PRISMA END USER LICENSE AGREEMENT
IMPORTANT LEGAL NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE YOU START USING THE SOFTWARE. BY CLICKING THE “LOGIN” AND/OR ACCEPT BUTTON YOU CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. SUCH ACTION IS A SYMBOL OF YOUR SIGNATURE AND YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT LOGIN AND CANCEL THE INSTALLATION OF THE SOFTWARE. AFTER CLICKING THE ACCEPT BUTTON IN THE LICENSE AGREEMENT WINDOW OR LOGIN, YOU HAVE THE RIGHT TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement is entered into as of the earliest of the date that You accept the terms and conditions herein or the date set forth on an Order.
1. Definitions
1.1. Software means the object code version of Prisma proprietary computer programs, which may include any software accessed as a service module(s) by You for use (collectively Prisma) if described in the relevant Order, including any hosted product, any Documentation and Updates.
1.2. Rightholder (owner of all rights, whether exclusive or otherwise to the Software) means Prisma Unify Pty Ltd, a company incorporated according to the laws of the State of Victoria, Australia.
1.3. Computer(s) means hardware(s), including personal computers, laptops, workstations, personal digital assistants, ‘smart phones’, hand-held devices, tablets or other electronic devices for which the Software was designed where the Software will be installed and/or used.
1.4. De-identified means data that has been processed to remove, hide, encrypt, anonymise or aggregate identifying information such that one could not, using reasonable efforts, link such information back to You.
1.5. De-identified Data means all De-identified information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to You.
1.6. Documentation means the written and/or electronic release notes, updates, implementation guides, or other published technical documentation about the specific Software that is provided by the Rightholder to You, together with the delivery of the Software.
1.7. End User (You/Your) means individual(s) installing or using the Software on his or her own behalf or who is legally using a copy of the Software; or, if the Software is being downloaded or installed on behalf of an organization, such as an employer, “You” further means the organisation for which the Software is downloaded or installed and it is represented hereby that such organisation has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
1.8. End User Data means data entered or uploaded by You to the Software.
1.9. Hosted Software means the online platform and websites which you can access and your account that are hosted and maintained by the Software.
1.10. Incident means when the Software does not seem to materially perform in accordance with the specifications specified in the relevant Documentation.
1.11. License Term means the term of the license granted for specific Software, as identified in the relevant Order.
1.12. Maintenance means Rightholder will provide, as specified in the relevant Order all Software Updates at no additional fee as soon as they are made available during the License Term.
1.13. Order means any purchase order or ordering document between You and Partner or between You and Rightholder (if purchasing directly) that identifies the products and/or services licensed or sold and any applicable licensing parameters (e.g., the number of licenses).
1.14. Partner(s) means organizations or individual(s), who distributes the Software based on an agreement and license with the Rightholder.
1.15. Support Services means service(s) provided by the Rightholder and/or Partner in conjunction with the Software if purchased by you as specified in the relevant Order during the License Term.
1.16. Update(s) means all upgrades, revisions, patches, enhancements, fixes, modifications, copies, additions or maintenance packs etc.
1.17. User Manual means user manual, administrator guide, reference book and related explanatory or other materials.
2. Grant of License
2.1. Software License. Subject to the terms and conditions of this Agreement, during the applicable License Term, the Rightholder hereby grants to You (i) a non-exclusive, non-transferable and non-sublicensable license for You to use the Software solely for Your internal use with Your ordinary business operations and in accordance with the applicable Documentation, and (ii) the right to maintain a reasonable number of copies of the Software on your systems for backup and recovery purposes. You may authorize Your employees, contractors, and other individual users to access and use the Software on Your behalf and for Your internal business purposes in compliance with this Agreement, provided You are responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by You. You agree that Your purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by the Rightholder with respect to future functionality or features.
3. Payment; Additional Licenses; Reporting.
3.1. You shall pay the fees for the Software as set forth in the applicable Order. If You are purchasing through a Partner, payment terms will be determined by You and the Partner. If You are purchasing directly from the Rightholder, all fees shall be paid in AUD dollars and are due within thirty (30) days of the invoice. You shall pay all applicable fees and taxes. If the actual number of Computers (as applicable) exceed the number of licenses purchased by You in the applicable Order, then You shall (a) immediately cease such excess usage or (b) purchase additional licenses to cover the excess usage. Fees for excess usage shall be based on the Rightholders’ then-current price list or specified in the Order. The Rightsholder’s Software platform enables the Rightholder to access the Computer count for the Software.
4. Updates, Maintenance & Support
4.1. The Rightholder may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that the Rightholder has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Computer settings, when your Computer is connected to the Internet either:
a) the Prisma Software will automatically download and install all available Updates; or
b) you may receive notice of or be prompted to download and install available Updates.
In order to be able to fully utilise the Software, you must promptly download and install all Updates. You acknowledge that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement.
4.2. Maintenance. During the License Term, the Rightholder (or Partner, if applicable) shall make available to You all Updates to the extent generally released to other users that purchased the Software. Such maintenance services shall apply only to the current shipping release of the Software and, for security fixes only to the immediately prior release.
4.3. The Rightholder or Partner, if applicable, shall use commercially reasonable efforts to provide Maintenance services to You, as a part of Your Software License(s). You may report an Incident to the Rightholder or Partner, if applicable, via the Software or support telephone helpline, and thereafter, the parties may cooperate to address the Incident via email, telephone which will all be transposed into the Software. The Rightholder or Partner, if applicable, shall provide You with a trouble ticket number that You can use to track the status of the Incident via the Software. The Rightholder or Partner, if applicable, may close the trouble ticket without further responsibility if You fail to respond to a request for additional information or to confirm that the trouble ticket is resolved by way of request or receipt of a patch or workaround (as applicable).
4.4. Support: If You have purchased support services as set forth in the applicable Order, during the License Term, the Rightholder (or Partner, if applicable) will make available to You, support services in conjunction with the Software.
5. Collection and Use of Your Information
5.1. You acknowledge that when you download, install or use the Software, the Software may use automatic means (including, for example, cookies and web beacons) to collect information about your Device(s) and about Your use of the Software (which is included in the definition of End User Data). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Software, and the Software may provide You with opportunities to share information about yourself with others.
5.2. To the extent we collect any personal information about You, this will be handled in accordance with our privacy obligations in the Privacy Policy (https://prismaunify.com/) and the privacy and End User Data obligations in this Agreement. Personal information includes identifiable data such as:
a) User Name/Surname
b) Job Title
c) Department/Agency/Office Name
d) Department/Agency/Office Address
e) Department/Agency/Work Email Address
f) Department/Agency/Work Land Line and Mobile Number
g) Device IMEI, Serial, location and other device unique identifiable information
h) Software unique identifiable information such as serial number.
5.3. Use of De-identified Data – Without in any way impacting your ownership of the End User Data, You acknowledge that all De-identified Data is the property of the Rightholder, and the Rightholder has the right to use, collect, store, create, aggregate, mine, analyse, modify, commercialise, assign, convey, sell, lease, license or transfer the De-identified Data in any form, for any purpose and in any manner. De-identified Data includes the following types of information collected:
a) Data that has never been labelled with individual identifiers such as but not limited to device model, hardware and software specification.
b) Data that has had the identifiers permanently removed in such a way as to ensure no specific individual can be identified such as service desk ticket types, ticket categories and sub categories, service desk usage frequency and duration.
5.4. Geographic Restrictions – The Software and access to Hosted Software are provided for access and use only by persons located in the country in which the Software was purchased. You acknowledge that you may not be able to access all or some of the Software outside of the country of purchase and that access thereto may not be legal by certain persons or in certain countries. If you access the Software from outside the country of purchase, you are responsible for compliance with local laws.
5.5. You further acknowledge and agree that any information gathered by Rightholder can be used to track and publish reports on security, risk and trends in the Rightsholder’s sole and exclusive discretion.
6. Limitations
6.1. You shall not emulate, clone, rent, lend, lease, sell, modify, decompile, or reverse engineer the Software or disassemble or create derivative works based on the Software or any portion thereof with the sole exception of a non-waivable right granted to You by applicable legislation, and you shall not otherwise reduce any part of the Software to human readable form or transfer the licensed Software, or any subset of the licensed Software, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Neither Software’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary. All rights not expressly granted herein are reserved by Rightholder and/or its suppliers, as applicable. Any such unauthorized use of the Software shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution against You.
6.2. You shall not transfer the rights to use the Software to any third party except as set forth in Clause 2.1.
6.3. You shall not rent, lease or lend the Software to any third party.
6.4. You shall not use the Software in the creation of data or software used for detection, blocking or treating threats described in the User Manual.
6.5. You shall not use the Software with the purpose of executing illegal actions, including tracking and obtaining confidential information for use against a third party.
7. Limited Warranty and Disclaimer
7.1. The Rightholder guarantees that the Software will substantially perform according to the specifications and descriptions set forth in the User Manual provided however that such limited warranty shall not apply to the following:
(a) Your Computer’s deficiencies and related infringement for which Rightsholder’s expressly disclaims any warranty responsibility;
(b) malfunctions, defects, or failures resulting from misuse; abuse; accident; neglect; improper installation, operation or maintenance; theft; vandalism; acts of God; acts of terrorism; power failures or surges; casualty; alteration, non-permitted modification, or repairs by any party other than Rightholder; or any other third parties’ or Your actions or causes beyond Rightholder’s reasonable control;
(c) any defect not made known by You to Rightholder as soon as practical after the defect first appears; and
(d) incompatibility caused by hardware and/or software components installed on Your Computer.
7.2. You acknowledge, accept and agree that no software is error free and You are advised to back-up the Computer, with frequency and reliability suitable for You.
7.3. You acknowledge, accept and agree that Rightholder is not responsible or liable for data deletion authorized by You. The mentioned data may include any personal or confidential information.
7.4. The Rightholder does not provide any guarantee that the Software will work correctly in case of violations of the terms described in the User Manual or in this Agreement.
7.5. The Rightholder does not guarantee that the Software will work correctly if You do not regularly download updates and/or Updates specified in Clause 2.1 of this Agreement.
7.6. THE SOFTWARE IS PROVIDED “AS IS” AND THE RIGHTSHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW THE RIGHTSHOLDER AND ITS PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR APPLICABILITY FOR A PARTICULAR PURPOSE. YOU ASSUME ALL FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, THE RIGHTSHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL YOUR REQUIREMENTS WHETHER OR NOT DISCLOSED TO THE RIGHTHOLDER.
8. Term and Termination.
8.1. The license granted herein with respect to specific Software shall remain effective until the License Term for the relevant Software expires or the license for the relevant Software is terminated. This Agreement shall remain effective until the earliest of (a) termination in accordance with this Clause 9, (b) expiration of the applicable License Term. If the Rightholder agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. In addition, Clause 1, 3, 6-7, 10, 12, and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
9. Exclusion and Limitation of Liability
9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE RIGHTSHOLDER OR ITS PARTNERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, FOR CORRUPTION, DAMAGE AND LOSS OF DATA OR PROGRAMS, FOR FAILURE TO MEET ANY DUTY INCLUDING ANY STATUTORY DUTY, DUTY OF GOOD FAITH OR DUTY OF REASONABLE CARE, FOR NEGLIGENCE, FOR ECONOMIC LOSS, 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 SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, OR ARISING OUT OF ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY), OR ANY BREACH OF STATUTORY DUTY, OR ANY BREACH OF WARRANTY OF THE RIGHTSHOLDER OR ANY OF ITS PARTNERS, EVEN IF THE RIGHTSHOLDER OR ANY PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.YOU AGREE THAT IN THE EVENT THE RIGHTSHOLDER AND/OR ITS PARTNERS ARE FOUND LIABLE, THE LIABILITY OF THE RIGHTSHOLDER AND/OR ITS PARTNERS SHALL BE LIMITED BY THE COSTS OF THE SOFTWARE. IN NO CASE SHALL THE LIABILITY OF THE RIGHTSHOLDER AND/OR ITS PARTNERS EXCEED THE FEES PAID FOR THE SOFTWARE TO THE RIGHTSHOLDER OR THE PARTNER (AS MAY BE APPLICABLE).NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY CLAIM FOR DEATH AND PERSONAL INJURY. FURTHER IN THE EVENT ANY DISCLAIMER, EXCLUSION OR LIMITATION IN THIS AGREEMENT CANNOT BE EXCLUDED OR LIMITED ACCORDING TO APPLICABLE LAW THEN ONLY SUCH DISCLAIMER, EXCLUSION OR LIMITATION SHALL NOT APPLY TO YOU AND YOU CONTINUE TO BE BOUND BY ALL THE REMAINING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
10. GNU and Other Third Party Licenses
10.1. The Software may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (GNU GPL or GPL) or other similar free software licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code (“Open Source Software”). If such licenses require that for any software, which is distributed to someone in an executable binary format, that the source code also be made available to those users, then the source code should be made available by sending the request to support@mobiliseit.com or the source code is supplied with the Software. If any Open Source Software licenses require that the Rightholder provide rights to use, copy or modify an Open Source Software program that are broader than the rights granted in this Agreement, then such rights shall take precedence over the rights and restrictions herein.
11. Intellectual Property Ownership
11.1. You agree that the Software and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Software, are proprietary intellectual property and/or the valuable trade secrets of the Rightholder or its partners and that the Rightholder and its partners, as applicable, are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the Australian, European Union and the United States, as well as other countries and international treaties. This Agreement does not grant to You any rights to the intellectual property including any the Trademarks or Service Marks of the Rightholder and/or its partners (“Trademarks”). You may use the Trademarks only insofar as to identify printed output produced by the Software in accordance with accepted trademark practice, including identification of the Trademark owner’s name. Such use of any Trademark does not give you any rights of ownership in that Trademark. The Rightholder and/or its partners own and retain all right, title, and interest in and to the Software, including without limitation any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Rightholder or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. All copies of the Software made hereunder must contain the same proprietary notices that appear on and in the Software. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Software and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement. Rightholder reserves all rights not expressly granted to you in this Agreement.
11.2. You acknowledge that the source code, activation code and/or license key file for the Software are proprietary to the Rightholder and constitutes trade secrets of the Rightholder. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software in any way.
11.3. You agree not to modify or alter the Software in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Software.
12. Governing Law
12.1. Except as provided in Clauses 11.2 and 11.3 below, this Agreement shall be governed by and construed in accordance the laws specified below for the country or territory in which you obtained the Software, without reference to or application of conflicts of laws principles:
a. Australia. If you obtained the Software in Australia, the laws of the State of Victoria.
b. Hong Kong Special Administration Region (SAR) and Macau SAR. If you obtained the Software in Hong Kong SAR or Macau SAR, the laws of Hong Kong SAR.
c. Singapore. If you obtained the Software in Singapore, the laws of Singapore.
d. Japan. If you obtained the Software in Japan, the laws of Japan.
e. United States, Puerto Rico, American Samoa, Guam, and U.S. Virginia Islands. If you obtained the Software in the United States, Puerto Rico, American Samoa, Guam or the U.S. Virgin Islands, the laws of the State of Massachusetts, USA, provided, however, that the laws of the U.S. state where you live will govern claims under state consumer protection, unfair competition, or similar laws. To the fullest extent permitted by law, the Rightholder and you expressly agree hereby to waive any right to a trial by jury.
f. Canada. If you obtained the Software in Canada, the laws of the Province of Ontario.
g. Mexico. If you obtained the Software in Mexico, the federal laws of the Republic of Mexico.
h. European Union (EU). If you obtained the Software in a member country of the EU, the laws of England.
i. Any Other Country or Territory. If you obtained the Software in any other country, the substantive laws of the country where the purchase took place would be in effect.
12.2. Notwithstanding the foregoing, if the mandatory laws or public policy of any country or territory in which this Agreement is enforced or construed prohibit the application of the law specified herein, then the laws of such country or territory shall instead apply to the extent required by such mandatory laws or public policy. Similarly, if you are an individual consumer, the provisions of Clause 12.1 shall not affect any mandatory right you may have to take action in your country of residence under the laws of that country.
12.3. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
13. Period for Bringing Actions
13.1. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
14. Entire Agreement; Severability; No Waiver
14.1. This Agreement is the entire agreement between you and Rightholder and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Software or to subject matter of this Agreement. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent. No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Rightholder, provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Rightsholder’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
15. Rightholder Contact Information
15.1. Should you have any questions concerning this Agreement, or if you desire to contact the Rightholder for any reason, please contact our help desk service at:
Prisma Unify Pty Ltd
376 Johnston Street
Abbotsford, Victoria 3067
Australia
E-mail: info@mobiliseit.com
Web site: www.mobiliseit.com
(C) 2012 Prisma Unify All Rights Reserved. The Software and any accompanying documentation are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.