS
3.1 Except as expressly set out in this Licence or as permitted by any local law,
not to copy the Software or Documentation except where such copying is incidental
to normal use of the Software or where it is necessary for the purpose of back-up
or operational security;
not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the
Software or Documentation;
not to make alterations to, or modifications of, the whole or any part of the Software
nor permit the Software or any part of it to be combined with, or become incorporated
in, any other programs;
not to disassemble, de-compile, reverse engineer or create derivative works based
on the whole or any part of the Software nor attempt to do any such things 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 purpose
of achieving inter-operability of the Software with another software program, and
provided that the information obtained by you during such activities:
is used only for the purpose of achieving inter-operability of the Software with
another software program;
is not disclosed or communicated without the Licensor's prior written consent to
any third party to whom it is not necessary to disclose or communicate it; and
is not used to create any software which is substantially similar to the Software;
to keep all copies of the Software secure and to maintain accurate and up-to-date
records of the number and locations of all copies of the Software;
to supervise and control use of the Software and ensure that the Software is used
by your employees and representatives in accordance with the terms of this Licence;
to replace the current version of the Software with any free or purchased updated
or upgraded version or new release provided by the Licensor under the terms of this
Licence immediately on receipt of such version or release;
to include the copyright notice of the Licensor on all entire and partial copies
of the Software in any form;
not to provide, or otherwise make available, the Software in any form, in whole
or in part (including, but not limited to, program listings, object and source program
listings, object code and source code) to any person including your employees without
prior written consent from the Licensor;
3.2 You must permit the Licensor and representatives, at all reasonable times and
on reasonable advance notice, to inspect and have access to any premises, and to
the Devices located there, at which the Software or the Documentation is being kept
or used, and any records kept pursuant to this Licence, for the purpose of ensuring
that you are complying with the terms of this Licence.
USE OF PORTAL
4.2 These Terms shall apply to all Contracts for the sale of Products and/or Services
by the Publisher to you and shall prevail over any other documentation or communication.
4.3 You agree to not access the Portal through any other means than those provided
by the Publisher unless otherwise agreed.
4.4 Use of the Portal or of Download of the Product in any way shall be deemed evidence
of your acceptance of the Terms.
4.5 You shall not in any way cause disruption to the Portal by any means or use
the Products found on the Portal to cause any disruption to the Publisher, Providers
or Third Parties.
4.6 You agree to abide by any laws applicable to your jurisdiction and any conditions
as outlined in these Terms including but not limited to, copyright law, intellectual
property law and tax laws.
4.7 The Portal may ask you for your personal details, including but not limited
to your name, country of residence, age, billing address and so forth and where
it does so, you agree those are correct, accurate and kept up-to-date.
4.8 Any content that you submit to the Portal you retain that copyright and any
other rights you already hold with the content. By submitting content to the Portal
you give the Publisher the authority to distribute the content which you submit.
You give the right to the Publisher to be able to distribute this content to any
other Third Party. You confirm and agree to the Publisher that you own all the rights
of the content.
4.9 You agree to comply with any other licences that may apply to the Product enforced
by the Publisher or Provider.
4.10 The Product is non refundable except as permitted by the Publishers Return
Policy. You agree that the Contract provided in conjunction with the Product or
Services is subject to the Publishers Return Policy, which is subject to change
4.11 The Publisher reserves the right to withdraw any Product and/or Service from
the Portal at any time.
4.12 Where confidential information as supplied to you by the Publisher and or its
Providers, confidentiality should be maintained by you at all times and that each
party respects each other’s confidentiality.
4.13 The Publisher shall not be liable to anyone for withdrawing any Product and/or
Service from the Portal or for refusing to process an order.
5. AGE OF CONSENT
5.1 Where Contracts may only be purchased by persons of a certain age you will be
asked when placing an order to declare you are of the appropriate legal age.
5.2 If the Publisher discovers that you are not legally entitled to the Contract,
the Publisher shall be entitled to cancel the order immediately, without notice.
6.1 All Contracts shall be deemed to be an offer by you to purchase Products and/or
Services pursuant to these Terms and are subject to acceptance by the Publisher.
The Publisher may choose not to accept a Contract for any reason.
6.2 Where the Product ordered by you is not available for download after a maximum
period of seven days you shall be notified and given the option to either wait until
the Product is available or request for a refund as outlined in the Publishers Refund
6.3 When making an order through the Portal, the technical steps you must take to
complete the Contract is described in the check out process in the Portal.
7. PRICE, PAYMENT AND DELIVERY
7.1 The Publisher reserves the right to periodically update prices on the Portal,
which cannot be guaranteed for any period of time. The Publisher shall make every
effort to ensure prices are correct at the point at which you place an order.
7.2 The price of the Product and/or Services shall be that stipulated on the Portal
where price is exclusive of VAT or any other applicable tax.
7.3 The total purchase price, including any tax and delivery charges will be displayed
in your shopping cart and confirmation page prior to confirming the order. Payment
of the price plus tax, if applicable, must be made before download of Product.
7.4 You agree to abide by any Terms from payment providers used by the Portal as
means of paying for Products.
7.5 After the order is received the Publisher shall confirm by email the details,
description and price for the Contract. The Publisher does not accept liability
for any loss of communication provided where responsibility lies entirely with you.
7.6 Where applicable, if any payment is not paid on time or any payment is rejected
or refused, the amount owing will be treated as overdue and the Publisher will be
entitled immediately to cease or suspend the Contract until payment has been received.
7.7 Where applicable, the Publisher shall be entitled to charge interest on overdue
invoices from the date when payment becomes due from day to day until the date of
payment at a rate of 3% per annum above the base rate of The Bank of England.
7.8 The Publisher shall use its reasonable endeavours to meet any date agreed for
delivery. In any event time of delivery shall not be of the essence and the Publisher
shall not be liable for any losses, costs, damages or expenses incurred by you or
any Third Party arising directly or indirectly out of any failure to meet any estimated
7.9 Download of the Product shall be made available through a link, which in turn
will be accessible through the Device, specified in the order and you shall make
all arrangements necessary to take Download of the Product.
7.10 Risk of Download of the Product at the time Download was attempted shall pass
to you or where you fail to take Download at the agreed time.
8. GIFT VOUCHERS
8.1 Gift vouchers may be exchanged for Products at the Portal. Vouchers cannot be
redeemed for cash in part or whole. Vouchers are not sold on a sale or return basis
and no return will be permitted unless it can be demonstrated that the Publisher
has been in error fulfilling your order.
8.2 Gift vouchers will be dispatched within one hour of acceptance of order being
delivered by email to the email address given by you at the time the order was placed.
Payment must be made in full before the dispatch of vouchers.
8.3 You must notify the Publisher of any discrepancy in Download as soon as possible
but in any event within seven days of the delivery of the vouchers.
8.4 Risk of loss, destruction or damage to the vouchers remains with the Publisher
until delivery to you where upon risk shall pass to you.
8.5 Gift vouchers are valid for three months from the date of purchase, or where
otherwise expressed as valid, and cannot be renewed once they have expired. Vouchers
cannot be replaced if lost or damaged.
If you purchase of the Download on which the Software is recorded, the Publishers
or Providers technical support staff will endeavour to answer by email any queries
within one working business day which you, as the original registered purchaser,
may have regarding the use or application of the Software. We are committed to providing
you with the best customer support we can deliver.
The Publisher and or Providers may provide you with registration keys to activate
your product upon purchase. You must make every effort to keep records of the registration
key and that the key provided to you is not distributed to other persons or any
other third party.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 You acknowledge that all intellectual property rights in the Software and the
Documentation throughout the world belong to the Licensor, that rights in the Software
are licensed (not sold) to you, and that you have no rights in, or to, the Software
or the Documentation other than the right to use them in accordance with the terms
of this Licence.
11.2 You acknowledge that you have no right to have access to the Software in source
code form or in unlocked coding or with comments unless specially granted.
11.3 The integrity of this Software is generally protected by technical protection
measures (TPM) so that the intellectual property rights, including
copyright, in the Software of the Licensor are not misappropriated. You must not
attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture
for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for
sale or hire, nor have in your possession for private or commercial purposes, any
means whose sole intended purpose is to facilitate the unauthorised removal or circumvention
of such TPM.
12. DISCLAIMER OF WARRANTIES
12.1 The Publisher and its Providers disclaim any warranties of any kind regarding
your use of the Product and that the Product is provided to you "as is" without
warranty of any kind, to the maximum extent as permitted by applicable law.
12.2 The Publisher and the Provider has tested the Software for viruses using commercially
available virus-checking software, consistent with current industry practice. However
you acknowledge that the Publisher and Provider do not guarantee that the software
is free of defects, viruses, trojan horses, worms, and the like, files or programs
designed to disrupt, interrupt, disable, damage, destroy or limit the functionality
of any of your systems and that you acknowledge, understand, and agree that the
software may contain defects or may not work as expected.
12.3 You acknowledge that the Software has not been developed to meet your individual
requirements and that it is therefore your responsibility to ensure that the facilities
and functions of the Software as described in the Documentation, if provided, meet
12.4 The Publisher is not responsible for any delay, disruptions or interferences
with download or use of the Product relating to any issue from any Carrier or Provider
service nor shall bare any costs incurred including but not limited to charges or
internet charges, for recovery of the Product.
12.5 You acknowledge that the Software may not be free of bugs or errors and you
agree that the existence of any minor errors shall not constitute a breach of this
12.6 If you notify the Licensor in writing of any defect or fault in the Software
in consequence of which it fails to perform substantially in accordance with the
Documentation, and such defect or fault does not result from you having amended
the Software or used it in contravention of the terms of this Licence, the Licensor
will, at its sole option, repair or replace the Software, provided that you make
available all information that may be necessary to assist the Licensor in resolving
the defect or fault, including sufficient information to enable the Licensor to
recreate the defect or fault.
12.7 The Publisher shall perform the Contract with reasonable skill and care. However,
where applicable, the Publisher does not guarantee that the Contract will be uninterrupted,
secure or error-free or that any data generated, stored, transmitted or used via
or in connection with the Contract will be complete, accurate, secure, up to date,
received or delivered correctly or at all. The Publisher may have to suspend the
Services for repair, maintenance or improvement and reserves the right indefinitely
for whatever time scale it feels it needs to perform its Contract.
13. LICENSOR'S LIABILITY
13.1 Nothing in this Licence shall limit or exclude the liability of either party
for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation,
or deliberate personal repudiatory breaches of this agreement.
13.2 Subject to condition 13.1, the Licensor's liability for losses suffered by
you arising out of or in connection with this agreement (including any liability
for the acts or omissions of its employees, agents and subcontractors), whether
arising in contract, tort (including negligence), misrepresentation or otherwise,
shall be limited as follows, even if such losses result from the Licensor's deliberate
personal repudiatory breach of this agreement:
loss of income;
loss of business profits or contracts;
loss of the use of money or anticipated savings;
loss of information;
loss of opportunity, goodwill or reputation;
loss of, damage to or corruption of data; or
any indirect or consequential loss or damage of any kind howsoever arising and whether
caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 13.2 shall not prevent claims for loss of or damage
to your tangible property that fall within the terms of condition 12 or any other
claims for direct financial loss that are not excluded by any of categories (a)
to (h) inclusive of this condition 13.2.
13.3 Subject to condition 13.1 and condition 13.2, the Licensor's shall have no
liability under or in connection with this Licence, or any collateral contract,
whether in contract, tort (including negligence) or otherwise.
13.4 Subject to condition 13.1, condition 13.2 and condition 13.3, the Licensor's
liability for infringement of third party intellectual property rights shall be
limited to breaches of rights subsisting in the UK.
13.5 This Licence sets out the full extent of the Licensor's obligations and liabilities
in respect of the supply of the Software and Documentation. In particular, there
are no conditions, warranties, representations or other terms, express or implied,
that are binding on the Licensor except as specifically stated in this Licence.
Any condition, warranty, representation or other term concerning the supply of the
Software and Documentation which might otherwise be implied into, or incorporated
in, this Licence, or any collateral contract, whether by statute, common law or
otherwise, is hereby excluded to the fullest extent permitted by law.
14.1 The Licensor may terminate this Licence immediately by written notice to you
You commit a material or persistent breach of this Licence which you fail to remedy
(if remediable) within 14 days after the service on you of written notice requiring
you to do so; or
a petition for a bankruptcy order to be made against you has been presented to the court; or
the Licensee (where it is a company) becomes insolvent or unable to pay its debts
(within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation,
whether voluntary or compulsory (other than for reasons of bona fide amalgamation
or reconstruction), passes a resolution for its winding-up, has a receiver or administrator
manager, trustee, liquidator or similar officer appointed over the whole or any
part of its assets, makes any composition or arrangement with its creditors or takes
or suffers any similar action in consequence of its debt, or becomes unable to pay
its debts (within the meaning of section 123 of the Insolvency Act 1986).
14.2 Upon termination for any reason:
all rights granted to you under this Licence shall cease;
you must cease all activities authorised by this Licence;
you must immediately pay to the Licensor any sums due to the Licensor under this Licence; and
you must immediately delete or remove the Software from all computer equipment in
your possession and immediately destroy or return to the Licensor (at the Licensor's
option) all copies of the Software then in your possession, custody or control and,
in the case of destruction, certify to the Licensor that you have done so.
15. TRANSFER OF RIGHTS AND OBLIGATION
15.1 This Licence is binding on you and us and on our respective successors and
15.2 You may not transfer, assign, charge or otherwise dispose of this Licence,
or any of your rights or obligations arising under it, without our prior written
15.3 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose
of this Licence, or any of his rights or obligations arising under it, at any time
during the term of the Licence.
16. EVENTS OUTSIDE THE LICENSOR'S CONTROL
16.1 The Licensor will not be liable or responsible for any failure to perform,
or delay in performance of, any of his obligations under this Licence that is caused
by an event outside his reasonable control (Force Majeure Event)
16.2 A Force Majeure Event includes any act, event, non-happening, omission or accident
beyond our reasonable control and includes in particular (without limitation) the
strikes, lock-outs or other industrial action;
civil commotion, riot, invasion, terrorist attack or threat of terrorist attack,
war (whether declared or not) or threat or preparation for war;
fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural
impossibility of the use of railways, shipping, aircraft, motor transport or other
means of public or private transport;
impossibility of the use of public or private telecommunications networks;
the acts, decrees, legislation, regulations or restrictions of any government.
16.3 The Licensor's performance under this Licence is deemed to be suspended for
the period that the Force Majeure Event continues, and he will have an extension
of time for performance for the duration of that period. We will use our reasonable
endeavours to bring the Force Majeure Event to a close or to find a solution by
which our obligations under this Licence may be performed despite the Force Majeure
17.1 If the Licensor fails, at any time during the term of this Licence, to insist
on strict performance of any of your obligations under this Licence, or if the Licensor
fails to exercise any of the rights or remedies to which he is entitled under this
Licence, this shall not constitute a waiver of such rights or remedies and shall
not relieve you from compliance with such obligations.
17.2 A waiver by the Licensor of any default shall not constitute a waiver of any
17.3 No waiver by the Licensor of any of these terms and conditions shall be effective
unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Licence are determined by any competent authority to
be invalid, unlawful or unenforceable to any extent, such term, condition or provision
will to that extent be severed from the remaining terms, conditions and provisions
which will continue to be valid to the fullest extent permitted by law.
19. ENTIRE AGREEMENT
19.1 This Licence and any document expressly referred to in it represents the entire
agreement between us in relation to the licensing of the Software and Documentation
and supersedes any prior agreement, understanding or arrangement between us, whether
oral or in writing.
19.2 We each acknowledge that, in entering into this Licence, neither of us has
relied on any representation, undertaking or promise given by the other or implied
from anything said or written in negotiations between us before entering into this
Licence except as expressly stated in this Licence.
19.3 Neither of us shall have any remedy in respect of any untrue statement made
by the other, whether orally or in writing, prior to the date we entered into this
Licence (unless such untrue statement was made fraudulently) and the other party's
only remedy shall be for breach of contract as provided in this Licence.
20. LAW AND JURISDICTION
This Licence, its subject matter or its formation (including non-contractual disputes
or claims) shall be governed by and construed in accordance with English law and
submitted to the non-exclusive jurisdiction of the English courts.