MobiGuard End-User Licence Agreement

1. Parties to this Agreement

This Licence Agreement (Agreement) is entered into by:

You, the individual purchasing the Service (as defined below) (You); and

MobiData Group Pty Limited a company incorporated under the laws of Australia (ABN 43 112 159 832) (We or Us).

In this Agreement "our" refers to things belonging to We or Us and "your" refers to things belonging to You.

2. This Agreement is legally binding

This Agreement sets out the legally binding terms and conditions under which We make the Service (as defined below) available to You.

If You do not accept the terms of this Agreement You must click the "Do not accept" button presented to You at the time of installation whereupon the installation of the software necessary for You to obtain the Service will be terminated.

3. Our Service

We will use reasonable commercial endeavours to make the services described in this clause (Services) available for your use during the Term subject to the terms and conditions of this Agreement.

The Services comprise:

1. online back up of your phone contacts and other selected mobile phone content, selected applications and/or data (Content),
2. access, management and automatic back up of content controlled using our website at http://www.mobipod.com.au (Website),
3. industry standard secure communication and storage;
4. other services that may have been purchased by You from Us,

subject to the specifications published on the Website or made known to you at the time of your purchase, the limitations of our software, the host network and these terms and conditions.

4. Duration

Subject to termination as provided in this Agreement, the term of this Agreement ( Term ) is the period the Service offered by Us and purchased by You or on your behalf is supplied by Us to You.

5. The Licence granted to You.

We grant You a non-exclusive, personal licence for the Term to load one copy of our software application (Software) on your mobile device and use it to access and make use of the Service:

1. for the purpose of making back up copies of your personal data and information;
2. for the purpose of making backup copies of computer programs and other digital content in accordance with the license or the owner or as permitted by law;

It is a condition of your license to use the service that You do not access or make use of the Service:

1. for the purpose uploading or distributing any virus, Trojan, spyware or any other malicious code; or
2. for the purpose of copying or communicating content in infringement of copyright.

6. Equipment and Access

The Service requires a compatible mobile device and an active connection to the Internet. It is your responsibility to ensure that your mobile device is compatible and has the necessary connectivity.

7. You must respect copyright

When You upload, store, retrieve, transmit or Synchronise Content to, within or from our Website and/or servers, You represent and warrant to Us that:

1. You are the rightful owner of the Content that You are uploading, storing, retrieving, transmitting or synchronizing;
2. You have obtained all rights necessary to upload the Content to our Website and/or servers, Synchronise the Content with the devices You have identified during your registration for the Service and grant Us the rights to Store the content on your behalf; and
3. neither the Content nor the use of the Service in relation to the Content or otherwise, infringes or violates the rights of third parties or any applicable laws.

8. We may disconnect You if You are subject to a complaint regarding copyright

We reserve the right to disclose information regarding your identity and/or copyright material held by You online in response to a legal demand. We may remove allegedly infringing Content from our system, and/or disable your access or cancel your account in response to an allegation that You are using our Services to infringe copyright. You will not have any claim for compensation or any other right against Us (in contract, negligence or any other of law) as a result of any steps We take in response to a claim relating to copyright infringement whether or not the allegations giving rise to our action are correct.

9. Our Restrictions on Use of Service

You acknowledge that the Service is for personal back up of personal Content only.

We may establish limits on your use of the Service, including without limitation by restricting specifically or by type of Content or limiting the size or frequency with which Content may be backed up with the Service.

You acknowledge that we may restrict or limit your ability to upload certain Content onto our servers and Website (including by throttling down the speed of the Service) or remove part or all of your Content from our servers or website if:

1. reasonably necessary to enforce reasonable limits on use; or
2. in our reasonable opinion, relevant Content is likely to infringe, or has infringed, a third party's copyright, moral rights, intellectual property rights or any other rights.

You also acknowledge if Content is removed by Us it may be deleted from our Servers and may not be recoverable by You or any third party.

10. Restriction on use of the Software

Copyright law permits some duplication of software for limited purposes such to study the code or build interoperable programs. Except as expressly permitted by this Agreement an applicable copyright law You must not:

1. reproduce the Software or make any adaptation of the Software or any other derivative work from the Software; or
2. de-compile, disassemble or otherwise reverse engineer the Software.

11. Termination and the effect of Termination

We may suspend or terminate your Service immediately and without liability to You:

1. if necessary to protect our system,
2. in response to an allegation that You have been using our Service to infringe copyright or distribute copyright infringing material;
3. should You fail to pay for the Service You are receiving on or by the due date;
4. if We give You written notice of an apparent breach of a term of this Agreement and do not rectify the breach within 10 days of receiving the notice.

You may terminate the Service and close your account at any time by written request. Upon termination of your account, You will remain liable for all fees incurred or accrued by You.

Upon expiry or termination of this Agreement for any reason:

1. You will not be entitled to a refund of any prepayment or other amount;
2. You will no longer have access to any stored Content;
3. After 3 months, if you do not renew your account, we may delete any Content stored by You without liability.

12. Fees

You agree to pay the fees for the Service selected by You on the terms and conditions published by Us in relation to that Service on the date You make the selection. We may change the pricing, Service and terms and conditions offered to new or renewing customers from time to time at our discretion.

13. Personal Information

We will handle personal information related to You in accordance with our privacy policy. A copy of our privacy policy is available at here or by contacting our privacy officer on privacy@mobidata-group.com. By providing your personal information to Us You agree that We may handle it in accordance with our privacy policy, including without limitation, transmitting and storing information outside your country of residence.

14. Electronic Communication

You hereby consent to receive information, support and marketing information from Us via email, SMS, instant messaging and other forms of electronic communication. If permitted by law, during the term of this Agreement you waive any requirement that our messages offer you the right to unsubscribe from messages sent by Us.

15. Compliance with the law

You represent and warrant to Us that You will comply with all applicable laws, statutes, ordinances and regulations regarding your use of our Services. You are responsible for compliance with local laws, keeping in mind that use of the Service may not be legal by certain persons in certain countries.

16. You indemnify Us from loss caused by your action

You agree to defend, indemnify and hold harmless Us, our officers, directors, employees, contractors and agents, from and against any and all claims, actions, demands, losses, liabilities, costs and expenses, including without limitation, reasonable legal and accounting fees arising out of or resulting in whole or in part from your use of the Service, the Content You store, retrieve, transmit or Synchronise (as the case may be) within or to your account or in volitation of this Agreement/where such storage, retrieval, transmission or synchronization is in breach of the terms and conditions set out in this Agreement or any other terms and conditions agreed to by You when You purchased the Service.

17. Exclusions of Warranty

You acknowledge and agree that:

1. the nature of computer software is such that the operation of the Software may not be uninterrupted or error free;
2. the availability of the Service is subject to many factors outside our control, including the availability of connection services to and within the Internet, and to equipment that, by its very nature, is not fault-tolerant; and
3. You have relied on your own judgment in determining whether the Software is suitable for the purposes for which You intend to use other Software.

To the full extent permitted by law, We exclude all warranties or conditions (whether implied by statute, general law, custom or otherwise) or representations including, but not limited to, warranties of merchantability or fitness for a particular purpose, and, in particular, exclude any warranty, condition or representation that the operation of the Software will be uninterrupted or error free.

No oral advice or written information given by Us, our employees, contractors, agents or representatives will create a warranty, nor may You rely on such information or advice.

18. Exclusion of Liability

To the full extent permitted by law, We exclude all liability to You in respect of all claims under or in connection with provision of the Service, the Software, this Agreement or its subject matter, (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) for any loss of profit, revenue, data, contracts, goodwill or business, any interruption to your business, any failure to realise savings or any consequential, indirect, special, punitive or incidental damages. This exclusion will apply even if We have been advised of the possibility of such damages.

Notwithstanding anything else in this clause, and to the full extent permitted by law, We expressly disclaim any liability to You or any other party for any Content stored using the Service.

Protected rights

In some jurisdictions the law implies warranties or conditions or may impose obligations which cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to those statutory provisions. To the full extent permitted by law we limit our liability in respect of any claim in respect of any breach of such provisions to:

1. in the case of goods, at our option:
   1. the replacement of the goods or the supply of equivalent goods;
   2. the repair of such goods;
   3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
   4. the payment of having the goods repaired, and
2. in the case of services, at our option:
   1. the supply of the services again; or
   2. the payment of the cost of having the services supplied again.

19. General Provisions

Waiver

Our failure to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver.

Modification of Agreement

We may amend this Agreement at any time and at our sole discretion. If We make any amendments to this Agreement, We will post a notice on our Website notifying You of any amendments to this Agreement. If You do not agree to any amendments, You may terminate this Agreement in accordance with clause 11 of this Agreement.

Assignment

We may assign this Agreement at any time. If You do not agree to such assignment, You may terminate this Agreement in accordance with clause 11 of this Agreement.

You must not assign, create an interest in or deal in any other way with any of your rights under this Agreement without our prior written consent and any such attempt shall be void.

Invalid or unenforceable provisions

If a provision of this Agreement is invalid or unenforceable in a jurisdiction:

1. it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
2. that fact does not affect the validity or enforceability of:
   
   1. that provision in another jurisdiction; or
   2. the remaining provisions.

Governing Law

This Agreement is governed by the laws of Sate in which You normally reside (the " Governing State").

Each party irrevocably and unconditionally:

1. submits to the non-exclusive jurisdiction of the courts of the Governing State; and
2. waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.

Entire Agreement

This Agreement and any documents referred to in this Agreement or executed in connection with this Agreement is the entire agreement of the parties about the subject matter of this Agreement and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other communications. You acknowledge that You have not entered into this Agreement relying on any representations made by or on behalf of MobiData, other than those expressly made in this Agreement.