1.1 In this Agreement, unless the context otherwise requires, the following definitions apply:
Agreement means the attached letter, these Terms and Conditions and any amendment to the same agreed to in writing by the Parties.
Confidential Information means the confidential subject matter of financial information and other commercially valuable or private information in whatever form, unpatented inventions, trade secrets, formulae, know-how, drawings, works, improvements, concepts, ideas, designs, formulae, samples and other materials of whatever description or form, whether written or oral which a Party claims is confidential to itself, but excludes information which:
(a) is already legally in the public domain, or after the date of this Agreement becomes part of the public domain otherwise than as a result of unauthorised disclosure by the recipient Party;
(b) is or which becomes available to the recipient Party from a third party lawfully in possession of such information and who has the lawful power to disclose such information to the recipient Party;
(c) is rightfully known by the recipient Party (as proven by its written record) prior to the date of disclosure to it pursuant to the terms of this Agreement; or
(d) which is independently developed by an employee of the recipient Party who has no knowledge of the disclosure of it pursuant to the terms of this Agreement.
Hyprfire means Hyprfire Pty Ltd.
Improvement means modification, enhancement, adaptation or improvement of the Product.
Intellectual Property or IP means statutory and other rights in respect of inventions, patents, registered and unregistered designs, registered and unregistered trademarks or applications thereof, circuit layouts, copyright, scientific discoveries, know-how, and all other intellectual property rights as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation, 1967.
Organisation means the organisation that is the Party to this Agreement and is deploying the Product on their software systems and/or network.
Performance Information means non-identifiable metadata and other performance information generated from the Product.
Product means the digital software security product known as Firebug, including without limitation all software and documentation.
Term means the period specified in the attached letter, unless terminated earlier in accordance with clause 7 or extended by mutual written agreement of the Parties.
In this Agreement, unless the contrary intent appears:
(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.
3.1 Subject to the terms of this Agreement, Hyprfire hereby grants the Organisation a non-exclusive, non-transferable and revocable licence to use the Product, during the Term, on the Organisation’s software systems and/or network locations agreed with Hyprfire in the deployment of Firebug.
3.2 The Organisation acknowledges and agrees that Hyprfire owns all right, title and interest in and to the Product and any Improvements, and in any and all Intellectual Property Rights therein.
3.3 The Organisation must promptly disclose to Hyprfire any suggestions for change and/or improvement to the Product and assign to Hyprfire (if required) any related rights thereto and to assist Hyprfire (as reasonably requested by Hyprfire and at Hyprfire’s expense) in obtaining Intellectual Property protection relating to such suggestions or improvements.
3.4 Except for the licence in clause 3.1, nothing in this Agreement grants to the Organisation any Intellectual Property or other rights or interest in and to the Product, which remain the sole and exclusive property of Hyprfire.
4.1 Hyprfire will consult and work with the Organisation’s authorised staff to deploy the Product in a manner to be agreed.
4.2 The Organisation agrees:
(a) to provide reasonable access to the Organisation’s premises, software systems, network and personnel to enable Hyprfire staff to deploy the Product, subject to Hyprfire complying with the Organisation’s reasonable requirements of access;
(b) that the Product is an intrusion detection system designed to provide indications to the Organisation of abnormal network behaviours, and that the Organisation is responsible for the use, supervision, management and control of the Product, including investigating and acting on indications from the Product;
(c) to ensure that the Product are protected at all times from misuse, damage, destruction or any form of unauthorised use; and
(d) that Hyprfire may collect Performance Information only for the purposes of ongoing development and improvement of the Product.
4.3 The parties acknowledge and agree that:
(a) the Product is designed to examine network metadata and does not examine identifiable network data (e.g. via deep packet inspection).
(b) the Product may indicate unusual activity on the Organisation’s network that requires further investigation by the Organisation in order to assess whether network activity is malicious or not. Hyprfire will only investigate such network activity with the consent and at the direction of the Organisation and on terms agreed by the parties.
4.4 The Organisation must not:
(a) copy, alter, modify or reproduce the Product except to the extent otherwise authorised by this Agreement;
(b) deploy the Product to additional network locations other than those agreed with Hyprfire; or
(c) reverse engineer, disassemble or decompile or directly or indirectly allow or cause a third party to reverse engineer, disassemble or decompile the whole or any part of the Product provided to the Organisation under this Agreement.
4.5 The Parties must each appoint a representative (as specified in the attached letter) to act as the principal liaisons for the purposes of this Agreement.
5. CONFIDENTIAL INFORMATION AND PRIVACY
5.1 Each Party hereby undertakes to treat all Confidential Information in confidence, and will not disclose such Confidential Information to any third party without the prior written consent of the disclosing Party or unless required by law. Where disclosure is required by law, the Party must notify the disclosing party of the circumstances of the proposed disclosure and give the disclosing party a reasonable opportunity to (as appropriate) – legally challenge the proposed disclosure; minimise the amount of information which is disclosed; or request that the information only be disclosed subject to specific confidentiality terms.
5.2 The Organisation must not disclose Hyprfire’s Confidential Information, including without limitation:
(a) the Product;
(b) Hyprfire’s pricing, customers, or development or marketing plans in connection with the Product; and
(c) verbal or written communications from Hyprfire (including its employees, agents or contractors) in connection with the Product,
to third parties, and must only disclose Hyprfire’s Confidential Information to its employees and agents to the extent necessary to use the Product pursuant to this Agreement.
5.3 Hyprfire may require that any officer, employee or agent of the Organisation to execute such documentation as is required to ensure confidentiality of its Confidential Information outlined in clause 5.2 before being provided with the said Hyprfire Confidential Information.
5.4 Each Party acknowledges that it will comply with the Australian Privacy Principles in the Privacy Act 1988 (Cth) in the use, collection, storage or disclosure of any personal information collected or used for the purposes of this Agreement.
6. NO WARRANTIES AND LIABILITY
6.1 The Organisation acknowledges and agrees that:
(a) Hyprfire gives no warranty, guarantee or representations regarding the Product, express or implied, and expressly disclaims all warranties or guarantees, including but not limited to the implied warranties of merchantability, reliability, fitness for a particular purpose and non-infringement;
(b) Hyprfire gives no warranty, guarantee or representations in respect of the Product’s ability to detect malicious network activity;
(c) the Product is provided to the Organisation “as is” and the Organisation is responsible to make its own assessment of and use of the Product and to use the same at its own risk;
6.2 Each Party warrants that it has full legal capacity, power and corporate authority to enter into this Agreement and to carry out the transactions that this Agreement contemplates.
6.3.1 Exclusion of liability for consequential and indirect Loss. To the extent permitted by law, Hyprfire shall in no event be liable to the Organisation or any third party, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, and whatever the cause, for:
(a) any loss or damage arising from the installation and/or use of the Product;
(b) any action taken against the Organisation as a result of the Organisation’s use of the Product; and
(c) any indirect Loss or consequential Loss, even if the Organisation has advised Hyprfire of their possibility, including loss of business profits, revenue, opportunity, goodwill or anticipatory profits or business interruption or loss of data, incurred by the Organisation in connection with or as a result of entering into this Agreement or its performance.
6.3.2 Liability Cap: To the extent permitted by law, the liability of Hyprfire (including its officers, employees and agents (“Hyprfire”) to the Organisation for any claim, loss or damage in relation to this Agreement whether in contract, tort (including negligence and breach of statutory duty) that is directly attributable to Hyprfire is limited to the lower amount of (a) the amount received from the Organisation by Hyprfire and (b) $50,000.
6.4 Each Party must during the Term and any extension of the Term effect and maintain adequate insurance to cover potential liability arising as a result of the performance of this Agreement, and if requested provide the other Party with applicable certificates of currency of such insurance upon request.
7.1 The Parties may agree in writing to terminate this Agreement at any time.
7.2 After expiry of the Term, the Agreement will continue for successive monthly terms and either Party may terminate this Agreement by giving 7 days written notice to the other Party.
7.3 Without limiting the generality of any other clause in this Agreement a Party may terminate this Agreement immediately by notice in writing if:
(a) the other Party breaches any clause of this Agreement and such breach is not remedied within 30 days of written notice by the first Party specifying the details of the breach;
(b) subject to the expiry of any statutory stay period under the Corporations Act 2001 (Cth) or related legislation the other Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
(c) the other Party ceases or threatens to cease conducting its business in the normal manner.
7.4 A Party’s termination of this Agreement:
(a) will not affect the rights and obligations of the Party accrued prior to the effective date of termination; and
(b) will be without prejudice to any other rights or remedies a Party may have with respect to any breach.
7.5 The Organisation acknowledges that any breach of the Organisation’s obligations under this Agreement with respect to the proprietary rights of Hyprfire to the Product will cause Hyprfire irreparable injury for which there are inadequate remedies at law, and therefore Hyprfire will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
7.6 Upon termination or expiry of the Agreement, each Party will return to the other Party all property in their custody and possession which belongs to the other Party including Confidential Information. For the avoidance of doubt, the Organisation must upon termination or expiry of this Agreement deliver to Hyprfire promptly the Product and any other materials developed for the purposes of this Agreement, and ensure the same is erased or destroyed from the Organisation’s network, software systems or any other medium in the possession or under the power or control of the Organisation.
7.7 Clauses 3, 4.2, 4.4, 5, 6, 7.5, 7.6, 7.7, 8.7 and 8.9 shall survive expiry or termination of this Agreement.
8.1 In the event of a dispute under this Agreement the Parties agree to negotiate in good faith to resolve the dispute. Any dispute which cannot be settled within 30 days must be referred to the Director, Research and Development, in the case of Hyprfire, and the Chief Executive Officer, or equivalent, of the Organisation for resolution within a further 30 days before any other action may be taken.
8.2 This Agreement constitutes the entire agreement between the Parties in relation to the subject matter of this Agreement and any prior arrangements, agreements, representations or undertakings are superseded.
8.3 Each Party will be responsible for its own costs incurred in the preparation of this Agreement.
8.4 The rights and obligations of the Organisation under this Agreement will not be assignable without the prior written permission of Hyprfire. Hyprfire may assign or novate the rights and obligations and the Organisation agrees to execute such documents required to effect this.
8.5 Each Party to this Agreement will enter into and execute all documents and deeds and do all acts as may be reasonably required by the other Party to effectively carry out the terms and intentions of this Agreement.
8.6 If any provision of this Agreement is held unenforceable or void, the remaining provisions will be enforced in accordance with their terms.
8.7 Nothing in this Agreement will be construed so as to make any Party an employee, agent or partner of another Party, or create any relationship of partnership, agency, or trust whatsoever.
8.8 Notices under this Agreement shall be to the address to the Director, Research and Development, in the case of Hyprfire, and the Chief Executive Officer (or equivalent), of the Organisation, and shall be deemed given:
(a) in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee of the receiving Party;
(b) in the case of posting, 5 days (10 days, if outside Australia) after dispatch;
(c) in the case of email, on the next day after notification of successful transmission.
8.9 This Agreement shall be construed and governed in accordance with the laws of Western Australia and subject to the non-exclusive jurisdiction of the courts of Western Australia.
8.10 This Agreement may be varied by written agreement of the Parties.