End User Licence Agreement – for use of Perimeta for 365
THIS AGREEMENT is between you the end user (“Customer”) and oobe Pty Ltd ABN 48 123 977 846 (“Seller”). By using the Service, Customer and its Authorised Users agree to these terms and conditions.
1. DEFINITIONS
1.1. Definitions:
“Agreement” means this Agreement including as varied.
“Appliance” means a physical or virtual appliance, device, CPU, platform, storage or database when it is loaded into temporary memory, accessed, downloaded or installed, on the Customers premises or in Azure or a similar virtual platform.
“ADC” or Australian Disputes Centre means the organisation of this name or its replacement.
“Authorised User” means the Customer, its employees, authorised contractors and any any person using or interacting with the Service as part of a subscription to the Service.
“Business Days” means Monday to Friday in Sydney Australia, excluding all national statutory holidays and locally observed anniversary days in the Australian Capital Territory.
“Business Hours” means 9:00am to 5:00pm during Business Days.
“Commencement Date” means the date of activation of the Service at the Delivery Address and the required Software is “in use” by the Customer and/or its Authorised Users on an Appliance.
“Customer Data” means any information or data resulting from the Customer’s use of the Software including data, information, records, lists, configurations and works (including computer generated works) processed, transmitted or accessed by Seller in connection with the performance of the relevant Services.
“Delivery Address” means the physical address, or the e-mail address(es) to which the Service is to be delivered.
“DNS” means domain names server.
“Environment” means the information technology and telecommunications infrastructure used in a Customer’s organisation (including, cloud service, datacentre, software, equipment, systems and networks and any other third-party infrastructure or environment).
“GST” any goods and services tax, value added tax or tax of similar effect.
“Intellectual Property Rights” or “Intellectual Property” means copyright, trademark, design, patent, rights or other intellectual property rights, whether registered or unregistered, arising under statute or otherwise.
“Jurisdiction” means Australia.
“Licence” means a licence(s) for any subscription and/or Software provided by Seller (as licensor or reseller) as described in clause 2.1.
“Licence Period” means the pre-paid subscription period for the Service identified in an order associated with the Service.
“On-Site” means the Customer’s premises.
“Personal Information” means personal information as defined in the Privacy Act 1988 (Cth).
“Pre-existing IP” means Intellectual Property Rights owned or licensed to a party which existed at the time of execution of this Agreement or is created by a party outside of this Agreement, including all adaptations, modifications and new versions of those materials.
“Related Body Corporate” has the meaning set out in the Corporations Act 2001 (Cth)) and Related Bodies Corporate will be construed accordingly.
“Services” or “Service” means the Software provided as a service and related support services described in this Agreement.
“Software” means Perimeta® for 365 being software that provides automated security compliance by assessing and actively monitoring existing Microsoft 365 and / or GovLink TLS deployments for configuration drift and unauthorised changes, together with its associated documentation and modules as updated by Seller during the Licence Period. Software includes any updates, modifications, enhancements, adaptations or developments.
“Taxes” means taxes, duties, fees or other government imposts, levies or charges, incurred by Seller as a result of the execution or performance of this Agreement, but does not mean GST or taxes assessed on the profits of Seller.
“Term” means the period identified pursuant to clauses 7.1.
“Usage Data” means configuration and change records related to configuration and statistics related to the Software.
2. PROVISION OF SOFTWARE AS A SERVICE
2.1. Software Licence:
a) Seller grants to the Customer a non-transferable, revocable (in the event of failure to comply with the terms of this Agreement) non-exclusive licence in the Jurisdiction from the Commencement Date to use the Software provided as a Service for its own internal business purposes; and operate the Software in the manner and for the purposes specified in this Agreement for the Licence Period.
b) The Customer must and must ensure that its Authorised Users only access and use the Software and Service as licensed under this Agreement.
2.2. Restrictions on use
a) Customer must not allow or permit any other person directly or indirectly, including its employees, agents, contractors or any of its Related Body Corporate to:
i) access or use the Service other than for the Permitted Purpose;
ii) integrate or merge any part of the Service with another information, system or software program without the prior written consent of Seller;
iii) copy, alter, modify, reproduce, translate, reverse engineer, decompile, disassemble, create derivative works based on the Software and Service; or
iv) sublicense, transfer assign or sublicense rights to any other person or entity (except as necessary pursuant to a machinery of government change if the Customer is an Australian government agency);
v) remove any proprietary notice, labels, or marks on the Software and containers unless where the capability is provided as a feature of the Service;
vi) interfere with a platform for use of the Service;
vii) use automated means to access online portions of the platform for the Service;
viii) use the Service for third-party training, commercial time-sharing or service bureau use or use the Service to provide services to third parties;
ix) share non-public features or content of the Service with any third-party; or
x) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Software;
2.3. Commencement and Termination: The Seller provides the Services from the Commencement Date for the duration of the Licence Period and will subject to this Agreement withdraw Services at the end of the Licence Period.
2.4. Minimum operating environment for Perimeta® for 365:
a) Customer must maintain any applicable minimum operating environment required to access the Service.
b) Customer must maintain current licences for the following Microsoft 365 components “Defender for Office 365” and “Data Loss Prevention” and provide Seller with access to the Customer’s DNS service.
c) Customer must maintain all administrative, physical and technical safeguards for the security, confidentiality and integrity of customer data stored on the Customer’s Microsoft 365 subscription.
d) Seller may by notice to Customer modify the minimum operating environment.
e) If the Customer does not maintain the required minimum operating environment, Seller will not be able to access the Service.
2.5. Support Services: Seller must provide help to an Authorised User during Business Hours for general assistance related to the Service.
2.6. During the Licence Period Seller will:
a) use reasonable commercial endeavours to investigate any errors in the Software provided as part of the Service and correct or circumvent any Software error or malfunction during Business Hours; and
b) provide, at no additional cost maintenance updates for the Software as is generally made available by Seller to its customers from time to time at no additional cost.
2.7. The Service does not include:
a) correction of any operator error;
b) failure of the Service due to third-party software configuration issues or non-compliance by Customer with the terms of this Agreement;
c) fault or negligence of Customer or a third-party; or
d) improper use or misuse of the Service or associated equipment or Software by Customer or a third-party.
2.8. Intellectual Property Rights: Ownership of all Intellectual Property Rights in Software that is part of the Service shall remain with Seller or its licensors.
2.9. Warranty: Seller warrants:
a) To the best of its knowledge, the Service does not infringe any Intellectual Property Rights of any third-party.
b) That during the Licence Period, the Service will operate in substantial conformity with its published specifications.
Provided that this warranty does not apply where the Software or the Appliance on which the Software is authorised to be used as part of the Service has been altered by a third-party not authorised by Seller.
2.10. Where the Service does not operate in accordance with clause 2.9.b), the Seller will use all reasonable commercial endeavours to investigate the error or malfunction responsible for such non-conformity and to correct or circumvent it provided that Customer notifies Seller of such non-conformity during the Licence Period.
2.11. Customer acknowledges that, due to the nature of the Service, the operation of the Service may not be uninterrupted or error free, and that not all errors are able to be rectified by error correction or avoidance action.
2.12. Termination: Seller may not terminate any Licence except for breach by Customer of the terms of the License or this Agreement. If Seller terminates a Licence for breach, Seller may exercise any other right or remedy available to it. Promptly following the termination of this Agreement or the Licence, the Customer will return or destroy the original and all copies of any Intellectual Property received from Seller or made pursuant to this Agreement or the Licence to which the Software relates as Seller directs and certify (if required) to Seller in writing that such action has been taken. This requirement will apply to all copies on any media including translations whether partial or complete, and whether or not merged into other materials as authorised by Seller.
2.13. Audit: Seller and its licensors will be entitled on reasonable notice to the Customer to audit, on an annual basis or until the resolution of a license dispute the number of Authorised Users and associated Microsoft Licenses, using the Service by the Customer. Seller must comply with reasonable security requirements of the Customer. Seller may agree to accept a compliance statement against usage in place of a formal audit at its absolute discretion.
3. OPEN-SOURCE SOFTWARE
3.1. The Software supplied may contain open-source software components that are distributed under the GNU General Public License. Seller does not make any representations or warranties with respect to such components, which are to the extent permitted by law provided as is.
3.2. The open-source software is not licensed under clause 2.1, and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. Customer agrees to comply with the terms and conditions of such open-source software licence agreements.
4. SOFTWARE- GENERAL
4.1. Alternative Software: Seller may:
a) substitute elements of the Software; or
b) modify the Software;
provided that the substituted or modified item is substantially equivalent or superior in performance and functionality to the item which the substituted or modified item replaces.
4.2. Access and facilities: In connection with the provision of any Service, the Customer will, as required:
a) provide Seller with safe access to the Customer’s premises at which Seller is required to perform any work and provide access to all relevant information, Data, equipment, Environments, Authorised Users and Software;
b) make accessible Customer personnel who are familiar with the Customer's operations, equipment, software and applications;
c) for On-Site Services, provide suitable working space and facilities;
d) assist with diagnosing and identifying faults and consent to and arrange for the temporary disconnection and isolation of any equipment or software which is not supplied or maintained by Seller;
e) consider and respond (including providing any relevant approvals) in a timely manner to all items submitted to it by Seller; and
f) manage all other suppliers of equipment, software and services that impact upon the delivery of the Service to minimise interference with Seller’s performance of its obligations under this Agreement.
4.3. In addition to its other obligations under this Agreement, Customer will:
a) not use, and not allow anyone that has access to or uses the Services or Seller’s infrastructure (including any third-party cloud infrastructure) to use them for illegal, fraudulent or destructive purposes, including unauthorized or attempted unauthorized access, alteration, spamming, abuse or destruction of information; and
b) not insert, or permit to be inserted or introduced into any of Seller’s infrastructure (or any third-party cloud infrastructure) any disabling code.
4.4. Security breach: If either party becomes aware or suspects that any unauthorised person has obtained, attempted to obtain, or may obtain access to any information or has used or attempted to use any Customer Data for purposes not authorised or permitted by this Agreement:
a) that party will immediately notify the other party; and
b) that party will take such steps as are reasonably commercially available to it to limit the extent of the breach.
4.5. In the event of a security breach under clause 4.4, the parties will cooperate with each other in respect of any investigation into the cause of the breach including such changes as may be reasonably necessary or available to prevent, as far as is practicable, the occurrence of the same or similar breaches of security in the future.
4.6. Service hours: Seller will perform Services during Business Hours.
4.7. Laws: Each party shall comply with all mandatory national and international laws and regulations applicable to their respective obligations and rights under this Agreement. Customer shall remain solely responsible for the compliance with law applicable to its own business and operation and for ensuring that the Services fulfil all legal and regulatory requirements applicable to Customer.
4.8. Subcontractors: Seller may subcontract, without the prior written consent of the Customer, any element of the Services including to its Related Bodies Corporate.
4.9. Customer Data and Usage Data:
a) The Software stores only Customer configuration and access control information and does not store any other Customer Data and the Software provides protection of the configuration that is determined.
b) Customer shall own all Customer Data.
c) The Seller will not collect or store Customer Data, other than Usage Data.
d) Customer hereby grants to the Seller a royalty-free, non-exclusive license, with the right to sublicense to its related bodies corporate, to use the Usage Data related to Customer’s use of the Software, in aggregate and anonymous format only, for any business or commercial purpose, including statistical analysis with respect to usage and traffic patterns, improving the Software, in connection with the further development of the Software, or for marketing purposes. The Seller has no liability under this Agreement for the protection of Customer Data, except the extent resulting from the Seller’s breach of this clause 4.9b).
5. LIMITATION OF LIABILITY
5.1. Except as expressly provided in this Agreement, and to the full extent permitted by law, all express or implied warranties, representations, terms and conditions regarding Software and their use (including without limitation their merchantability or fitness for any particular purpose), or regarding this Agreement are expressly excluded. Without limiting the foregoing, the Customer agrees that all supplies under this Agreement are or will be supplied for the purposes of a business.
5.2. The terms and conditions of this Agreement that exclude or limit Seller's liability will apply to the full extent permitted by law. Provisions of statutes from time to time in force in the Jurisdiction may imply warranties or conditions or impose obligations upon Seller which cannot be excluded or modified. This Agreement must be read and interpreted subject to any such statutory provisions. If any such statutory provisions apply, then to the extent permitted by law, Seller's liability for breach of those statutory provisions will be limited at its option to:
a) if the breach relates to Software:
i) replacement of the Software for the supply of equivalent goods;
ii) repair of the Software;
iii) payment of the cost of replacing the Software or of acquiring equivalent goods; or
iv) payment of the cost of having the Software repaired; and
b) if the breach relates to Services:
i) supplying of the Services again; or
ii) payment of the cost of having the Services supplied again.
5.3. Limitation of Liability:
a) To the maximum extent permitted at law Seller is not liable for any loss or damage related to:
i) the use of the Software in connection with high risk activities;
ii) computer failure or malfunction;
iii) computer security breaches;
iv) virus infection or the loss of information or data contained in, stored or integrated with the Software; or
v) any web browsers requirements or any third- party device or Appliance used to operate the Service.
b) Notwithstanding any other provision in this Agreement to the contrary, the Seller’s aggregate liability to the Customer and its Authorised Users for all claims arising under or in connection with this Agreement whether in contract, tort (including negligence) common law, equity, statute, under an indemnity, or otherwise, will to the full extent permitted by law, not exceed AUD $50,000.
5.4. Unlimited liability: clause 5.3.a) will not apply to, and will not limit the liability of either party for any claims arising under or in connection with this Agreement whether in contract, tort (including negligence) common law, equity, statute, under an indemnity, or otherwise, as a result of a claim that cannot be limited at law, breach of obligations of confidentiality; and for Seller, clause 6.5 of this Agreement.
5.5. Mitigation: Each party will take all commercially reasonable steps to mitigate any claim or loss sustained or incurred as a result of any breach or default of the other party and neither party shall be liable to the extent caused or contributed to by the other party.
5.6. Proportionate Liability: The liability of a party for any losses suffered or incurred by the other party arising out of any breach, act, omission, fault or negligence of the first party relating to this Agreement will be reduced to the extent that the other party caused or contributed to such losses through the other party’s breach of this Agreement, act, omission, fault or negligence.
5.7. Indirect loss or damage: Neither party will, under any circumstance, be liable under or in relation to this Agreement for:
a) special, indirect and consequential damages; or
b) damages, however caused, comprising or resulting from loss of data, network, opportunity, business, revenue, profit, reputation, goodwill or failure to make anticipated savings.
5.8. Survival: The limitations on liability stated in this clause 5 apply to any claim (whether contractual, tortious, statutory or otherwise) which arises under or in connection with this Agreement and will survive termination, discharge or rescission of any Software under this Agreement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Intellectual Property: Ownership of all Intellectual Property Rights in Software shall remain with Seller or its licensors.
6.2. Customer hereby grants the Seller and its Related Bodies Corporate a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorised Users relating to the Software.
6.3. The Customer acknowledges that it will not obtain any Intellectual Property Rights (including in any Pre-existing IP or Intellectual Property Rights which are owned by a third party) to unless otherwise expressly provided in an Agreement. At the intended owner’s cost, the other party will do all things and sign all instruments reasonably required to give effect to this clause 6.
6.4. The Customer will not take any action inconsistent with the Intellectual Property Rights of Seller or the relevant licensor of any Software. The Customer will not change, remove or obscure any labels, legends, plates, insignia, lettering or other markings which are on any Software.
6.5. Subject to clause 6.7, Seller will, at its expense, defend any action brought against Customer in the Jurisdiction which claims that the use of any element of the Service infringes in the Jurisdiction the Intellectual Property Rights of a third party and will pay all costs, damages and legal fees finally awarded against Customer in any such action and which are attributable to such claim provided that Customer:
a) promptly notifies Seller of the action or of any allegation of infringement;
b) gives Seller the sole control of the defence of the action and all negotiations for its settlement or compromise;
c) has not admitted and does not admit liability for the alleged infringement;
d) provides Seller with such assistance in the defence and negotiations for settlement or compromise of the claim as Seller may reasonably require; and
e) does not incur any cost or expense concerning the action on behalf of or in the name of Seller without Seller's prior consent.
6.6. If any action referred to above is brought or threatened, Seller may at its option:
a) procure for the Customer, at Seller's expense, the right to continue using the allegedly infringing Software; or
b) modify the Service so as to avoid the infringement.
6.7. For any Software that is provided by a third party, clauses 6.5 and 6.6 will not apply. Where the owner or the licensor of the Software has warranted to Seller that such Software does not infringe any Intellectual Property Rights in the Jurisdiction and/or has agreed to indemnify Seller against any such infringement, Seller will use reasonable efforts to pass on the benefit of that warranty and/or indemnity to the Customer, provided that the Customer notifies Seller as soon as it becomes aware of any alleged infringement and complies with any conditions applicable to such warranty and/or indemnity.
6.8. Except as provided in this clause 6 Seller will have no liability to the Customer for:
a) any action brought against the Customer, or any allegation of infringement of any Intellectual Property Rights of any third party arising from the Customer’s use of any Software; and/or
b) an alleged infringement which is based on the use of any Software, other than as licensed by Seller, or in combination with equipment, software or services not supplied or approved by Seller.
7. TERMINATION
7.1. This Agreement shall be effective from the Commencement Date and will last for the Licence Period unless otherwise terminated in accordance with this clause 7 and the terms of this Agreement.
7.2. The Seller may, without prejudice to any of its other rights or remedies under this Agreement, at law or in equity terminate its obligations under this Agreement including access to the Service immediately if the Customer:
a) becomes subject to insolvency; or
b) or its Authorised Users are in material breach of this Agreement.
7.3. Termination of this Agreement will be without prejudice to any rights which have accrued to either party prior to such termination.
7.4. The provisions of clauses 5, 6, 7 and 8 and any provision which expressly or by implication applies upon or following termination, will survive termination of this Agreement for any reason.
8. GENERAL
8.1. Assignment: Neither party may assign and/or novate this Agreement in whole or in part without the prior written consent of the other party (which may not be unreasonably withheld) with the exception of Seller to any of its Related Bodies Corporate in the Jurisdiction and the Customer pursuant to a machinery of government change.
8.2. Entire Agreement: Each Agreement constitutes the entire agreement and understanding between the parties concerning the Service supplied pursuant to it and supersedes all prior or contemporaneous agreements, proposals, discussions and communications between or involving the parties and related to the Software whether oral or written.
8.3. Waiver:
a) No right under this Agreement will be waived except by notice signed by the waiving party.
b) Subject to a) above, any failure by a party to enforce any of the provisions of this Agreement, or any delay or indulgence granted by one party to the other, will not be interpreted as a waiver of that party's rights under this Agreement, and will not prejudice that party's rights concerning any subsequent breach of this Agreement by the other party.
8.4. Force Majeure: Neither party will be liable for any delay or for failure to perform its obligations under this Agreement (except obligations relating to payment), resulting from any cause beyond its reasonable control, including, but not limited to: acts of God; inclement weather; fire, explosion or flood; epidemics or pandemics; strikes; work stoppages, slowdowns or other industrial disputes; riots or civil disturbances; acts of government; inability to obtain any necessary licence or consent; and delays caused by suppliers or material shortages. Seller and Customer will, if practicable, give to each other immediate notice of the occurrence of any such event and will as soon as the event ceases to affect the performance of obligations under the relevant Agreement resume compliance with their obligations.
8.5. Dispute Resolution: If any dispute between the parties under this Agreement (“Dispute”) cannot be settled amicably, in a timely fashion and by negotiation in good faith, including in respect of breach, termination, validity or subject matter hereof, then either party may notify the other party in writing of its intention to raise such matter to the level of Dispute. Should the matter not be resolved within fourteen (14) days of such notice then a Dispute will exist between the parties.
8.6. If a Dispute exists the parties may by joint election agree to settle it through mediation administered by the ADC and in the event that the Dispute has not been settled within twenty-eight (28) days (or such other period as agreed in writing by the parties) after the appointment of a mediator, the Dispute shall be submitted to expert determination administered by ADC. In the event the parties do not jointly elect to settle via mediation, neither party is bounded to resolve the matter through mediation or expert determination.
8.7. The expert shall be a person mutually agreed by the parties. ADC may assist the parties by providing a list of suggested experts. Failing agreement, ADC shall appoint the expert. In no event shall the expert and mediator be one and the same person.
8.8. The parties agree to accept the determination of the expert as final and binding. The cost of any mediator and any expert shall be borne equally by the parties. All mediation and/or expert determination shall take place in the capital city of the Jurisdiction.
8.9. The United Nations Convention on Contracts for the International Sales of Goods is expressly excluded.
8.10. Jurisdiction: This Agreement will be exclusively governed by and interpreted under the laws of Australia and the parties submit to the non-exclusive jurisdiction of the courts in the Australian Capital Territory.
8.11. Severability: Any part, term or provision of this Agreement which is determined to be void, illegal or unenforceable will be severed from the Agreement and the remaining parts, terms and provisions will remain in full force and effect.
8.12. Variations: This Agreement may be altered or varied by Seller.
8.13. Anti-Bribery and Corruption: Each party shall at all times comply with the applicable laws relating to anti-bribery including but not limited to the OECD Convention policies against corruption, the Foreign Corrupt Practices Act of the USA, the UK Bribery Act 2010 and the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the “Applicable Anti-Bribery Laws”). The parties shall not engage in any activity, practice or conduct which would constitute an offence under the Applicable Anti-Bribery Laws and shall have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Applicable Anti-Bribery Laws and shall enforce them where appropriate.