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NETDUMA LTD CONSUMER PRODUCT END USER LICENSE AGREEMENT

  1. Introduction

    1. The definitions referred to in clauses 2 apply throughout the entire Agreement.

    2. The parties to the Agreement include first, Netduma Limited ("Netduma") a company registered in England and Wales number 07497799 whose registered office is 145-157 St John Street, London EC1V 4PW, United Kingdom and secondly, you the User.

    3. These terms and conditions will apply to the Agreement to the exclusion of any other terms or conditions you seek to impose or incorporate, or which are implied by any trade, custom, practice or course of dealing.

  2. Interpretation

IT IS IMPORTANT YOU READ THESE TERMS AND CONDITIONS BEFORE YOU ACCEPT THEM.

In the Agreement, the following words and expressions will (unless the context will otherwise require) bear the following meanings:

"Agreement" the terms and conditions of this end user licence agreement.

"Netduma" Netduma Limited. In this Agreement all references to "we", "us" and "our" refer to Netduma Limited.

"Netduma Software" Netduma Software Limited.

The "User" the person entering into this Agreement and by accepting the terms and conditions of Netduma set out upon the Website giving you the license rights and references to "you", "your" and "yours" refer to the User.

"Website" the online e-commerce website operated by Netduma and located at www.netduma.com

"Product" the hardware electronic router together with Software

"Software" the software developed by Netduma Software and licensed to Netduma for use in the Product;

"Hardware" the electronic router device plus any related components including but not limited to power adaptors.

"Firmware" Software programmed into read-only memory on the Hardware's flash memory.

"Documentation" means any documentation provided to you by us (whether electronic or printed which accompanies the Product).

"Shop" the online e-commerce website operated by Netduma and located at www.netduma.com.

"I agree checkbox" the Shop web page that requires the form checkbox to be "ticked" (as defined below) by you to signify you agree to the terms and conditions of this Agreement.

"Tick", "ticked", "ticking" means clicking on the Netduma Shop web page form checkbox to display a tick or other mark so as to show that you have agreed with the statement associated with the checkbox.

"Unit" the location where you ordinarily operate the licensed Product where one or several devices are connected, controlled or capable of being controlled by the Product. Such devices include but not limited to

personal computers, smart phones and tablets.

"Feedback" any comments, information, opinions, or suggestions that you provide to us about the Software.

    1. The headings in the Agreement are inserted for convenience only and will not affect its construction.

    2. Where appropriate words denoting a singular number will include the plural and vice versa and references to one gender will include a reference to the other gender.

    3. References to clauses are intended to mean the clauses of the Agreement.

    4. Any reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

    5. Where the Agreement places an obligation on a party to do something or not to do something, it will be sufficient for that party to procure it to be done or not to be done.

    6. Unless the context requires otherwise, "including" means "including but not limited to" and "includes" means "includes but is not limited to."

3. FORMATION

3.1 BY USING THE PRODUCT, UPGRADING, DOWNGRADING OR CHANGING THE PRODUCT'S FIRMWARE AND/OR TICKING THE "I AGREE CHECKBOX" ON THE NETDUMA WEB SHOP WHEN PURCHASING THE PRODUCT, YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORISED REPRESENTATIVE) AGREE TO ALL OF THE TERMS OF THIS AGREEMENT REGARDING YOUR USE OF THE PRODUCT. YOU WILL TAKE ALL NECESSARY STEPS TO ENSURE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT VIOLATED BY ANY PERSON OR ENTITY UNDER YOUR CONTROL OR IN YOUR SERVICE.

3.2 IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT TICK THE "I AGREE CHECKBOX" WHEN PURCHASING THE PRODUCT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENSE AGREEMENT YOU ARE NOT AUTHORISED TO USE THE PRODUCT FOR ANY PURPOSE WHATSOEVER. FOR AVOIDANCE OF DOUBT, NO PURPORTED ORDERS SHALL BE ACCEPTED BY NETDUMA UNLESS YOU TICK THE "I AGREE CHECKBOX" IN THE WEB SHOP.

3.3 BY INSTALLING UPGRADES, DOWNGRADES OR CHANGES TO THE FIRMWARE YOU THEREBY AGREE TO BE BOUND BY ANY ADDITIONAL LICENSE TERMS AND CONDTIONS THAT ACCOMPANY SUCH UPGRADES, DOWNGRADES OR CHANGES TO THE FIRMWARE.

3.4 IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT GRANTED ANY RIGHTS IN THE PRODUCT, AND YOU SHOULD NOT USE THE PRODUCT.

4. CONSENT TO BE BOUND

4.1 This Agreement covers all Software, Software upgrades, downgrades, changes to the Firmware, the associated media, any printed materials, data, files and information on the Hardware and its physical memory and flash drive supplied by Netduma.

4.2 This Agreement takes precedence over any other agreement or terms embedded within the Product. You agree to be bound by the terms and conditions of the Agreement. You further agree that any person you authorise to use the Product will also be bound by the terms and conditions of this Agreement. For the avoidance of doubt the hyperlink embedded in the Product which brings you to this Agreement is not excluded.

4.3 By ticking the "I agree checkbox" option on the Shop, or by using, upgrading, downgrading, accepting changes to the Firmware or otherwise using this Product, you agree to be bound by the terms and conditions of this Agreement.

4.4 If you do not agree with any term or condition, you are not authorised to download, purchase, upgrade, replicate or use the Product in any way whatsoever. If applicable, you may return the Product and any accompanying items (including any written materials and packaging) to Netduma together with proof of purchase. You are not authorised to use the Product for any purpose whatsoever. Full details of our returns policy are available on our website www.netduma.com.

4.5 In addition, certain third party code may be provided with the Product. The third-party license terms, and not the terms of this Agreement, will govern your use of such code.

4.6 By installing, copying or otherwise using upgrades, downgrades or any changes made to the Firmware from Netduma, you agree to be bound by any additional license terms that accompany such upgrades, downgrades or changes. If you do not agree to the additional license terms that accompany such upgrades, downgrades or changes you may not install copy or use such upgrades, downgrades or any changes made to the Firmware from Netduma and its licensor.

4.7 Where a reseller, service provider, consultant, contractor or other party downloads or otherwise provides the Product for you and/or installs or activates the Product on your behalf prior to your use of the Product, such reseller, service provider, consultant, contractor or other party will be deemed to be your agent acting on your behalf and you will be deemed to have accepted all of the terms and conditions of this EULA as if you had directly ticked the "I agree checkbox" and to have upgraded, downloaded, accepted changes, installed or used the Product.

5. GRANT OF LICENSE

5.1 Subject to the payment of the Product purchase fee, and subject to the terms and conditions of this Agreement, Netduma hereby grants to you a non-exclusive license (without the right to sub-license) to use the Software. Risk of loss passes to you on payment of the purchase fee referred to above and upon delivery of the Product.

6. RIGHTS

6.1 We grant to you a non-exclusive right to:-

6.2 Use the licensed Product, subject to the terms and conditions contained within this Agreement, for your own non-commercial purposes. YOU MUST NOT USE THE SOFTWARE FOR COMMERCIAL PURPOSES WITHOUT OBTAINING A LICENSE TO DO SO FROM NETDUMA.

6.3 Use, access, display and run the Product in a single Unit.

7. YOUR PRIVACY

7.1 Your data (packet payload) is stored temporarily as it is routed through the Product. Otherwise this data is never stored or analysed.

8. PROOF OF PAYMENT OF LICENSE FEE

8.1 This Agreement represents the terms and conditions under which the Software has been licensed to you. Please print a copy of it, treat it as valuable property and keep it in a safe place. This Agreement together with a receipt, invoice or other payment documentation is your only proof that you have a valid license to the Software. These are the documents you will need to produce to prove payment of fee for the license of the Software.

9. COPYRIGHT AND OWNERSHIP RIGHTS

9.1 You acknowledge that no title to the intellectual property in the Software is transferred to you.

9.2 Title, ownership, rights, and intellectual property rights in and to the Software shall remain that of Netduma Software Limited (registered number: 9421043) whose registered office is at 20- 22 Wenlock Road London N1 7GU United Kingdom;

9.3 Any software owned by third parties will be governed by their license terms and conditions. The term Software and Product does not include software under General Public License (GNU) or other free software licenses embedded in the Product. For GNU software obligations please see our site www.netduma.com.

9.4 The Software is licensed, not sold to you. The license confers no title or ownership in the Software to you.

9.5 All right, title, interest and ownership rights in the Software and any copyright, design right, database right, patents and any rights to inventions, know-how, concepts, logic, specifications, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications thereof and other intellectual property rights, in or connected with the Software and each part thereof (including by way of example only any titles, code, themes, objects, catchphrases, concepts, artworks, animations, sounds, music, audio-visual effects and methods of operation) are owned by, belong to and vest in Netduma Software or its licensors.

9.6 The Software is protected by copyright law, international copyright treaties and conventions and other laws. All rights are asserted and reserved. You agree to prevent any unauthorised copying of the Software. Except as expressly provided herein, Netduma does not grant any express or implied right to you under Netduma Software patents, copyrights, trademarks, or trade secret information. Your possession, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. Except as otherwise provided by law, anyone who reproduces or distributes the Software without our permission is subject to civil and criminal penalties

9.7 The User will prevent any unauthorised copying of the Software, whether by himself or by persons acting under the control of the User.

9.8 Except as expressly provided in the Agreement, Netduma does not grant any express or implied right to the User under Netduma patents, copyrights, trademarks, or trade secret information. For the avoidance of doubt, the User's possession, or use of the Software does not transfer to the User any title to the intellectual property in the Software, and the User will not acquire any rights to the Software except as expressly set forth in the Agreement.

9.9 Netduma Software and any third party suppliers retain any and all the intellectual property rights in the software, and you acknowledge that the Hardware is sold to you solely as the medium for the delivery and operation of the licensed Software and, unless otherwise agreed by the parties in writing, Netduma at its option may provide Hardware that is either new or refurbished or from various different manufacturers. Netduma will ensure as far as practicably possible that the replacement Hardware will be of the same or greater capability.

9.10 UPDATES/UPGRADES

9.11 Subject to the terms and conditions of this Agreement, updates and upgrades to the software may be provided by Netduma from time to time upon the terms and conditions offered at that time by us at our sole discretion. We may provide updates and upgrades for free or for any charge, at any time or never, and through our chosen manner of access and distribution, all at our discretion.

10. RIGHTS LICENSE TERM

10.1 This Agreement starts when you get delivery of the Product and/or upgrade, downgrade, accept changes or otherwise use this Product, and shall continue until terminated as provided in Clause 34 below.

10.2 Your obligations under this Agreement in respect of the intellectual property and confidential information of Netduma and its licensor shall survive any expiry or termination of this Agreement.

11. RESTRICTIONS ON GRANT

11.1 Except as otherwise specifically permitted in this Agreement:-

      1. You shall not use the Software for the provision of any service for the benefit of third parties;

      1. You shall not modify or create any derivative works of any Software or Documentation, including translation or localisation (code written to published Application Programming Interfaces (APIs) for the Software shall not be deemed derivative works);

      1. You shall not copy the Software except as provided in this Agreement or elsewhere by Netduma;

      1. You shall not separate the Software, which is licensed as a single product, into its component parts;

      1. You shall not sub-license or permit simultaneous use of the Software by more than one Unit;

      1. You shall not reverse engineer or otherwise reduce to human readable form, decompile, or disassemble or otherwise attempt to derive or determine the source code or the logic therein for the Software (except to the extent applicable laws specifically prohibit such restriction);

      1. You shall not redistribute, encumber, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to any Software;

      1. You shall not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product;

      1. YOU SHALL NOT USE THE SOFTWARE FOR COMMERCIAL USES.

      1. You shall not tamper with, disassemble, misuse, neglect or damage the Product.

12. WARRANTY AND DISCLAIMER

12.1 YOU WARRANT AND REPRESENT TO NETDUMA THAT YOU HAVE THE LEGAL RIGHT AND AUTHORITY TO ENTER INTO AND PERFORM THE OBLIGATIONS UNDER THIS AGREEMENT. YOU REPRESENT THAT YOU ARE OF SOUND MIND AND OF MAJORITY AGE.

12.2 NETDUMA WARRANT TO YOU THAT THE SOFTWARE HAS BEEN DULY DESIGNED, PROGRAMMED AND TESTED BY NETDUMA, TO BE AS FREE FROM ERROR AS IS REASONABLE.THE PRODUCT WILL PERFORM SUBSTATIALLY IN ACCORDANCE WITH DOCUMENTATION PROVIDED.

12.3 WE DO NOT WARRANT THAT THE SOFTWARE OR SERVICE WILL BE ERROR- FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT THERE WILL BE NO MALFUNCTIONS OR OTHER ERRORS IN THE SOFTWARE CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR MALICIOUS CODE NOT INTRODUCED OR DEVELOPED BY OUR LICENSOR, OR THAT THE SOFTWARE OR SERVICE WILL MEET YOUR REQUIREMENTS.

12.4 THE PRODUCT WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION PROVIDED.

12.5 AND THE HARDWARE ON WHICH THE SOFTWARE IS CONTAINED AND PROVIDED TO YOU WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.

12.6 PLEASE NOTIFY US PROMPTLY IN WRITING ABOUT ANY FAULT WITH THE HARDWARE WITHIN 14(FOURTEEN) DAYS OR AS SOON AS REASONABLY POSSIBLE FOLLOWING DISCOVERY OF SUCH FAULT. IF YOU NOTIFY NETDUMA OF A FAULT, NETDUMA WILL ENDEAVOUR TO CORRECT OR REPLACE THE HARDWARE AND/OR DOCUMENTATION WITHIN A REASONABLE TIME. YOU WILL FIRST INFORM US IN WRITING STATING CLEARLY THE DEFECT OF THE PRODUCT. YOU WILL FOLLOW THE RETURN INSTRUCTIONS SET OUT IN RETURNS POLICY IN www.netduma.com.

12.7 EXCLUSIVE REMEDY

12.7.1 Your sole remedy, and our entire liability, in case of any breach of clause 12.4 and 12.5 is that we will, at our option:

12.7.2 refund the price you paid for the license; or

12.7.3 replace the defective medium that contains the Software; or

12.7.4 provide an alternative remedy as required by English consumer legislation. In the event that English Law cannot apply, then the local consumer law in your jurisdiction will apply. These remedies may not be available in some countries to the extent that we are subject to restrictions under applicable export-control laws and regulations.

12.8 ALTHOUGH NETDUMA SOFTWARE HAS USED REASONABLE EFFORTS TO ENSURE THAT THE SOFTWARE IS ERROR AND MALWARE-FREE, YOU AGREE THAT THE SOFTWARE IS PROVIDED ON AN 'AS IS' BASIS. NETDUMA DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF ERRORS OR MALWARE.

12.9 EXCEPT FOR THE EXPRESS WARRANTIES IN 11 (c) ABOVE, THE PRODUCT IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

12.10 IN NO EVENT SHALL NETDUMA OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND PRODUCT, EVEN IF NETDUMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES .

12.11 NETDUMA SHALL NOT BE LIABLE FOR ANY CLAIM, OR FOR ANY LOSS OR DAMAGE AS A RESULT OF FORCES AND OR CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING WITHOUT LIMITATION ANY ACT OF GOD, WAR, TERRORISM, LABOUR DISPUTE, ACCIDENT, OR OTHER CIRCUMSTANCES AFFECTING THE SUPPLY OF HARDWARE, DISRUPTION TO NETDUMA'S NORMAL MEANS OF DELIVERY OF PRODUCTS OR TELECOMMUNICATIONS DISRUPTION, EVEN IF NETDUMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

12.12 YOU USE THE PRODUCT AND SOFTWARE AT YOUR OWN RISK.

12.13 NETDUMA AND ITS LICENSORS WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY CONSEQUENTIAL LOSS OR DAMAGE RESULTING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, ERRORS OR DEFICIENCIES IN IT, DAMAGE TO PROPERTY, LOST DATA, LOSS OF GOODWILL, COMPUTER OR ANY OTHER DEVICE FAILURE OR MALFUNCTION, LOSS OF BUSINESS, LOSS OF IN FORMATION OR LOST PROFIT, WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS;

12.14 NETDUMA AND ITS LICENSORS WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY COMMERCIAL DAMAGE OR LOSS;

12.15 NETDUMA AND ITS LICENSORS WILL NOT BE HELD LIABLE FOR ANY DAMAGE, INJURY OR LOSS IF CAUSED AS A RESULT OF YOUR NEGLIGENCE, ACCIDENT OR MISUSE, OR DUE TO ERRORS AND/OR DEFECTS IN THE PRODUCT CAUSED BY ADDITIONS OR MODIFICATIONS IN ANY MANNER (NOT BY THE NETDUMA OR ITS LICENSORS) AFTER IT HAS BEEN DELIVERED.

12.16 If you alter the Product in any way without being authorised by Netduma, defects caused by such alteration will not be remedied by Netduma and you will be liable for any damages incurred by Netduma due to your unauthorised alteration.

13. NO WARRANTY

    1. WITHOUT LIMITING THE FOREGOING PROVISIONS, NETDUMA MAKES NO WARRANTIES OR CONDITIONS THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.

    1. NETDUMA DOES NOT WARRANT OR GUARANTEE THAT THE SOFTWARE WILL BE COMPATIBLE WITH OR FUNCTION WITH ALL ONLINE GAMES, NOR DO WE WARRANT OR ACCEPT ANY LIABILITY FOR THE OPERATION OF YOUR PERSONAL EQUIPMENT USED TO ACCESS THE PRODUCT.

    2. SOME LOCALES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.THE AGREEMENT SHALL NOT LIMIT ANY RIGHTS YOU MIGHT HAVE THAT MAY NOT BE EXCLUDED UNDER APPLICABLE LAW NOR SHALL IT EXCLUDE OR LIMIT ANY LIABILITY FOR FRAUD OR DEATH OR PERSONAL INJURY ARISING CAUSED BY NETDUMA'S NEGLIGENCE.

    1. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.

14. LIMITATION OF LIABILITY

14.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL NETDUMA, OR ANY OF OUR THIRD PARTY LICENSORS, SUPPLIERS OR CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY COMMERCIAL DAMAGE OR LOSS, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION:

14.1.2 ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY, ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE INCURRED BY YOU OR ANY USER IN CONNECTION WITH THE SOFTWARE, OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR RESULTS OF THE USE OF NETDUMA'S PRODUCT INCLUDING, WITHOUT LIMITATION;

14.1.3 LOST OR CORRUPT DATA;

14.1.4 COMPUTER FAILURE OR MALFUNCTION;

14.1.5 LOSS OF GOODWILL;

14.1.6 LOSS OF INCOME OR REVENUE;

14.1.7 LOSS OF BUSINESS;

14.1.8 WORK STOPPAGE;

14.1.9 LOSS OF PROFITS OR CONTRACTS;

14.1.10 LOSS OF ANTICIPATED SAVINGS;

14.1.11 LOSS OF DATA;

14.1.12 WASTED MANAGEMENT OR OFFICE TIME;

14.1.13 LOSS OF INTERNET CONNECTION;

14.1.14 AND FOR ANY OTHER LOSS OR DAMAGE OF ANY KIND, HOWEVER ARISING AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF REASONABLY FORESEEABLE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS. If you have any doubts as to whether the above applies to you then you should contact your local advice centre.

14.2 YOU AGREE TO USE THE LICENSED PRODUCT AND WILL CONTINUE TO USE IN ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.YOU AGREE THAT ANY EQUIPMENT YOU MAY OWN AND WHICH YOU CONNECT TO THE PRODUCT MUST MEET WITH ALL RELEVANT LAWS AND REGULATIONS. YOU WILL NOT USE ANY OTHER SOFTWARE ON THE PRODUCT.

14.3 WITHOUT LIMITING THE FOREGOING PROVISIONS, NETDUMA MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.

14.4 SOME LOCALES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS. If you have any doubts as to whether the above applies to you then you should contact your local advice centre.

14.5 THE AGREEMENT SHALL NOT LIMIT ANY NON EXCLUDABLE STATUTORY RIGHTS YOU MIGHT HAVE AS A CONSUMER THAT MAY NOT BE EXCLUDED UNDER APPLICABLE LAW NOR SHALL IT EXCLUDE OR LIMIT ANY LIABILITY FOR FRAUD OR DEATH OR PERSONAL INJURY ARISING CAUSED BY NETDUMA'S NEGLIGENCE.

14.6 The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.

14.7 NETDUMA SHALL ONLY BE LIABLE UNDER THIS AGREEMENT FOR LOSSES WHICH ARE REASONABLY FORESEEABLE AND CAUSED BY THE ITS OWN BREACH OF THIS AGREEMENT OR OUR NEGLIGENCE. IN THE ABSENCE OF ANY NEGLIGENCE OR OTHER BREACH OF DUTY BY US THE USE OF THE LICENSED SOFTWARE IS AT YOUR RISK.

14.8 IN NO EVENT WILL NETDUMA BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT, EVEN IF NETDUMA SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.9 THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

14.10 THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

14.11 NOTHING IN THIS AGREEMENT SHALL AFFECT YOUR STATUTORY RIGHTS. IF YOU HAVE ANY DOUBTS AS TO YOUR STATUTORY RIGHTS THEN YOU SHOULD CONTACT YOUR LOCAL ADVICE CENTRE.

14.12 YOU AGREE THAT YOUR USE OF THE LICENSED PRODUCT IS AND WILL CONTINUE TO BE IN ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

15. ADDITIONAL TERMS APPLICABLE TO USERERS OF THE PRODUCT LOCATED IN AUSTRALIA

    1. LIMITED WARRANTY (AUSTRALIAN CONSUMER ONLY)

    1. If the Product is connected as per the Product manual's instructions, and is operated as instructed, it will substantially conform to the features and functionality set out in the Documentation. However, the Software may contain undiscovered bugs and errors. Bug fixes and updates will be provided from time to time as appropriate at Netduma's discretion.

    1. The Product is delivered to you with guarantees that cannot be excluded under the Australian Consumer Law. The warranties and remedies in this section apply to purchases made in Australia and are exclusive and in lieu of all others, oral, written, express or implied. Any and all other warranties are expressly excluded.

    1. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.

    1. You are also entitled to have the Product repaired or replaced if the Product fails to be of acceptable quality and the failure does not amount to a major failure. If Netduma, by its sole determination, is unable to replace the defective Product, it will refund the depreciated purchase price of the Product.

    1. YOU ARE HEREBY NOTIFIED OF CLAUSE 9.9 ABOVE WHICH STATES THAT Netduma Limited and any third party suppliers retain any and all the intellectual property rights in the Hardware, and you acknowledge that the Hardware is sold to you solely as the medium for the delivery and operation of the licensed Software and, unless otherwise agreed by the parties in writing, Netduma at its option may provide Hardware that is either new or refurbished or of a different manufacturer. In the event that the Product has to be replaced, Netduma will replace the Hardware with a new or refurbished router or a router of a different manufacturer. In the event that Netduma has to repair the Hardware, Netduma will at its option repair with new or refurbished spare parts. Netduma will ensure as far as practicably possible that the replacement Hardware will be of the same or greater capability.

16. EXCLUSIONS (AUSTRALIAN CONSUMER ONLY)

16.1 The warranty provided under this section does not cover defects or problems that arise due to you causing the Product to become of unacceptable quality, such as failure to take reasonable care or damage caused by abnormal use. Further, you assume all responsibilities for choosing, installing and using the Product.

    1. If you alter the Product in any way without being authorised by Netduma, defects caused by such alteration will not be remedied by Netduma and you will be liable for any damages incurred by Netduma due to your unauthorised alteration.

    1. The warranty under this section will not apply if the Product has been used or maintained in a manner that does not conform to the Product manual and/or electronic instructions, or has been modified in any way, or has had any serial number removed or defaced.

    1. The software may contain open source materials. To the extent permissible at law Netduma makes no warranties, and shall have no liability, direct or indirect, whatsoever with respect to open source materials contained in the software. Please take note of clause 18 below regarding third party software.

    1. Netduma shall only be liable under Australian Consumer Law for losses which are reasonably foreseeable and caused by our breach of guarantees or by our negligence. In the absence of any negligence or other breach of duty by us the use of the licensed Software and Product is at your risk.

17. MAKING A CLAIM (AUSTRALIAN CONSUMER ONLY)

17.1 If the Product is defective, you must inform Netduma within 14 days of discovering the defect at our Customer Service email address [email protected] and ask for a return merchandise authorisation (RMA) code. Netduma will send you an email with details on how to send the Product and your allocated RMA code.

    1. You will send the Product to Netduma with all related media manuals, serial number and our logo and a copy of your receipt which indicates the date of purchase. Netduma will notify you of receipt within 14 days of receiving the Product.

    1. Upon delivery to Netduma, we will organise for the Product to be assessed to determine (at our discretion) if the alleged defect is covered by this consumer guarantee, and will be given the outcome by telephone, email or letter.

    1. Any and all defects covered by this consumer guarantee will be scheduled for repair or replacement (at our option) and undertaken within a reasonable period of time, depending upon the availability of replacement parts, components and appropriate persons to undertake the work.

    1. Netduma shall notify you in writing if we intend to replace the returned Hardware with a refurbished Hardware or with a different manufacturer's Hardware or if it intends to repair the defective Hardware with refurbished parts.

    1. As an Australia customer, you may call +44 1903 529553 with questions regarding our warranty. To enable us to honour any claims made under this warranty, the Product must be sent, at your expense, to the following address: Netduma Ltd, 68 Hurston Close BN140AX, Worthing, UK.

    1. Any replacement medium will be warranted for the remainder of the original warranty period.

18. USE OF THE LICENSED PRODUCT

    1. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, NETDUMA AND ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS AND THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE MAKE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE PRODUCT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE.

    1. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS. If you have any doubts as to whether the above applies to you then you should contact your local advice centre.

    1. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED. WHERE APPLICABLE WE RECOMMEND THAT YOU BACK-UP ALL DATA AND TAKE APPROPRIATE MATTERS TO PROTECT SUCH DATA.

19. THIRD PARTY SOFTWARE

19.1 The Product supplied to you by Netduma operates or interfaces with software or other technology which is not proprietary to Netduma and is licensed by third parties ("Third Party Licensors"), but which we have the necessary rights to licence to you ("Third Party Software"). You agree that:-

19.1.1 You will use such Third Party Software in accordance with this Agreement, no Third Party Licensor makes any warranties, conditions, undertakings or representations of any kind either express or implied, to you concerning such Third Party Software.

      1. No Third Party Licensor will have any obligation or liability to you as a result of this Agreement or your use of such Third Party Software.

      2. Such Third Party Software may be licensed under licence terms which grant you additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional licence rights and restrictions are described or linked to within the applicable Documentation and at www.netduma.com/legal/opensource.html.

      3. Netduma will defend, at its expense, any action brought against you to the extent that it is based upon a claim that any Software furnished infringes a patent, copyright, trade secret or other intellectual property right that is recognized in your jurisdiction and will pay all costs and damages finally awarded against you by a court of competent jurisdiction, provided that Netduma is given written notice within ten (10) days of such claim being made, and is given information, reasonable assistance, and sole authority to defend or settle the claim.

      4. Netduma and its licensor, at its option, will obtain for you the right to continue using, or will replace or modify the Software involved so it becomes non-infringing; or, if such remedies are not reasonably available, Netduma will grant you a refund for the Product based on a straight line amortisation over 36 months from initial delivery, and accept the return of the Product and terminate the license immediately.

      5. Netduma may at its option give you a written request to ceases immediately from using the Product on any such claim being made.

      6. Netduma will have no obligation under this Section if the alleged infringement or violation is based upon the use of the Software in combination with other software not provided by Netduma. This Section represents the sole and exclusive liability of Netduma for infringement of the intellectual property rights of a third party under this Agreement.

20. INDEMNITY (LIABILITY TO US IN CURCUMSTANCES SET OUT BELOW)

    1. You must adhere to the terms of this Agreement and not infringe the rights of anyone else or do anything in breach of this Agreement which may give a person a claim against Netduma.

    1. If you breach the Agreement, and Netduma is challenged, threatened or sued, Netduma may hold you responsible for any damages and or loss suffered as a consequence thereof. You shall be liable for any reasonably foreseeable losses that arise from your use of the Product in breach of this Agreement.

    1. You further agree that Netduma would be irreparably damaged if the terms of the Agreement were not specifically enforced, and therefore you agree that Netduma shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of the Agreement, in addition to such other remedies as Netduma may otherwise have available to it under applicable laws.

21. OPEN SOURCE SOFTWARE

21.1 Certain software libraries and other third party software included in the Software are "free" or "open source" and are subject to separate license terms ("Open Source Software"). Such open source software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. CERTAIN Open Source Software is made available by Netduma Software and Third Party Licensees on their respective websites details posted at www.netduma.com/legal/opensource.html.

22. U.S. GOVERNMENT RESTRICTED RIGHTS

22.1 In the event of acquisition of the Software by or for any unit or agency or other part of the United States Government, the Software and the Documentation shall be classified as commercial computer Software with 'RESTRICTED RIGHTS' applicable to private and public licenses alike, under FAR 12.212-1(a) (1995) or DFARS 227.7202-1(a) DFARS 227.7202- 3(a)(1995). The computer commercial Software and commercial Software Documentation, and their use, duplication, release, modification, disclosure, reproduction, performance or display without limiting the foregoing shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The contractor/manufacturer is Netduma Limited of 145-157 St John Street, London EC1V 4PW.

23. INJUNCTIVE RELIEF

    1. You acknowledge that because of the confidential and proprietary nature of the Product, neither termination of this Agreement nor an action at law would be an adequate remedy for a breach by you of this Agreement.

    1. You agree that, in the event of such breach, Netduma and its licensors will be irreparably harmed and, in addition to all other remedies which Netduma or its licensors may have, Netduma and its licensors shall be entitled to relief in equity, including a temporary restraining order, temporary or preliminary injunction, and permanent mandatory or prohibitory injunction to restrain the continuation of any such breach or to compel compliance with the provisions of this Agreement without the necessity of proof of actual damage.

24. USE OF YOUR INFORMATION

    1. Netduma may use information you provide for the following purposes:

    1. Netduma confirm that we will process personal information in accordance with the provisions of the Data Protection Act 1998.

    1. To pass your information to other companies within our group of companies when applicable;

    1. To use information in accordance with our privacy policy from time to time as set out at www.netduma.com/legal/privacy.php.

    1. If you do not wish Netduma to use your information please contact Netduma at any time by using the contact details at the end of this Agreement.

25. SEVERABILITY

25.1 In the event that any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will not affect the legality, validity or enforceability of the remaining portions of the Agreement. The remainder of this Agreement shall continue in full force and effect.

26. JURISDICTION

    1. To the maximum extent permitted by the local law applicable in the country in which you obtain or use the Product, and the Agreement are subject to the laws of England and Wales. Both parties (Netduma and you) agree to submit to non exclusive jurisdiction of the English courts. You consent to this jurisdiction and will not raise jurisdiction simpliciter or forum non conveniens. Both parties will try to solve any disagreements quickly and efficiently. If you are not happy with the way we deal with any disagreement and decide to take court proceedings, you must do so within the English courts.

    1. In the event that English Law cannot apply in the country you obtained or used the Product, local law will apply. The Product is intended for use and may only be used in countries where all such use is lawful.

    1. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

    1. If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.

    1. Our failure to enforce any particular term of this Agreement shall not be deemed a waiver of any of our rights under it.

    1. You agree that we may, at our sole discretion, assign, transfer, or subcontract any of our r ights or obligations under this Agreement to any of our subsidiaries and other group companies, resellers, distributors or dealers.

    1. A person who is not a party to this Agreement has no right to enforce any term of this Agreement under applicable legislation, and the parties to this Agreement do not intend that any third party rights are created by this Agreement.

    1. Any notices required to be given in writing to Netduma or any questions concerning this Agreement should be addressed to Netduma Limited, 145-157 St John Street, London EC1V 4PW United Kingdom .

27. EXPORT CONTROL REQUIREMENTS

    1. The Product may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which there is an embargo in force. You agree not to use, disclose and/or transport the Product in accordance with any applicable export control laws to any destination subject to restrictive sanctions measures or trade embargoes implemented at a national, regional or international level without the appropriate authorisation.

    1. You shall be solely responsible for fulfilling any applicable governmental requirements in connection with the use, disclosure and/or transport of the Product.

    1. You agree to indemnify and hold us harmless from and against any claim, loss, liability or damage suffered or incurred by us resulting from or related to your breach of this clause.

28. EXPORT RULES

28.1 You acknowledge that the Software and the Documentation contain software and technical data that are subject to the export control laws of the United States or the United Kingdom. In addition, you represent and warrant that you are not a citizen of or located within an embargoed or otherwise restricted nation and that you are not otherwise prohibited under the export control laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

29. PAYMENTS, TAXES

    1. You agree that you will pay for all Products from Netduma's web Shop and that we may charge your payment method for any Products purchased and for any additional amounts (including any taxes) that may be accrued by or in connection with your purchase. For details of how purchases are billed please visit www.netduma.com.

    2. If the Product becomes unavailable following a transaction but prior to delivery, your sole remedy is limited to a refund of the price paid for the unavailable product. If technical problems prevent or unreasonably delay delivery of your product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by Netduma.

30. HIGH RISK ACTIVITIES:

30.1 The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). Netduma expressly disclaims any express or implied warranty of fitness for High Risk Activities.

31. ENTIRE AGREEMENT

    1. This Agreement constitutes the complete and exclusive agreement between Netduma and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NETDUMA OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.

    1. This agreement can only be modified if agreed upon by Netduma and you in writting.

32. MISCELLANEOUS

32.1 Netduma and its licensor reserves the right any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or condition at any time upon providing reasonable notice, including without limitation by posting revised terms on our website at www.netduma.com. Failure to receive notification of a change does not make those changes invalid. You are entitled to end this Agreement at any time following such variation of the terms and conditions if you do not wish to be bound by them. If you choose to do this the Agreement is terminated.

33. SOFTWARE TRANSFERS

33.1 You shall not rent lease or sublease the Software. You may permanently transfer all your rights under this Agreement provided you retain no copies and you transfer all the Software (including all component parts, the media and printed materials, any updates, upgrades, and changes) and that the transferee agrees to be bound by the terms of this Agreement in respect of the intellectual property and confidential information of Netduma. Please note intellectual property and confidential information of Netduma and its Licensor shall survive any expiry or termination of this Agreement. If the Software is an update or upgrade, any transfer must include all prior versions of the Software and accompanying Agreement if applicable.

34. TERMINATION

    1. This Agreement shall terminate automatically if you fail to comply with the limitations described in this Agreement. You may terminate these Terms and Conditions at any time by notifying us in writing. You shall not use the Product. Netduma, at its discretion may retrieve the Product and return the Hardware to you with the Software removed. Your rights automatically and immediately terminate without notice from Netduma if you fail to comply with any provision of these Terms and Conditions. No notice shall be required to effectuate such termination. Upon termination, you must immediately stop using the Software.

    1. The provisions of Sections 1,2,4,5, 9,11,12,13,14,18,22,23,24,25,26,27,31,34 and 35 shall survive any termination or expiration of these Terms and Conditions.

    1. For the avoidance of doubt, your obligations under this Agreement in respect of intellectual property and confidential information of Netduma and its licensor shall survive any termination of this Agreement.

    1. Notwithstanding termination of this Agreement, Netduma shall be free to use , for its own business purposes, any ideas, suggestions, concepts, know how or techniques contained in information received from you that directly relates to Netduma's Software or business. For example Netduma and its licensor shall be free to incorporate any suggested changes or modifications to the Software into software licensed to other customers.

    1. You grant us a perpetual, non exclusive, royalty-free, worldwide, irrevocable license to use, copy, distribute, make derivative works from, display, perform, or incorporate your Feedback into any Netduma Software, and otherwise commercialise the Feedback at our sole discretion, without compensation to you and without your approval.

35. CONFIDENTIALITY

35.1 The Software includes our confidential information that is secret and valuable to us and our licensors. You are not entitled to use or disclose that confidential information other than strictly in accordance with the terms of this Agreement. You shall keep the confidential information in confidence and shall not publish, disclose, distribute, transmit, post or otherwise make available, directly or indirectly, any Confidential Information to any third party except as otherwise expressly set forth herein.

36. GENERAL

36.1 Netduma intends to rely upon the written terms set out in this Agreement. If you require any changes to these terms please contact us and request for these to be put in writing.

37. RESERVATION OF RIGHTS

37.1 All rights not expressly granted in this Agreement are reserved by Netduma.

38. CUSTOMER CONTACT

38.1 If you have any questions concerning these terms and conditions, or if you would like to contact Netduma for any other reason, please find contact details at our website www.netduma.com.

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