ThreatDefence: END USER LICENCE AGREEMENT

IMPORTANT USER NOTICE – READ THIS CAREFULLY BEFORE INSTALLING OR USING THREATDEFENCE SOFTWARE.
BY SELECTING THE “I AGREE” BUTTON, DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS ON YOUR OWN BEHALF AND ON BEHALF OF YOUR ORGANISATION.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMEMT, CLICK THE “I DO NOT AGREE” BUTTON, AND DO NOT INSTALL OR USE THE SOFTWARE IN ANY WAY AND IMMEDIATELY DELETE OR DISPOSE OF THE SOFTWARE.

End User Licence Agreement

  1. Parties: This End User Licence Agreement together with any completed Order Form (“EULA”) is a legal agreement between:
    ThreatDefence Pty Ltd( ACN 615 022 074) trading as ThreatDefence.

The person or entity named in the Order Form who acquires the Software or the person or entity which has installed the Software (“Licensee”).

  1. Acceptance by Licensee: Licensee acknowledges and agrees that it has acquired a license to use the Software on the condition that the installation and use of the Software is subject to the terms and conditions of this EULA. If the Software is installed or downloaded by an administrator of Licensee, the administrator is deemed to accept the terms and conditions of this EULA (for and on behalf of the Licensee and each User) by clicking the “I ACCEPT” button displayed on the relevant server. Acceptance of any modifications to the terms of this EULA made by ThreatDefence from time to time will be a pre-condition for installation and use of any Updates. For the avoidance of doubt no terms or conditions of Licensee, including any terms or conditions printed on or referred to in Licensee’s offer to purchase or order will be binding on ThreatDefence or have any legal effect unless expressly agreed to in writing by ThreatDefence.

  1. Definitions: In this EULA, capitalised terms have the following meanings:

Affiliate(s)means an entity that directly or indirectly (including through intermediaries), is controlled by, or is under common control with, or controls, a party where the control is exercised by at least a 50% ownership interest through stock ownership or voting rights.Commencement Date means the date that the Software is delivered to Licensee under clause 8.

Documentation means any media, printed materials, electronic documentation and technical, operating and user manuals made available by ThreatDefence in relation to the Software, including such materials made available on the ThreatDefence Website.

Fees means the licence fees for the Software and, where applicable, the annual maintenance fees for Support and Maintenance payable by Licensee under the Licence and Maintenance Package; or the subscription fees payable by Licensee under the Subscription Package, as set forth in the then current price list of ThreatDefence from time to time.

Number of Users means the number of Users indicated in the Order Form.

Licence and Maintenance Package means the package offering by ThreatDefence for the applicable Fee consisting of a perpetual licence to install and use the Software in accordance with clause 4 with the option of obtaining Support and Maintenance on a yearly basis, as ordered by Licensee in the Order Form.

Order Form means an online, electronic or hardcopy communication by or on behalf of Licensee to ThreatDefence, which contains details of Licensee and the relevant order, including the name of Licensee, the Software (including whether under the Licence and Maintenance Package or the Subscription Package) and the Number of Users, and for the purpose of downloading, ordering or confirming orders of the Software. Order Forms include the information webpage completed by a Licensee on the ThreatDefence Website, the Customer Order Form (as provided by ThreatDefence), or a purchase order issued by Licensee or paypal information webpage completed by or on behalf of a Licensee, to the extent such purchase order or paypal information webpage contains the above information, but do not include any terms or conditions printed on or referred to in such purchase order or paypal information webpage.

Software means the software as indicated in the Order Form, all Updates and the Documentation.

Support and Maintenance means the support and maintenance services provided by ThreatDefence to Licensee relating to installation and use of the Software in accordance with clauses 17 to 20.

Subscription Package means the package offering by ThreatDefence for the applicable Fee consisting of a licence to install and use the Software in accordance with clause 4 and the provision of Support and Maintenance on a subscription basis, as selected by Licensee in the Order Form.

Third Party Software means software which is created or developed by a party other than ThreatDefence and includes open source software.

Updates means any patches and modifications, enhancements, improvements and revisions of the Software, including new releases of Software, made available by ThreatDefence at its discretion from time to time.

User means each person (including a person under the authority or control of an Affiliate of Licensee) who is using a network device and assigned an unique IP address inside the Licensee environment that ThreatDefence monitors.

Licence

  1. Licence: Upon acceptance of this EULA in relation to the Software and payment of the applicable Fees by Licensee, ThreatDefence grants to:
    (a) a Licensee under a Licence and Maintenance Package a perpetual, non-exclusive, non-transferable, non-sublicensable licence to install and use the Software subject to the terms and conditions of this EULA; or
    (b) a Licensee under a Subscription Package a non-exclusive, non-transferable, non-sublicensable licence to install and use the Software subject to the terms and conditions of this EULA for the term of the subscription,
    from the Commencement Date.
  2. Number of Users: The licence granted under clause 4 is limited to the Number of Users. The Licensee must ensure that the Software is not installed for use by more than the Number of Users at any one time. Licensee must, on request by ThreatDefence, report to ThreatDefence the number of Users every 6 months (from the Commencement Date) during the term by completing and submitting to ThreatDefence a completed User Report Form.
  3. Copies: Licensee may only make a copy of the Software if it is solely for backup purposes or required for the purpose of updating or upgrading hardware, system maintenance, ensuring the continued availability of the Software to authorized Users or is otherwise expressly permitted by law. Licensee must not otherwise copy the Software to any storage device or other server or remove or relocate the server for which the Software is licensed under this EULA except as expressly permitted by this EULA or by law, unless with ThreatDefence’ prior written consent.
  4. Third Party Software: The Software may incorporate or access Third Party Software and services. Licensee agrees to and must ensure all Users comply with all applicable terms and conditions for the Third Party Software at all times. To the extent permitted by law, all Third Party Software provided with or contained in the Software is provided “AS IS” without warranty of any kind. ThreatDefence will have no liability or responsibility for the operation or performance of the Third Party Software and will not be liable for any damages, costs, or expenses, direct or indirect, arising out of the performance or failure to perform of the Third Party Software.

Installation

  1. Delivery and Risk: The Software will be made available to Licensee for download from the ThreatDefence Website or delivered.
  2. System Requirements: Licensee acknowledges and agrees that the Software may only be installed and used on an adequate equipment, including a server which meets or exceeds the minimum system requirements identified and notified by ThreatDefence to Licensee from time to time. Licensee acknowledges and agrees that it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third party software required for use of the Software. All computer functionality, operating system, network services, hardware maintenance and data backup are the responsibility of the Licensee. THREATDEFENCE IS NOT RESPONSIBLE FOR DATA LOSS ARISING AS A RESULT OF USE OF THE SOFTWARE OR INTERACTION OF THE SOFTWARE WITH ANY THIRD PARTY SOFTWARE.
  3. Evaluation Version: ThreatDefence may provide Licensee with an evaluation version of the Software solely for Licensee to evaluate the Software during a specified evaluation period, currently 15 days. Extended access to the evaluation version of the Software beyond the evaluation period will be enabled at the discretion of ThreatDefence. Any use of the Software after the expiry of the evaluation period (including, where applicable, any extensions) is not permitted unless the applicable Fees are paid by Licensee. The terms and conditions of this EULA apply in full during the evaluation period except that:
    (a) no Fees are payable;
    (b) the licence granted to Licensee with respect to the evaluation version of the Software is non-exclusive, non-transferable, non-sublicensable for the specified evaluation period only and limited to the purpose as stated in this clause 10; and
    (c) unless otherwise agreed by ThreatDefence in writing, limited support and maintenance services will be provided for non-production implementation only during the evaluation period.
  4. Protection and Security: The Licensee agrees to use reasonable endeavours to safeguard the Software and any licence key(s) to ensure that no unauthorised person has access to them and that there is no unauthorised copying or distribution of the Software or the licence key(s).
  5. Updates: ThreatDefence may direct Users to the ThreatDefence Website to enable Users to download Updates. Licensee must install all Updates to the Software to a minimum level of 3 minor point releases from current Software release to retain access to Support and Maintenance unless agreed in writing by ThreatDefence. Updates are only available to Licensee which has elected for, and has paid all applicable fees to retain the Support and Maintenance option under the Licence and Maintenance Package or Licensee under the Subscription Package.
  6. EULA applies to Updates: Upon installation of an Update, the license granted under this EULA will apply to such Update (to the extent varied by any additional terms and conditions made available to Licensee by ThreatDefence at www.ThreatDefence.com/eula) and all rights in respect of the previous version of the Software will lapse and no further use of the previous version of the Software is permitted.

Permitted Use

  1. Monitoring: Licensee agrees that it will comply and procure each User to comply with the terms and conditions of this EULA.
  2. Restrictions on Use: Licensee agrees:
    (a) not to use the Software or any part thereof to provide outsourcing or computer bureau services;
    (b) not to modify, translate, adapt or distribute the Software or communicate the Software to the public;
    (c) not to rent, lease, resell, sublicense or lend the Software;
    (d) not to reverse engineer, reverse assemble, disassemble, reverse compile, decompile or imitate the Software or otherwise attempt to access, copy, display or extract the source code of the Software (except to the extent expressly permitted by law, in which case you must first notify ThreatDefence in writing) or create derivative works based on the Software;
    (e) not to circumvent technological measures intended by ThreatDefence to control access to the Software;
    (f) not to remove any copyright or other proprietary protection legends or notices from the Software;
    (g) to protect the confidential and proprietary information contained therein from being disclosed to any unauthorised person;
    (h) not to combine the Software with other software (except to the extent expressly permitted by law or the Documentation);
    (i) not to claim ownership of the Software either verbally or in writing;
    (j) to acknowledge to third parties that ownership of the Software vests in ThreatDefence; and
    (k) not to use or copy the Software except as expressly provided in this EULA.

Support Services

  1. Online Knowledge Base: ThreatDefence may at its discretion make available to Licensee general information in relation to the installation and use of the Software in the form of online knowledge base on the ThreatDefence Website or forums of social media networks selected by ThreatDefence from time to time
  2. Support and Maintenance: Subject to Licensee paying all applicable Fees, ThreatDefence will provide Support and Maintenance to Licensee relating to installation and use of the Software via a Support Ticket system available between 9.00 am to 5.00 pm EST excluding Saturdays, Sundays and any public holidays in New South Wales, Australia, under which Licensee may submit a Support Ticket on the ThreatDefence Website. ThreatDefence will respond to the Support Ticket by e-mail, web conference or telephone (as it considers appropriate). Support and Maintenance via the Support Ticket system are not available outside the nominated hours unless agreed in writing, which may be subject to payment of additional fees. For avoidance of doubt, ThreatDefence is under no obligation to provide Support and Maintenance to Licensee which has not elected for the Support and Maintenance option under the Licence and Maintenance Package.
  3. Cooperation: Licensee agrees, on request, to provide promptly to ThreatDefence any information available to assist ThreatDefence in identifying a technical error (such as any error diagnostic messages) when providing support and maintenance services.
  4. Exclusions: ThreatDefence’ Support and Maintenance do not include the rectification of errors, defects or problems caused or contributed to by:
    (a) default or negligence of Licensee;
    (b) improper or unauthorised use of the Software;
    (c) any modifications or alterations of the Software other than as approved by ThreatDefence or by any person other than ThreatDefence;
    (d) causes external to the Software such as, but not limited to, power failure, electric power surges or a force majeure event;
    (e) any failure by Licensee to download and install Updates made available on the ThreatDefence Website;
    (f) any failure by Licensee to comply with the Documentation;
    (g) any failure by Licensee to comply with any reasonable guidelines or instructions provided by ThreatDefence;
    (h) any fault, defect, omission or error in any data, software or equipment not supplied by ThreatDefence;
    (i) any failure arising out of any network (including the internet) or communications; or
    (j) use of the Software with any software or equipment not approved or recommended by ThreatDefence, or in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.
    ThreatDefence reserves the right to charge Licensee additional fees (at its then current rates) for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
  5. Support Term: ThreatDefence’ obligations to provide Support and Maintenance to Licensee under this EULA is conditional upon Licensee paying all applicable Fees and will cease upon the earlier of termination of this EULA in accordance with its terms or:
    (a) in relation to a Licensee under the Licence and Maintenance Package, upon expiry of one year from the Commencement Date; or
    (b) in relation to a Licensee under a Subscription Package, upon expiry of the relevant subscription period,
    unless the Support and Maintenance is renewed under the Licence and Maintenance Package or the subscription is renewed under the Subscription Package and all applicable Fees are paid by Licensee.
  6. Training: ThreatDefence does not provide training for the use of the Software unless requested or agreed by Licensee or otherwise provided by this EULA and subject to Licensee entering into an agreement with ThreatDefence for the provision of such training services.

Fees and Payment

  1. Fees: All Fees paid by Licensee to ThreatDefence under this EULA are non-refundable. Licensee under the Subscription Package agrees and acknowledges that it is liable for payment of subscription fees for the minimum period as detailed on the Order Form.
  2. Taxes: Any applicable licence or other fees payable by Licensee under this EULA are (unless otherwise expressly stated by ThreatDefence) exclusive of any applicable goods or services or value added taxes or other taxes of similar nature (“Taxes”). Upon ThreatDefence’ request, Licensee must pay or reimburse to ThreatDefence any amounts payable on account of Taxes levied upon or arising out of the supply of the Software or any services by ThreatDefence to Licensee.

Intellectual Property

  1. Licensee Contents: As between ThreatDefence and Licensee, Licensee owns all content it uploads using the Software and all intellectual property rights subsisting in the content. ThreatDefence will not access, view or listen to the content, except as reasonably necessary to exercise its rights or comply with its obligations under this EULA.
  2. Ownership: Licensee acknowledges and agrees that all intellectual property in and to the Software (including copyright in all drawings, designs, the Documentation and specifications relating to the Software, algorithms, scientific or technical data and models forming the part of the Software) and any other information or material (including confidential information) relating to the Software remains the property of ThreatDefence, and that the Licensee acquires no right, title or interest in or to that intellectual property by virtue of this EULA other than as expressly stated in this EULA. The rights and interests in all copies of or modifications to the Software remain with ThreatDefence.
  3. Improvements: The parties acknowledge and agree that all intellectual property rights in relation to any feedback, ideas, suggestions, proposals, development, modification, adaptation or improvement or in relation to the Software made or acquired by Licensee during the term of the EULA (“Improvements”) will, to the extent permitted by law, vest in and are hereby assigned to ThreatDefence with effect from their creation. ThreatDefence grants to Licensee a licence to use any Improvements on the terms of this EULA. Where title to Improvements is not permitted by law to vest in ThreatDefence, Licensee grants to ThreatDefence a perpetual, irrevocable, transferable, royalty-free, worldwide licence (including the right to sublicense) to use the Improvements for any purpose.
  4. No Challenge: To the extent such prohibition is permitted by law, Licensee must not take any action, and must not assist any person to take any action that may jeopardise, limit, challenge or interfere with ThreatDefence’ ownership of or rights in the Software.
  5. Third Party Claims: If any person alleges, or if ThreatDefence believes, that the use of the Software may infringe the intellectual property rights of any person, ThreatDefence may, at its discretion, suspend Licensee’s licence to use the Software until ThreatDefence:
    (a) has replaced, modified or re-worked the Software, in whole or in part (or direct Licensee to do so) so that such infringement is removed; or
    (b) has procured the right for Licensee to continue use the Software in accordance with this EULA.

Privacy, Confidentiality and Third Party Website

  1. Privacy: ThreatDefence will handle, protect and disclose any personal information of Licensee collected in connection with this EULA in accordance with its Privacy Policy (as amended from time to time), published on the ThreatDefence Website. By using the Software and accessing our Support and Maintenance, Licensee agrees to the terms of the Privacy Policy.
  2. Marketing: By accepting the terms and conditions of this EULA, Licensee consents to receiving marketing and promotional communications from ThreatDefence or its authorised re-sellers from time to time. Any such marketing and promotional communication pursuant to the consent granted under this EULA will provide the Licensee with an ‘unsubscribe’ facility. The consent under this clause is given by Licensee every time Licensee accepts the terms and conditions of EULA in relation to the Software.
  3. Confidentiality: Licensee must treat all information concerning the Software, including the Documentation as confidential and proprietary information of ThreatDefence (other than information that is lawfully in the public domain or lawfully in the possession of Licensee at the time of disclosure). Licensee may not reproduce, use or disclose that information to any person without ThreatDefence’ prior written consent, other than to those of the Licensee’s employees who must have access to such information for the performance of their duties.
  4. Third Party Website: The Software may include links to third party websites, including forums of social media networks. ThreatDefence is not responsible for and do not endorse any features, content, advertising, products or other materials on or available from any third party websites. Licensee acknowledges and agrees that it accesses and use such third party websites subject to the applicable terms of such websites at its own risk.

Product Warranty and Limitation of Liability

  1. Prescribed Terms: Nothing in this EULA excludes, restricts or modifies the application of any legislation which by the law of any jurisdiction cannot be excluded, restricted or modified. In particular, where Licensee is a “consumer” under the Australian Consumer Law (“ACL”), ThreatDefence gives the guarantees as required by the ACL (“Consumer Guarantees”) with respect to the Software and any Support and Maintenance supplied by it.
  2. Product Warranty: In addition to (where applicable) any Consumer Guarantees given in clause 33, ThreatDefence warrants that the Software will perform in accordance with the “specifications” detailed on the ThreatDefence Website, published by ThreatDefence in relation to the Software and will be free from defects in materials and workmanship under normal use for a period of 30 days from the date that the Software is delivered to Licensee (“Warranty Period”). This product warranty does not apply if any errors, defects or problems are caused or contributed to by the causes outlined in clause 19. This product warranty is the sole remedy for any Licensee which is not a “consumer” under the ACL.
  3. ACL Notice: The following notice applies only to a Licensee which is a “consumer” under the ACL: Our goods come with warranties that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
  4. Claim Procedure: If during the Warranty Period, Licensee believes that the Software does not operate in accordance with the specifications:

(a) Licensee must, within the Warranty Period, notify ThreatDefence in writing;
b) ThreatDefence will replace the Software at no charge to Licensee.

  1. Permitted Exclusions: Subject to the clauses 33 and 34 and any express warranties provided in this EULA, all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on this EULA in connection with any goods or services supplied by ThreatDefence or otherwise relating to the performance of ThreatDefence’ obligations under this agreement, are excluded. ThreatDefence does not warrant that the Software will be error free or that its use will be uninterrupted, that it will operate in combination with other software or any particular equipment or system, that it will provide any function other than set out in the Documentation, or that it does not infringe the rights of any third party.
  2. Limitation of Liability: Subject to clauses 33 and 37 and to the extent permitted by law:
    (a) ThreatDefence will not be liable to Licensee for any special, indirect or consequential loss or damage, any loss of profit or business opportunity, any business interruption or loss of business information (including loss of data) arising out of or relating to this EULA, including claims arising out of the use or not being able to use or any defect in the Software, or the Support and Maintenance; whether at common law, under contract, tort (including negligence), in equity, pursuant to statue or otherwise, even if ThreatDefence has been advised of the possibility of such loss;
    (b) ThreatDefence’ liability for any claim arising from a breach of warranty under this EULA or any term, condition or guarantee implied or imposed by statute which by law cannot be excluded (including any Consumer Guarantees) is limited, at the option of ThreatDefence, to the repair or replacement of the goods, the re-supply of those services or the payment of the cost of re-supplying those services; and
    (c) ThreatDefence’ total liability to Licensee under or in relation to this agreement however arising, including under contract, tort (including negligence), under statue or otherwise, arising out of any act, omission or event or connected series of acts, omissions or events will not exceed in aggregate the total amount of Fees paid by Licensee under this EULA.

Termination

  1. Licence Term: The licence granted in clause 4:
    (a) under a Subscription Package continues for the term of the relevant subscription,
    unless terminated by ThreatDefence or Licensee in accordance with its terms.
  2. Termination by Licensee: Licensee may terminate this EULA at any time by giving written notice to ThreatDefence and complying with the conditions of clause 42.
  3. Termination by ThreatDefence: ThreatDefence may terminate this EULA immediately by giving written notice to Licensee if:
    (a) Licensee fails to pay any fees which are due and payable under this EULA within 30 days;
    (b) Licensee fails to comply with any term or condition of this EULA;
    (c) Licensee becomes bankrupt or insolvent; or
    (d) ThreatDefence is required to do so by law (e.g. where the provision of the Software or Support and Maintenance to Licensee is or becomes unlawful).
  4. Consequences of Termination: Upon termination or expiry of this EULA for any reason the Licensee must:
    (a) immediately pay any outstanding amounts owed to ThreatDefence under this EULA and with respect to any Licensee under a Subscription Package, all remaining subscription fee instalments over the subscription period detailed on the Order Form;
    (b) remove the Software from each server it is installed;
    (c) cease all use or exploitation of any intellectual property or confidential information of ThreatDefence relating to the Software; and
  5. Surviving Clauses: Expiry or termination of this EULA for any reason does not affect the rights and obligations of either party arising prior to termination. Clauses 15, 24 to 27, 29, 31 to 38 and 42 survive the termination or expiry of this EULA for any reason.
  6. General:
    (a) Entire Agreement: This EULA constitutes the entire agreement between ThreatDefence and the Licensee in relation to its subject matter and any prior representations, statement or undertaking howsoever made are expressly excluded.
    (b) Amendments: ThreatDefence reserves the right to modify the terms of this EULA from time to time and any such modifications will take effect once published on the ThreatDefence Website or otherwise notified to Licensee. Subject thereto, no amendment or modification to this EULA is valid unless it is in writing and signed by an authorised representative of ThreatDefence.
    (c) Dispute: A party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party specifying the nature of the dispute and the parties’ representatives must endeavour in good faith to resolve the dispute expeditiously prior to commencing any formal proceedings.
    (d)Severance: If any provision of this EULA is declared illegal or unenforceable, such provision is to be severed from this EULA and all other provisions of this EULA will remain in full force and effect.
    (e) Waiver: Any delay or failure by ThreatDefence in enforcing its rights under this EULA is not to be construed as a waiver of those rights.
    (f) Assignment: The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this EULA unless ThreatDefence has given its prior written consent.
    (g) Novation: ThreatDefence may by written notice to the Licensee transfer its rights and obligations under this EULA pursuant to a novation agreement in favour of a transferee who accepts all obligations of ThreatDefence under this EULA. The Licensee must do all things necessary to give effect to such novation, including the execution of relevant documents.
    (h) Vienna Convention: The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to the Software or this EULA.
    (i) Governing law and jurisdiction: This EULA is governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.