NORTHBRIDGESECURE END USER LICENSE AGREEMENT
TO: INTENDING SUBSCRIBER
BY CLICKING ‘I AGREE’ OR DOWNLOADING, OR OTHERWISE USING THE SOFTWARE OR SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, IMMEDIATELY STOP USING THE SERVICES AND / OR SOFTWARE, RETURN, DELETE OR DESTROY ANY AND ALL COPIES OF THE SOFTWARE SUBSCRIBER MAY HAVE.
NORTHBRIDGE SECURE may modify, but subject to clause 22, the terms of this Agreement from time to time and shall post the most up to date version of this Agreement at http://www.northbridgesecure.com/EULA/
It is Subscriber’s responsibility to check and stay informed of any changes. Subscriber’s continued use of the Services following modification to the terms of this Agreement or Subscriber’s failure to object to such modification in accordance with clause 22 shall constitute Subscriber’s consent to be bound by the modified Agreement.
“Account” means the entity located upon the Infrastructure, created and maintained by Northbridge Secure and/or authorised partner and/or customer, in order to provide access to the Services.
“Device” means Windows® or non- Windows servers, workstations, computers or any mobile devices upon which or through which the Services are used and / or installed.
“NORTHBRIDGE SECURE” means NORTHBRIDGE SECURE Trading Pty Ltd ABN 82 612260 045, being a company incorporated in the State of New South Wales Commonwealth of Australia , an Australian corporation, a limited company under the laws of Australia.
“NORTHBRIDGE SECURE Agents” means the affiliated entities within the NORTHBRIDGE SECURE group of companies, their employees, third party suppliers and licensors.
“Infrastructure” means the technical systems, hardware and all connected devices of NORTHBRIDGE SECURE and/or its third party suppliers and/or authorised partner and/or customer.
“Order” means an order submitted by Subscriber pursuant to this End User Agreement to purchase Services as between Subscriber and NORTHBRIDGE SECURE or Subscriber and / or authorised reseller of NORTHBRIDGE SECURE.
“Services” means the various services and components thereof, the Software, any documentation both on and offline, as well as any modifications, derivatives, updates or upgrades as may be offered by NORTHBRIDGE SECURE from time to time, and which are chosen by and subscribed to by the Subscriber via a Subscription. A Subscriber may choose to subscribe to one or more Services under his or her Subscription as may be offered by NORTHBRIDGE SECURE and/or by its authorised partners from time to time.
“Software” means any downloadable software which is provided by NORTHBRIDGE SECURE solely for the purpose of accessing the Services.
“Subscriber” means an individual or entity (including that entities’ parent or affiliated companies) to which Services are provided pursuant to an Order by and as agreed to by NORTHBRIDGE SECURE and/or its authorised resellers.
“Subscription” means the non-exclusive, non-transferable right to use the Services, in accordance with an Order submitted by Subscriber, subject to the terms of this Agreement and the full and timely payment of the Subscription Fees.
“Subscription Fees” means the fees payable in respect of an Order.
“Subscription Period” means an initial period of 12 months from the date of Subscription and thereafter ongoing successive periods of 12 months each until the Subscription is terminated in accordance with clause 2.
“Virus or Malware” means programming or software code designed to damage, destroy or otherwise interfere with programmes, software, and/or devices, not limited to: Trojans; any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); worms, and / or corrupted files.
Subject to the terms and conditions of this Agreement, Subscriber may use the Services only in accordance with any written communication by NORTHBRIDGE SECURE to Subscriber, including any then-current product documentation as posted on www.northbridgesecure.com from time to time.
The Subscription begins at the time the Subscriber’s Subscription is activated by NORTHBRIDGE SECURE and thereafter continues in effect until the date of termination as set forth hereinafter. A Subscription may terminate in whole or in part, due to:
(i) The operation of clause 22, or (ii) a termination of the agreement by NORTHBRIDGE SECURE following a breach of any of terms of this Agreement by Subscriber, including non-payment of any Fees when due; or (iii) a termination by either NORTHBRIDGE SECURE or Subscriber by written notice one to the other submitted only during the last 30 days of a Subscription Period. Subscription Fees are non-refundable if Subscriber cancels or the Subscription is terminated for cause. As of the effective date of cancellation or termination and the expiration of a period of 14 days thereafter, Subscriber shall no longer be able and shall have no further right to access or use the particular Services which have been cancelled or terminated. All enquiries regarding invoicing need to be logged as a support ticket or sent via email to email@example.com.
3. GRANT OF RIGHT OF USE.
The Software is licensed and not sold. During a Subscription Period and subject to the due payment by Subscriber and receipt by NORTHBRIDGE SECURE of all due and payable Subscription Fees, NORTHBRIDGE SECURE grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access the NORTHBRIDGE SECURE Services and use the Software pursuant to the terms of this Agreement. Subscriber may install multiple copies of the Software on different Devices for the sole purpose of accessing the Northbridge Secure Service. This Agreement covers any updates, new releases or enhancement(s) of the Services and / or Software, which NORTHBRIDGE SECURE may make available to Subscriber from time to time. The License hereby granted is a Right of Use available for a single named user, and is not available for concurrent use. A named user may access the service on an unlimited number of devices with the restriction of only a single device at any given time.
4. ACCOUNT SECURITY.
Subscriber is solely responsible for access to, content in or sharing and use of its Account. NORTHBRIDGE SECURE shall not be liable for any loss or damage arising from any access to, or sharing and use of Subscriber’s deployment of the Services.
5. SUPPORT SERVICES.
During a Subscription Period, NORTHBRIDGE SECURE shall provide, or shall have its partners provide, Subscriber with the support described in this clause (‘Support’) on a local office hour’s basis as defined in the generic Terms and Conditions. In NORTHBRIDGE SECURE’s sole determination, Support shall consist of: (i) telephone or electronic support to Subscriber in order to help Subscriber locate and, on Subscriber own, correct problems with the Services and / or (ii) supplying extensions, enhancements and other changes that NORTHBRIDGE SECURE may make to the Services from time to time and which is made available, without additional charge, to other Subscribers of the Services.
6. CONSENT TO USE DATA.
NORTHBRIDGE SECURE and the NORTHBRIDGE SECURE Agents collect, process and use Subscriber’s data for the implementation and processing of the contractual relationship with Subscriber, in particular for successfully enabling the Services to Subscriber. Beyond that, Subscriber’s data will not be used without Subscriber’s prior consent, in particular and without limiting the generality of the foregoing, shall not be used for advertising purposes.
7. DATA PROTECTION.
Each party shall comply with its respective obligations under applicable data protection laws (‘DPL’). Neither party shall do any act that puts the other party in breach of its obligations as per this clause, nor shall anything in this Agreement be deemed to prevent any party from taking any action it reasonably deems necessary to comply with DPL. Subscriber agrees that during the course of this Agreement: (i) in respect of data Subscriber collects, accesses or otherwise uses, Subscriber alone shall determine the purposes for which and the manner in which personal data is, or will be, processed; and (ii) Subscriber is the data controller in respect of all personal data Subscriber may process.
Except as otherwise expressly provided under this Agreement, Subscriber shall have no right, and Subscriber shall not permit any third party, to: (i) harm, disrupt or otherwise engage in activity that diminishes the NORTHBRIDGE SECURE brand, Services, or Infrastructure; (ii) transfer, assign or sublicense the limited rights granted to Subscriber in this Agreement to any other person, or entity, or use the Services other than as authorized; any such attempted transfer, assignment, sublicense or unauthorized use shall be void; (iv) make error corrections to or otherwise modify or adapt the Services or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or of any files contained or generated using the Services by any means whatsoever or otherwise reduce the Services to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction; (v) use or permit the Services to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of NORTHBRIDGE SECURE ; or (vi) attempt to alter, circumvent or provide the method or means to circumvent any disabling mechanism in the Services; or (vii) use the Services in any manner not expressly authorized herein; or (viii) alter, remove or fail to reproduce any proprietary notices from the Services; or (ix) misrepresent any person or entities’ identity, impersonate any person or attempt to gain access to any Account, the Infrastructure or the networks or property of any third person, without authorization.
9. INTELLECTUAL PROPERTY RIGHTS.
The Services are protected by world-wide copyright, trademark, patent and other intellectual property laws and treaties and belong to NORTHBRIDGE SECURE, its licensors and any applicable NORTHBRIDGE SECURE Agent. Subscriber acknowledges that (i) rights in the Services are licensed (not sold) to Subscriber, and (ii) that Subscriber shall have no rights or title in, or to, the Services other than the right to use them in accordance with the terms of this Agreement and (iii) Open Source and / or third-party software may be incorporated into the Services. NORTHBRIDGE SECURE, its licensors and any applicable third parties, own all title, copyright, and other intellectual property rights in and to the Services. The Services, in all formats existing, are a trade secret of and proprietary to NORTHBRIDGE SECURE , its suppliers and / or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. Subscriber shall not disclose the confidential aspects of the Services to third parties.
ANY AND ALL CONTENT ON THE WEBSITES, SOFTWARE AND COMPUTER PROGRAMS ASSOCIATED WITH THE SERVICES ARE PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE INFORMATION OR CONTENT ON SUCH WEBSITES, SOFTWARE AND COMPUTER PROGRAMS MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM NORTHBRIDGE SECURE. SUBSCRIBER AND ANY OTHER VISITOR OR USER ARE NOT PERMITTED TO MODIFY, DISTRIBUTE, PUBLISH, TRANSMIT OR CREATE DERIVATIVE WORKS OF ANY MATERIAL FOUND ON SUCH WEBSITES, SOFTWARE AND COMPUTER PROGRAMS FOR ANY PUBLIC OR COMMERCIAL PURPOSE.
10. THIRD PARTY COMPONENTS; OPEN SOURCE.
Part of the Services may incorporate third party proprietary software and / or services. If and to the extent such third party services or software are an integral part of the Services, such third parties shall be deemed NORTHBRIDGE SECURE Agents and the terms of this Agreement shall apply to such NORTHBRIDGE SECURE Agents. If and to the extent Subscriber contracts independently with independent third parties, the terms of such third party contract shall apply to the relationship between Subscriber and such independent third parties and NORTHBRIDGE SECURE shall have no liability in respect thereof. In addition, part of the Services may incorporate and consist of third party open source software (‘Open Source’), which Subscriber may use under the terms and conditions of the specific license under which the open source software is distributed. Subscriber agrees that Subscriber will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s). Any Open Source provided with or contained in the Services is provided ‘AS IS’ and without any warranty of any kind.
11. DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED TO SUBSCRIBER ON AN ‘AS IS’ AND ‘AS IS AVAILABLE’ BASIS.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. FURTHER TO THE EXTENT PERMITTED BY APPLICABLE LAW, NORTHBRIDGE SECURE DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICESWILL BE CORRECTED. FURTHERMORE, NORTHBRIDGE SECURE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES PROVIDED IN RESPECT OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, NORTHBRIDGE SECURE LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE EXTENT OF THIS LIMITED WARRANTY AND THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY NORTHBRIDGE SECURE IN ITS SOLE DISCRETION.
12. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NORTHBRIDGE SECURE OR THE NORTHBRIDGE SECURE AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, UNDER ANY THEORY OF LAW OR FAULT OF NORTHBRIDGE SECURE OR ANY OF THE NORTHBRIDGE SECURE AGENTS, AND EVEN IF NORTHBRIDGE SECURE OR ANY OF THE NORTHBRIDGE SECURE AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THIS LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS. NORTHBRIDGE SECURE EXLCUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY SERVICES. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY THAT NORTHBRIDGE SECURE SHALL INCUR HEREUNDER SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY SUBSCRIBER FOR THE RESPECTIVE SERVICE FOR THE TWELVE MONTH PERIOD PRIOR TO THE DATE WHEN THE APPLICABLE CLAIM AROSE.
13. CONTRACTUAL LIABILITY.
If the Subscriber’s organization is a U.S. government body or is related to a U.S. government body this clause shall not apply. Subscriber agrees to be contractually liable to NORTHBRIDGE SECURE and NORTHBRIDGE SECURE Agents to defend and hold, harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorneys’ fees, expert fees and out-of-pocket expenses) in connection with(i) Subscriber’s use of the Services, (ii) Subscriber’s violation of the terms of this Agreement, (iii) Subscriber’s violation of any third-party rights, including any intellectual property rights, (iv) Subscriber’s misuse or fraudulent use of credit and debit cards, (v) any claims that the Services or any party thereof were exported or otherwise shipped or transported by Subscriber in violation of applicable laws, rules and regulations, or (vi) any claim of misuse of the Services, including but not limited to any claim that Subscriber is storing illegal files or data in its Account.
14. EFFECT OF TERMINATION.
Without prejudice to any other rights, NORTHBRIDGE SECURE may suspend or terminate, in part or in whole, without notice, Subscriber’s use of the Services and this Agreement if Subscriber does not abide by its terms, in which case Subscriber must cease all use of the Services, destroy all copies (including any components) of the Services, or, at NORTHBRIDGE SECURE’s request, return such copies to NORTHBRIDGE SECURE. All Clauses shall survive any termination of this Agreement.
15. ENTIRE AGREEMENT.
16. GOVERNING LAW.
(a) If Subscriber purchased the Services in or are habitually resident within the USA, South America or Canada, this Agreement shall be governed by, subject to and construed in accordance with the laws of the State of New York, excluding its conflict of law provisions and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in New York and Federal Courts or (b) If Subscriber purchased the Services in or is habitually resident elsewhere, this Agreement shall be governed by, and construed in accordance with, the laws of New South Wales in the Commonwealth of Australia, and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in Australia, and the parties waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
NORTHBRIDGE SECURE may refer to the name of Subscriber as a customer of NORTHBRIDGE SECURE, both internally and in externally published media subject to Subscriber’s prior written consent.
18. EXPORT CONTROLS.
Subscriber agrees that the Services will not be used, shipped, transferred or exported into any country or to anyone: (i) which the EU or UN has embargoed goods; (ii) where the national legislation of the relevant Member State of the European Union (EU) has embargoed goods; (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Services, Subscriber represent that Subscriber is not located in, under the control of, or a national or resident of any such country or on any such list and Subscriber takes full and sole responsibility for such use.
Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the Subscriber. Accordingly, Subscriber shall pay or (if paid by NORTHBRIDGE SECURE ) reimburse NORTHBRIDGE SECURE for all such taxes based on this License or any fees payable hereunder (but not any taxes based upon NORTHBRIDGE SECURE ‘s revenues or income), together with any interest on such taxes if not due to NORTHBRIDGE SECURE ‘s delay.
20. U.S. GOVERNMENT RIGHTS.
If Subscriber is obtaining Software on behalf of any part of the United States Government, the Software and any documentation shall be deemed “Commercial Off the Shelf Software” and “Commercial Computer Software Documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR 12.212 and 52.227-19, as applicable. Any use, modification, revision, release, performance, display or disclosure of the Software shall be governed solely by the terms of this Agreement.
21. EQUITABLE RELIEF.
If the Subscriber’s organization is a U.S. government body or is related to a U.S. government body this clause shall not apply. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver. This Agreement: (i) may not be amended by Subscriber, but NORTHBRIDGE SECURE may amend this Agreement from time to time and shall post any amended Agreement on its website at www.northbridgesecure.com, PROVIDED HOWEVER Subscriber shall have the right within 14 days of such posting by notice given to NORTHBRIDGE SECURE on legal@NorthbridgeSecure.com to object to the terms of such amendment PROVIDED FURTHER that if an objection is so made then NORTHBRIDGE SECURE shall have the right forthwith to terminate this agreement, and if the agreement is not so terminated, it shall continue in force in the form so amended by NORTHBRIDGE SECURE, (ii) constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all written and oral prior agreements, negotiations and discussions between the parties relating to it, and (iii) is for the sole benefit of NORTHBRIDGE SECURE and Subscriber and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. If any provision of this Agreement shall be held to be illegal, void or unenforceable by any court of competent jurisdiction or arbitral tribunal, such provision shall be of no force and effect and shall not impair the enforceability of any other provision of this Agreement and the parties agree that the relevant provision shall be deemed replaced by such provision which is binding and enforceable and which differs as little as possible from the non-binding and/or non-enforceable provision, taking into effect the object and purpose of this Agreement. The remedies of the parties under this Agreement are cumulative and will not exclude any other remedies to which the respective party may be lawfully entitled. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email to legal@NorthbridgeSecure.com (with evidence of effective transmission). All notices must be addressed to NORTHBRIDGE SECURE Legal Department, 50 Broughton Rd Artarmon 2064, New South Wales, Australia. Subscriber may not assign, pledge or otherwise transfer this agreement, nor any rights or obligations hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect on interpretation.