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Firebug End User Licence Agreement (EULA)

1. Definitions
In this Agreement the following definitions apply:


Additional Services means any ad hoc services listed in the Customer Order that Hyprfire has agreed to provide to Customer.  This may include installation, ad hoc support above the Standard Support Services, reporting, training and other professional services.
Affiliate means any entity that a party directly or indirectly Controls (e.g., subsidiary) or is Controlled by (e.g., parent), or with which it is under common Control (e.g., sibling). 'Control' has the meaning given to that term in section 50AA of the Corporations Act 2001 (Cth).
Agreement has the meaning given in clause 3(a).
Confidential Information with respect to a disclosing party, means all information, data and material disclosed by such disclosing party to the receiving party (in whatever form) that is marked or described as, or provided under circumstances reasonably indicating it is, confidential or proprietary. Confidential Information does not include information that: 
(a) is or becomes generally available in the public domain, other than through any breach of confidence by the receiving party; 
(b) is rightfully received by the receiving party from a third party other than as a result of a breach of confidence; or 
(c) has been independently developed by the receiving party without using any other Confidential Information of the disclosing party.
For clarity, Hyprfire Confidential Information includes all non-public information and materials (technical, business and otherwise) related to the Products or the Additional Services that are provided by Hyprfire to Customer in relation to this Agreement, including the Performance Information.
Customer means the customer listed in the Contract Details.
Customer Materials means any material made available by, or on behalf of Customer, to Hyprfire in connection with this Agreement, excluding any Performance Information.
Customer Order means the purchase order signed by Customer and Hyprfire or the applicable Partner, as identified in the Contract Details.
Fees means the fees set out in the Customer Order.
Firebug means:
(a) the software security product known as Firebug, including all related software and documentation and any Updates; 
(b) the monitoring services supplied by Hyprfire using the Firebug; and
(c) the Standard Support Services,
as described in the Product Description.
Firefly means the client-side data collection application known as Firefly, including all related software and documentation and any Updates, and any support services described in the Product Description.
Force Majeure Event means fire, flood, earthquake, elements of nature or acts of God, epidemics, pandemics, wars, terrorist acts, site-specific terrorist threats, cyber-attacks and threats, riots, civil disorders, rebellions or revolutions, government orders, network communications failure or delay (including failure of any APIs), change in law or any other cause beyond the reasonable control of a party.

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hyprfire means Hyprfire Pty Ltd (ACN 645 515 206) of Level 32, 152 St Georges Terrace, Perth WA 6000.
Hyprfire Materials means (a) the Products; (b) any documentation and any other material provided by, or on behalf of, Hyprfire in connection with the Products or the Additional Services; (c) anything developed by or on behalf of Hyprfire in connection with this Agreement; (d) all Improvements to the materials described in (a), (b) and (c) made by or on behalf of either party; and (e) all Performance Information and information generated by Customer’s use of the Products.
Hyprfire Privacy Policy means the document available at https://www.hyprfire.com/privacy-policy, as updated from time to time.
Improvement means modification, enhancement, adaptation or improvement of the relevant material.
Intellectual Property Rights means all copyrights, patents, rights with respect to trade marks, service marks, and trade dress, trade secret rights, rights in domain names, rights with respect to databases and other compilations and collections of data or information, publicity rights, and other intellectual and industrial property rights anywhere in the world, whether statutory, common law or otherwise.
Interest Rate means the Reserve Bank of Australia’s official cash rate target at the relevant date, plus 3 percent.
IPR Claim has the meaning given in clause 11.1.
Partner means the entity identified in the Contract Details (if any).
Performance Information means non-identifiable metadata and other performance information generated by or from the Products.   
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Products means the products listed in the relevant Customer Order to be supplied by Hyprfire, which may include the Firebug and Firefly products.
Product Description means the descriptions of the Products, as set out on www.hyprfire.com or otherwise provided to Customer. 
Representative means:
(a) for Customer, the individual listed in the Contract Details; and 
(b) for Hyprfire, the Managing Director (info@hyprfire.com).
Standard Support Services means:
(a) software Updates as made available by Hyprfire at its discretion; and
(b) subject to clause 4(d), up to one hour per calendar month of remote technical support, available business days 9am-5pm AWST.
Subscription Initial Term means the duration of Customer’s initial subscription for each Product, as set out on the Customer Order.
Subscription Start Date means the earlier of: (i) the date when the relevant Product deployment commences; or (ii) the date this Agreement is signed by the Customer.
Subscription Term means the time from the Subscription Start Date until the end of the Subscription Initial Term, subject to any extensions under clause 5.2.
Term has the meaning given in clause 5.1.
Terms and Conditions means the Contract Details and clauses 1 to 16 of this document.
Third Party Material means all software, APIs, data, and any other content and material that are obtained or derived from third party sources (i.e. sources other than Hyprfire or Customer) that Customer may access or use in connection with this Agreement. 
Third Party Terms takes the meaning set out in clause 10.3(a).
Updates means any correction, update, upgrade, patch, or other modification or addition made by Hyprfire to the Products and provided or made available to Customer by Hyprfire from time to time.


2. Interpretation
In this Agreement:
 (a) words importing the singular shall include the plural (and vice versa) and words denoting a given gender shall include all other genders;
(b) a reference to a “person” includes an individual, a body corporate, a trust, an agency and other body;
(c) a reference to a party includes a reference to its executors, administrators, successors and assigns; and
(d) this Agreement is not to be construed against a party merely because that party was responsible for preparing it.


3. Structure
(a) This Agreement consists of: (i) these Terms and Conditions; (ii) any other policies or other documents incorporated into these Terms and Conditions by reference; and (iii) subject to3(c), the Customer Order.
(b) If any terms in this Agreement are inconsistent, the terms will prevail in the order listed in paragraph 3(a) to the extent of the inconsistency.
(c) The only terms of the Customer Order that are incorporated into this Agreement are those stating the Products and/or Additional Services purchased by Customer (including the package level), the Subscription Start Date, the Subscription Initial Term, any Fees payable to Hyprfire, and any other terms that place obligations on Customer will be incorporated in this Agreement (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer Order).
 

4. Customer Orders through Partners
(a) If Customer has made its Customer Order through a Partner (rather than Hyprfire), this clause 4 applies.
(b) The parties acknowledge that:
   (i) Hyprfire has appointed partners (including Partner) to promote the Products to potential customers (including Customer);
   (ii) Customer has entered into the Customer Order with Partner, under which Customer has agreed to pay fees to Partner, in consideration for Partner agreeing to procure that Hyprfire provides the Products and/or Additional Services to Customer; and
   (iii) Customer is entering into this EULA with Hyprfire, under which Hyprfire agrees to provide the Products and/or any Additional Services directly to Customer, in consideration for Customer agreeing to pay the fees to Partner.
(c) Any Customer Order through a Partner is subject to, and Hyprfire’s obligations and liabilities to Customer are governed by, this Agreement.
(d) Before contacting Hyprfire with any support requests, Customer must make reasonable attempts to first resolve any issues with Partner.  Hyprfire reserves the right to refer any support requests to the applicable Partner on a case-by-case basis at its sole discretion.
(e) Customer must promptly pay any fees due to the Partner under the Customer Order.
 

5. Term
  5.1 Term
This Agreement will start on the date it is signed by the Customer and will expire: 
(a) if Customer has purchased one or more Products, at the end of the final Subscription Term to expire or be terminated; or
(b) otherwise, when the Additional Services have been fully completed, (the Term).
5.2 Subscription Term
Hyprfire must provide each Product to Customer during the Subscription Term for that Product.  After expiry of the Subscription Initial Term, the Subscription Term will continue for successive annual periods during which either party may terminate this Agreement by giving 90 days’ notice to the other party.
 

6. Hyprfire responsibilities
(a) Subject to Customer having complied with its obligation to pay any Fees due under the Customer Order, Hyprfire will:
   (i) where Customer has purchased a Product, provide the Product materially in accordance with the Product Description; and
   (ii) where Customer has purchased Additional Services, provide the Additional Services materially in accordance with any description set out in the Customer Order.
(b) Hyprfire makes no commitments about the future availability of any Product or any Additional Services.
(c) Hyprfire is not responsible for installing the Products unless Customer purchases installation services as Additional Services. 
(d) Hyprfire is not responsible for any other services that Customer may require in order to utilise the Products, including internet or telecommunications services.
(e) Hyprfire may update the Products and the Product Descriptions at any time.  Hyprfire must give Customer at least 30 days’ notice of any proposed updates. If Customer will be impacted by the proposed amendments, Customer is entitled to terminate this Agreement by notice to Hyprfire, at any time before the proposed updates come into effect.
 

7. Customer’s responsibilities 
 7.1 Customer assistance
The Customer must:
(a) provide reasonable access to Customer’s premises, software systems, network and personnel to enable Hyprfire to   (b) provide the Products and the Additional Services, subject to Hyprfire complying with Customer’s reasonable requirements of access;
(c) provide any information reasonably requested by Hyprfire in connection with this Agreement;
(d) ensure that it makes appropriately qualified personnel available to Hyprfire to answer questions and provide reasonable assistance to Hyprfire for the purposes of this Agreement; and
(e) ensure its systems are configured to permit external feeds which transfer the Product logs to Hyprfire for analysis.
To the extent that Hyprfire’s performance is delayed, prevented, restricted, or interfered with due to the failure of Customer to comply with the obligations of this clause 7.1, Hyprfire is not responsible for any failure to perform its obligations under this Agreement (either at all, or within any particular timeframe) to the extent resulting from or relating to any act or omission of the Customer. 
 7.2 Customer obligations
Customer must:
(a) not commercially exploit or make available for the benefit of any third party any part of the Products;
(b) not deploy the Products to additional network locations other than those specified under this Agreement or as agreed between the parties;
(c) not copy, alter, modify, disassemble, reverse engineer or reproduce the Products except to the extent permitted by this Agreement;
(d) ensure that the Products are protected at all times from misuse, damage, destruction or any form of unauthorised use; 
(e) not take any action that is likely to affect the use, functionality, security or integrity of the Products; and
(f) promptly notify Hyprfire if Customer becomes aware of any matter that may affect the security or integrity of the Products.
 

8. Free trials
 (a) This clause 8 only applies where the Customer Order states that Customer is receiving a Product as a free trial.
(b) The terms of this Agreement apply in full to any free trial, except that: 
   (i) the Subscription Term is deemed to be 30 days and it cannot be extended under clause 5.2;
   (ii) despite clause 6, to the extent permitted by law, the Product is provided on an “as-is” basis, without any warranties relating to quality or performance;  
   (iii) despite clause 14 (Liability), Hyprfire’s aggregate liability to Customer for all loss suffered or incurred arising out of or in connection with this Agreement (whether under statute, in contract, tort (including negligence), in equity, under an indemnity, or on any other basis) is limited to $500; and
   (iv) despite clause 15 (Termination), either party may terminate this Agreement at any time immediately upon giving notice to the other party.
 

9. Payment and invoicing
 (a) If Customer has made its Customer Order through Hyprfire (rather than a Partner), this clause 9 applies. 
(b) Hyprfire will invoice Customer on the payment terms set out in the relevant Customer Order for the Fees.  If no payment terms are specified in the Customer Order, Hyprfire will invoice Customer monthly in arrears.
(c) Customer must pay each invoice in Australian dollars within 30 days after the invoice issue date.
(d) If Customer raises a genuine dispute regarding part or all of an invoice in accordance with the process set out in clause 16.1, Customer may withhold payment of the disputed amount until the dispute is resolved.
(e) If Customer fails to pay any undisputed amount when due, and the amount is still outstanding 14 days after receiving a reminder notice from Hyprfire, then, in addition to Hyprfire’s other remedies, Hyprfire may charge Customer interest on the unpaid amount at the Interest Rate from the date of the reminder notice, until the date that the unpaid amount is paid.
(f) The Fees and any other expenses or charges under this agreement are exclusive of GST and any other taxes (unless stated otherwise). 
(g) Customer must pay all taxes imposed by applicable law in connection with this Agreement, except for taxes based on Hyprfire’s income.  Customer must pay Hyprfire any GST applicable to any taxable supplies, and Hyprfire will provide Customer with tax invoices for those supplies.
(h) If Customer is legally required to make any deduction or withholding from any amount payable to Hyprfire in relation to this Agreement, then, unless the deduction or withholding is required due to a breach or failure by Hyprfire, the amount payable will be increased to ensure Hyprfire receives the full amount specified in this Agreement as if there were no deduction or withholding.
 

10. Intellectual Property
10.1 Hyprfire Materials
(a) Hyprfire (or its licensors) owns all rights, titles and interests, including all Intellectual Property Rights, in and to the Hyprfire Materials. 
(b) Hyprfire grants Customer a non-exclusive, non-transferable, personal and revocable licence to use the Hyprfire Materials during the Term for Customer’s internal business purposes. 
(c) To the extent that any rights, titles and interests, including all Intellectual Property Rights, in the Hyprfire Materials vest in Customer on creation, Customer hereby assigns to Hyprfire all such rights, titles and interests. 
10.2 Customer Materials
(a) The Customer owns all rights, titles and interests, including all Intellectual Property Rights, in and to Customer Materials. 
(b) The Customer grants Hyprfire a worldwide, non-exclusive, royalty free right to use Customer Materials (and to sublicense third parties to use Customer Materials) for the purpose of fulfilling its obligations under this Agreement.
(c) The Customer must ensure that: (i) Customer is permitted to provide the Customer Materials for use by Hyprfire in accordance with this Agreement; and (ii) the Customer Materials (and use of Customer Materials in accordance with this Agreement) do not infringe the rights of any third party, including Intellectual Property Rights or rights related to confidentiality or privacy.
10.3 Third Party Material
(a) Subject to clause 10.3(b), Hyprfire may, from time to time, notify Customer of additional terms that apply to access or use of Third Party Material (Third Party Terms).  Customer must comply with all Third Party Terms.
(b) Hyprfire must give Customer at least 30 days prior notice of any new or amended Third Party Terms.  The Customer is entitled to terminate this Agreement by notice to Hyprfire at any time before the end of this notice period.
10.4 Feedback and improvement
If Customer provides any feedback or comments to Hyprfire in relation to the Products or the Additional Services, Hyprfire may use that feedback for any purpose and without attribution.  Hyprfire may collect Performance Information and may use such Performance Information for any purpose, including the ongoing development and improvement of the Products.  
11 Intellectual Property Indemnity
 11.1 Indemnity
Each party (the Indemnifying Party) indemnifies the other party (and its personnel and related parties) (the Indemnified Parties) against:
(a) any settlement amounts approved in writing by the Indemnifying Party; and
(b) any damages or costs finally awarded against the Indemnified Parties by a court of competent jurisdiction,
which the Indemnified Party suffers as a result of any claim made by a third party that:
(c) Customer’s use of any Product (excluding any Third Party Materials), where Hyprfire is the Indemnifying Party; or
Hyprfire’s use of the Customer Materials, where Customer is the Indemnifying Party,
(d) infringe the Intellectual Property Rights of a third party in Australia (an IPR Claim).
11.2 Potential Claim
When Hyprfire becomes aware of any actual or potential IPR Claim for which it may be the Indemnifying Party, Hyprfire may, at its sole discretion:
(a) modify or replace any part of the relevant Product;
(b) obtain rights for Customer to continue to use the relevant Product; or
(c) terminate this Agreement.
The Customer must promptly stop using Hyprfire Materials if Hyprfire directs Customer to do so.
11.3 Claims procedure 
The indemnity in clause 11.1 is conditional on the Indemnified Party: 
(a) having complied with and continuing to comply with this Agreement; 
(b) notifying the Indemnifying Party promptly of any actual or threatened IPR Claim; 
(c) giving the Indemnifying Party control of the defence and settlement of the IPR Claim; 
(d) complying with all of the Indemnifying Party’s reasonable requests in defending or settling the IPR Claim; 
(e) taking all reasonable steps to mitigate the amount of its loss; and 
(f) except with the Indemnifying Party’s prior written consent, not making any admission or acting in a way that may be prejudicial to any litigation or negotiation of the IPR Claim.
11.4 Exclusions
Where Hyprfire is the Indemnifying Party, the indemnity in clause 11.1 does not cover IPR Claims arising from or relating to:
(a) the combination of Hyprfire Materials with products or services not provided by Hyprfire;
(b) modification of or work performed on the relevant Product made at Customer’s direction, including work performed by Partner;
(c) Customer’s breach of this Agreement; or
(d) open-source software.
However, clause 11.2 continues to apply to any claims excluded by this clause 11.4.
 

12. Confidential information and privacy
12.1 Confidentiality
Each party agrees to protect the other party’s Confidential Information with at least:
(a) the same level of care it uses to protect its own Confidential Information; and
(b) a reasonable level of care.
12.2 Permitted disclosures
(a) Each party may disclose the other party’s Confidential Information to its personnel and Affiliates.  Hyprfire may disclose Customer’s Confidential Information to others involved in providing the Products (including, if applicable, the Partner), provided:
   (i) they need to know that Confidential Information; and
   (ii) they protect it against unauthorised disclosure in a manner no less protective than that required under this Agreement.
(b) Each party may disclose the other party’s Confidential Information in any legal proceeding or to a government entity as required by law. Where disclosure is required by law, the party must:
   (i) notify the disclosing party of the circumstances of the proposed disclosure and give the disclosing party a reasonable opportunity to legally challenge the proposed disclosure; 
   (ii) minimise the amount of information which is disclosed; or 
   (iii) request that the information only be disclosed subject to specific confidentiality terms,
to the extent permitted by law.
Hyprfire may include Customer on its public customer list and may otherwise identify Customer as its customer.
12.3 Privacy 
(a) Each party acknowledges that it will comply with the Australian Privacy Principles in the Privacy Act 1988 (Cth), to the extent they apply to that party, in the use, collection, storage or disclosure of any Personal Information collected or used for the purposes of this Agreement.
(b) Customer acknowledges the Hyprfire Privacy Policy.  Customer consents to Hyprfire’s use, collection, storage and disclosure of Personal Information in accordance with the Hyprfire Privacy Policy.
(c) Customer must provide all necessary notifications and obtain any necessary permissions, authorisations or consents in connection with Hyprfire’s use of Personal Information or Confidential Information provided by Customer as contemplated by this Agreement.
(d) If either party (Affected Party) becomes aware of any actual, suspected or threatened: (i) unauthorised access to the other party’s Personal Information; (ii) disclosure of the other party’s Personal Information; or (iii) loss of the other party’s Personal Information; that is likely to result in serious harm to one or more individuals (Data Breach), it must notify the other party without undue delay.  The Affected Party must promptly meet with the other party to discuss the process for issuing notifications and remedying the Data Breach.
12.4 SOCI
Customer acknowledges that if Hyprfire is issued with a direction, request or order under the Security of Critical Infrastructure Act 2018 (Cth) to suspend or terminate any Product or this Agreement (in whole or in part), to provide information, or to take any other action:
(a) Hyprfire may comply with such direction, request or order, despite any other provision in this Agreement; and 
any resulting failure to provide a Product in accordance with this Agreement will not constitute a breach of this Agreement.
(b) The Customer must provide any information or assistance requested by Hyprfire to enable Hyprfire to comply with any such direction, request or order. 
 

13. Product warranties
Subject to clause 16.3, the parties acknowledge and agree that:
(a) whilst the Products are designed to indicate unusual activity on Customer’s network and generate summaries and recommendations based on such indication, it cannot determine whether network activity is malicious or assess whether it could adversely impact Customer;
(b) Customer is responsible for the use, supervision, management and control of the Products, including investigating and acting on indications from the Products;
(c) whilst Hyprfire will use reasonable care in the provision of the Products, the nature of the Products means that Hyprfire is not able to guarantee and does not warrant that the operation of the Products will be error-free or uninterrupted, that they will be free of viruses or other harmful components or that it will detect all unusual activity on a network;
(d) the Products are provided on an ‘as is’ basis; and
(e) Hyprfire will rely on the accuracy and completeness of the Customer Materials and will not verify them. 
 

14. Liability 
14.1 Non-excludable provisions
(a) Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited.
(b) If a guarantee or other provision is implied or imposed by law in connection with the Agreement, and Hyprfire is permitted to do so, Hyprfire’s liability for breach of that guarantee or other provision is limited to one or more of the following at Hyprfire’s option:
   (i) in the case of goods, the replacement or repair of the goods or the supply of equivalent goods; or the payment of the costs of replacing or repairing the goods or acquiring equivalent goods; and
   (ii) in the case of services, the re-supply of the services; or the payment of the cost of having services re-supplied.
14.2 Limitation of liability
Subject to clauses 14.1 and 14.4, each party’s aggregate liability to the other party for all loss suffered or incurred arising out of or in connection with this Agreement (whether under statute, in contract, tort (including negligence), in equity, under an indemnity, or on any other basis) is limited to the greater of:
(a) $30,000; and
(b) the fees paid by Customer for the Products and the Additional Services under the Customer Order in the 12-month period preceding the event giving rise to the loss.
14.3 Excluded liabilities
Subject to clauses 14.1 and 14.4, neither party is liable for, and no measure of damages will, under any circumstances, include:
(a) indirect, consequential, special, incidental, punitive or exemplary damages; 
(b) loss of profits, revenue, sales, business, anticipated savings, goodwill or reputation; or
(c) loss, corruption or interception of data, loss of use or business interruption,
whether in contract, tort (including negligence), in equity, under statute, under an indemnity, or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
14.4 Uncapped losses
Nothing in this Agreement excludes or limits either party’s liability for:
(a) death or personal injury arising from its breach of this Agreement;
(b) its fraud or fraudulent misrepresentation;
(c) its infringement of the other party’s Intellectual Property Rights; or
(d) anything for which liability cannot be excluded or limited under applicable law.
 

15. Termination
15.1 Termination for cause
Either party may terminate this Agreement immediately by notice to the other party if the other party:
(a) is in material breach of the Agreement or the Customer Order, and the breach is irremediable;
(b) is in material breach of the Agreement or the Customer Order, and fails to cure that breach within 30 days of being notified of the breach; or
(c) is unable to pay its debts as and when they fall due or becomes insolvent.
15.2 Suspension 
Hyprfire may suspend Customer’s use of any Products if, in Hyprfire’s reasonable opinion:
 (a) Customer has failed to pay any Fees owed under the Customer Order; or
(b) there is a significant threat to the functionality, security, integrity or availability of any Product.
When reasonably practicable and lawfully permitted, Hyprfire will provide Customer with advance notice of any such suspension. Any suspension by Hyprfire does not exclude Customer from its obligation to make payments under the Customer Order.
15.3 Effect of termination
On termination or expiry of this Agreement:
(a) Customer will promptly pay any unpaid fees due and owing under the Customer Order; 
(b) at the date of termination or expiry:
   (i) Customer will no longer have any rights to use the Products; 
   (ii) Hyprfire may disable access and use of the Products with immediate effect; and
   (iii) Customer must immediately cease using the Products and delete the Products from its systems; and
(c) each party must return to the other party all material in their custody and possession which were provided by the other party, including all Confidential Information of the other party.
Termination of this Agreement will not affect the rights and obligations of either party that have accrued prior to termination and will be without prejudice to any other rights or remedies a party may have with respect to any breach.
 

16. General
16.1 Disputes
The parties agree to negotiate in good faith to resolve the dispute. Any dispute which cannot be resolved within 5 business days must be referred to the Managing Director, in the case of Hyprfire, and the Chief Executive Officer, or equivalent, of Customer. All aspects of the negotiation must be kept confidential, and all communications between the parties during the negotiation are made on a without prejudice basis. If the parties are unable to resolve the dispute within a further 20 business days, then either party may have recourse to litigation or other dispute resolution processes. This clause 16.1 does not apply to any actions for urgent interim relief.
16.2 Force Majeure
Neither party will be liable for any failure or delay in performance of its obligations to the extent caused by a Force Majeure Event.
16.3 Entire Agreement
(a) Nothing in this Agreement limits any liability either party may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this agreement, where such liability cannot be excluded.
(b) Subject to clause 16.3(a), this Agreement supersedes all previous agreements, understandings, negotiations, representations and warranties about its subject matter and embodies the entire agreement between the parties about its subject matter.  
(c) To the maximum extent permitted by law: (i) all express or implied guarantees, warranties, representations, or other terms and conditions relating to this Agreement or its subject matter, not contained in this Agreement, are excluded from this agreement; and (ii) the parties must not rely on any representation made by the other party or any other person, except as expressly set out in this Agreement.
16.4 Subcontractors
Hyprfire may use subcontractors to perform the obligations of this Agreement and for the other purposes set out in this Agreement. Hyprfire remains responsible for the performance of its obligations as set out in this Agreement.
16.5 Assignment
Hyprfire may assign, novate or transfer its rights or obligations under this Agreement without Customer’s prior written consent. Customer may only assign, novate or transfer its rights and obligations with Hyprfire’s prior written consent (not to be unreasonably withheld).
16.6 Survival
Any clause that is intended to survive termination of this Agreement will do so including, but not limited to clauses 1 (Definitions), 2 (Interpretation), 8 (Free Trials), 10.4 (Feedback and Improvement), 12 (Confidential Information and Privacy), 14 (Liability), 15 (Termination) and 16 (General).
16. 7 Relationship
Hyprfire is an independent contractor. This Agreement does not form any partnership, joint venture, fiduciary, employment, agency or other relationship between the parties. Neither party has the power to bind the other.
16.8 Severability
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of the Agreement or term is not affected.
16.9 Notice
Each party will provide notices under this Agreement by sending an email to the other party’s Representative.  Notice will be treated as received when the email is sent.
16.10 Governing Law
This Agreement and any dispute arising from this Agreement, whether contractual or non-contractual, will be exclusively governed by the laws of Western Australia. Each party submits to the non-exclusive jurisdiction of the courts sitting in Western Australia, including Federal Courts sitting in that State.
16.11 Changes to this Agreement
Subject to clause 6(e), this Agreement may only be varied by written agreement between the parties.  
 

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