Terms and Conditions

Software Licence Agreement – 
The 100 Point Cyber Check TM

PARTIES

1.     Cyberstronomy Pty Ltd ABN 99633861293 (the “Licensor“); and

2.     You, the “Licensee“.

AGREEMENT

1.      Definitions

1.1    In this Agreement, except to the extent expressly provided otherwise]:

Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;

Business Day” means any weekday other than a bank or public holiday in Australia;

Business Hours” means the hours of 09:00 to 17:00 EST on a Business Day;

Charges” means the following amounts:

(a)    the amounts specified in Part 4 of Schedule 1 (Software Licence Particulars); and

(b)    such amounts as may be agreed by the parties in writing from time to time;

Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee;

Effective Date” means the date of execution of this Agreement;

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Minimum Term” means, in respect of this Agreement, the period of 12 months beginning on the Effective Date;

Schedule” means any schedule attached to the main body of this Agreement;

Software” means the software identified in Part 1 of Schedule 1 (Software Licence Particulars);

Software Defect” means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the Licensee or any person authorised by the Licensee to use the Software;

(b)    any use of the Software contrary to the Documentation by the Licensee or any person authorised by the Licensee to use the Software;

(c)    a failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or

(d)    an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;

Software Specification” means the specification for the Software set out in Part 1 of Schedule 1 (Software Licence Particulars) and in the Documentation, as it may be varied by the written agreement of the parties from time to time; and

Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.

2.      Credit

2.1    This document was created using a template from SEQ Legal (https://seqlegal.com).

You must retain the above credit. Use of this document without the credit is an infringement of copyright. However, you can purchase from us an equivalent document that does not include the credit.

3.      Term

3.1    This Agreement shall come into force upon the Effective Date.

3.2    This Agreement shall continue in force for 12 months subject to termination in accordance with Clause 12 or any other provision of this Agreement.

4.      Supply of Software

4.1    The Licensor shall make the Software available for use by the Licensee during the whole of the period of 10 Business Days following the Effective Date, and shall provide to the Licensee such assistance in relation to the use of the Software as the Licensee may reasonably request.

5.      Licence

5.1    The Licensor hereby grants to the Licensee from the date of supply of the Software to the Licensee until the end of the Term a worldwide, non-exclusive licence to execute a single instance of the Software on our cloud platform, to run one cyber check once for one business only, subject to the limitations and prohibitions set out and referred to in this Clause 5.

5.2    The Licensee may not sub-license and must not purport to sub-license any rights granted under Clause 5.1.

5.3    The licence granted by the Licensor to the Licensee in Clause 5.1 is subject to the limitations regarding the number of installations, the identity of users and the number of concurrent users set out in Part 3 of Schedule 1 (Software Licence Particulars).

5.4    The Software may only be used by the officers and employees of the Licensee.

5.5    Save to the extent expressly permitted by this Agreement or required by applicable law on a non-excludable basis, any licence granted under this Clause 5 shall be subject to the following prohibitions:

(a)   the Licensee must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;

(b)    the Licensee must not alter, edit or adapt the Software; and

(c)    the Licensee must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

6.      No assignment of Intellectual Property Rights. Except as permitted by copyright law in the Commonwealth of Australia, you must not communicate or reproduce any materials from the 100 Point Cyber Check TM, including questions or any other files downloaded from this website, without the express written permission of the copyright owner.

6.1    Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.

7.      Charges

7.1    The Licensee shall pay the Charges to the Licensor in accordance with this Agreement.

7.2    All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.

7.3    The Licensor may elect to vary any element of the Charges by giving to the Licensee not less than 30 days’ written notice.

8.      Payments

8.1    The Licensor shall issue invoices for the Charges to the Licensee prior to purchase, and a license will only be issued once payment has been made.

8.2    The Licensee must pay the Charges to the Licensor immediately upon invoice.

8.3    The Licensee must pay the Charges by Paypal.

9.      Warranties

9.1    The Licensor warrants to the Licensee that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

9.2    The Licensor warrants to the Licensee that the Software shall incorporate security features reflecting the requirements of good industry practice.

9.3    The Licensor warrants to the Licensee that the Software will not breach any laws, statutes or regulations applicable under Australian law.

9.4    The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

9.5    The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

9.6    All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

10.    Acknowledgements and warranty limitations

10.1  The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs. Furthermore, while the Software is intended to allow organisations to understand their cyber risks, the Software is not intended to predict or forecast cyber attacks, nor does the Software provide any protection at all against cyber attacks. The Licensee acknowledges that the Software does not provide any recommendations in relation to cyber risk, nor can the Licensor be held in any way responsible if the Licensee is the victim of a cyber attack.

10.2  The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.

10.3  The Licensee acknowledges that the Software is not compatible with any other software.

10.4  The Licensee acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.

11.    Limitations and exclusions of liability

11.1  Nothing in this Agreement will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

11.2  The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this Agreement: 

(a)    are subject to Clause 11.1; and

(b)    govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

11.3  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

11.4  Neither party shall be liable to the other party in respect of any loss of revenue or income.

11.5  Neither party shall be liable to the other party in respect of any loss of use or production.

11.6  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

11.7  Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

11.8  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

12.    Termination

12.1  The Licensor may terminate this Agreement by giving to the Licensee not less than 30 days’ written notice of termination.

12.2  The Licensee may terminate this Agreement by giving to the Licensor not less than 30 days’ written notice of termination.

12.3  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party commits any material breach of this Agreement, and the breach is not remediable;

(b)    the other party commits a a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied]; or

(c)    [he other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).

12.4  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)    is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or

(d)    if that other party is an individual:

(i)    that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)   that other party is the subject of a bankruptcy petition or order.

12.5  The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:

(a)    any amount due to be paid by the Licensee to the Licensor under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Licensor has given to the Licensee at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 12.5.

13.    Effects of termination

13.1  Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 8.2, 8.4, 11, 13, 15 and 16.

13.2  Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

13.3  For the avoidance of doubt, the licences of the Software in this Agreement shall terminate upon the termination of this Agreement; and, accordingly, the Licensee must immediately cease to use the Software upon the termination of this Agreement.

14.    Notices

14.1  Any notice from one party to the other party under this Agreement must be given by one of the following methods (using relevant contact details): 

(a)    delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or

(b)    sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,

        providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

15.    General

15.1  No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

15.2  If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3  This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

15.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

15.5  This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

15.6  Subject to Clause 11.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

15.7  This Agreement shall be governed by and construed in accordance with Australian law.

15.8  The courts of Victoria shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

15.9  The Licensor will not share any of the data collected through the Licensee’s use of the software, except for the purposes of research, which shall be conducted in partnership with a bona fide research organization. No sensitive personal information will be shared with any other organization, unless as required by a court subpoena. The Licensee agrees to the use of their company name in the Licensor’s marketing and promotional materials, including publication on the Licensor’s website.

16.    Interpretation

16.1  In this Agreement, a reference to a statute or statutory provision includes a reference to: 

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

16.2  The Clause headings do not affect the interpretation of this Agreement.

16.3  References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

16.4  In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

EXECUTION

By purchasing the software, the Licensee is indicating their acceptance of this Agreement.

SCHEDULE 1 (SOFTWARE LICENCE PARTICULARS)

1.      Specification of SoftwareThe 100 Point Cyber Check TM is a software tool designed to give small-medium enterprises a cyber risk rating, based on a self-reported assessment of their current cyber security practices. The 100 Point Cyber Check TM is only accessible through a web interface hosted in the cloud. Once a license has been purchased, the software can be used only for a single risk assessment for a single organization. After entering self-report data, the Licensee will receive a cyber risk and rating and a short report. If the Licensee purchases further licenses, the risk assessment can be repeated at regular intervals, to provide an assessment of cyber risk maturity.