Security Insight
Licence Agreement

1   Background

1.1 The LAB3 Group (being LAB3 Pty Ltd and LAB3 NZ Limited) (us, we) have developed as-code security solutions known as Security Insight and a data feed of indicators of compromise known as Security Threat Intelligence (together Security Insight).

2   Terms

2.1 These Licence Agreement terms (Terms) govern access to and use of Security Insight, including all associated features and functionalities, by individuals and organisations who purchase, or otherwise use, Security Insight (Licensee, you, your).

2.2 By deploying, accessing, or using Security Insight, or requesting us, your Partner or another party to do so on your behalf, you accept these Terms as a binding contract (whether on behalf of yourself or a legal entity you represent).

2.3 You are responsible for:

(a) identifying and authenticating Personnel who are authorised to access and use Security Insight;

(b) approving access by such authorised Personnel;

(c) controlling against unauthorised access by any Personnel; and

(d) the acts and omissions of such Personnel in connection with their access to and use of Security Insight.

2.4 If you do not accept and comply with these Terms, you may not access or use Security Insight.

3   Partner

3.1 Where you purchase Security Insight from a Partner:
(a) the pricing of Security Insight is independently determined by your Partner;
(b) itemised details of your Security Insight purchase will be set out in the agreement between you and your Partner; and
(c) unless otherwise agreed, you will be invoiced by, and all payments must be made directly to, your Partner.
3.2 Where you purchase Security Insight from a Partner, we are not responsible for:
(a) the acts or omissions of your Partner;
(b) any additional obligations your Partner may have to you;
(c) any representation, warranties or other commitments made to you by your Partner without our prior written consent;
(d) products or services that your Partner sells or supplies to you that are not provided by us; or
(e) the refund or reimbursement of any amounts paid by you, including on termination of these Terms.

4  Licence Duration

4.1 These Terms take effect and bind the Parties from the date that the version of Security Insight purchased by you (or a Test Version) is made available to you.

4.2 These Terms will continue to apply to, and govern your access to and use of, Security Insight until the later of:

(a) when Security Insight is removed from your environment; or

(b) when these Terms are terminated in accordance with clause 21.

4.3 To change a Security Insight version or plan deployed through the Microsoft Marketplace (such as to change from a Test Version to a paid plan, or from one paid plan to a different paid plan) then the previous version or plan must be cancelled and clause 11 will apply at the end of the Licence Duration. Any new version or plan will be subject to these Terms and its own Licence Duration.

5  Licence to Security Insight

5.1 Subject to payment of all applicable Licence Fees, we hereby grant you a non-transferrable, non-exclusive, royalty-free licence to access and use Security Insight during the Licence Duration and strictly in accordance with these Terms.

6  Licence Fees

6.1 You must pay the applicable Licence Fees for Security Insight, which will be charged:

(a) by us where you purchased Security Insight directly from us (which charging may take place via the Microsoft Marketplace); or

(b) through your Partner.
6.2 You will be charged the applicable Licence Fees for so long as Security Insight remains deployed in your environment and until all resource instances of Security Insight have been removed from your environment.

6.3 Where you order Security Insight for a particular period, then that order represents a minimum commitment by you (Minimum Commitment).
6.4 You acknowledge and agree that, even if:
(a) you cancel your Security Insight order during that period; or
(b) these Terms are terminated by us in accordance with these Terms during that period,
you remain liable for all Licence Fees relating to the Minimum Commitment and no refund or credit will be offered or payable to you.

7  Use of Security Insight

7.1 You must comply with any reasonable directions as notified by us to you from time to time in relation to your access to and use of Security Insight.

7.2 You must not (and you must ensure that your Personnel and Affiliates do not) do, or attempt to do, any of the following:

(a)  allow access to Security Insight by anyone other than properly authorised Personnel;

(b) provide any third party with access to, or use of, Security Insight or any Security Insight modules (whether such modules were developed by us, you, or your service provider) for use outside your organisation;

(c)  sell, distribute or transfer any part of your right to access and use Security Insight;

(d)  sublicense your right to access and use Security Insight without our express permission;

(e) use Security Insight in any way or for any purpose other than as specifically contemplated by these Terms;

(f)  download, modify, adapt, translate, de-compile, disassemble, copy, reproduce, create, reverse engineer or reverse compile Security Insight (or any part of it);

(g)  interfere with, disrupt or alter any Security Insight functionality;

(h) copy, share, distribute, alter, customise, modify or create derivative works of Security Insight;

(i)  circumvent or break any encryption, decryption or other security device or technology measure(s) contained in Security Insight or that control access to or use of Security Insight;

(j)  tamper with, hinder the operation of or make unauthorised modifications to Security Insight;

(k)  use data mining or similar data gathering tools, access or discover Security Insight’s algorithms or data models, or attempt to copy any of the data available on Security Insight; or

(l)   use Security Insight for any unlawful purpose.

8  Releases, support, patching and updates

8.1 Support services for Security Insight will only be provided if support services have been purchased by you and will be provided directly by us (where you purchased Security Insight directly from us) or by your Partner.
8.2 Where you have purchased support services then, regardless of which feature release or module of Security Insight was purchased by you, unless expressly agreed otherwise, only the following will be supported:
(a) the current feature release or module of Security Insight; and
(b) the immediately preceding feature release or module of Security Insight for 60 days after the release date of the current feature release or module.
8.3 To the extent permitted by law, all other support and warranties relating to previous feature releases or modules of Security Insight end on the date of a new feature or module release.
8.4 Unless expressly agreed otherwise, upgrades and updates to Security Insight are not included in the Licence Fees and will be at your cost.
8.5 We may, in our absolute discretion, update and/or patch Security Insight as we deem necessary, provided that such patches or updates do not adversely affect the environment in which Security Insight is deployed.

8.6 To assist us to improve Security Insight, we may from time to timeto time offer a UAT, Beta, proof of concept or similar test version of Security Insight through the Microsoft Marketplace (Test Version) in relation to which no Licence Fees are payable.
8.7 Test Versions:
(a) are provided on an “as-is” basis, without warranties of any kind, express or implied, including warranties as to fitness for a particular purpose or that the Test Version will be uninterrupted or error-free;
(b) cannot be upgraded or switched over to any other version, feature release or module of Security Insight; and
(a)(c) will be made unavailable to you at the end of the relevant testing period and clause 11 will apply.

9  Licensee obligations

9.1  You are solely responsible (at your own cost) for:

(a) acquiring your own Microsoft Sentinel licence (and any other required licences or platforms) and complying with any licence or other terms that apply to your use of Microsoft Sentinel or other platform;

(b) providing all equipment, software and internet access necessary to access and use Security Insight;
(c) ensuring that your IT environment (and the IT environment of your users) interfaces with and is compatible with Security Insight; and
(d) the security and use of log-in details and access credentials, and all access to and use of Security Insight.

9.2 You must:

(a)  provide us with all reasonable assistance and cooperation as reasonably requested by us from time to time in the provision of Security Insight, including by providing access to relevant platforms and systems upon which Security Insight is deployed;

(b) monitor and restrict access to Security Insight source artifacts (including code, documentation and configurations) only to your representatives and service providers approved by us;

(c)  immediately report any security violations or misuse of Security Insight to us;

(d)  not alter, change, remove or obscure any notices or other indications (including copyright notices) as to the ownership of Security Insight;

(e)  act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and

(f)  comply at all times with applicable laws, protocols, policies and guidelines issued by us from time to time.

9.3  If any delay or failure by us to comply with our obligations under these Terms is caused or contributed to by any failure by you or your Personnel to comply with your obligations under these Terms, then we will not be responsible for the delay or failure.

9.4 We may audit your use of Security Insight at any time (subject to us providing you with reasonable notice) and you agree to comply with our audit requests and audit processes.

10  Licensee Data

10.1 We acknowledge that, as between the Parties, all right, title and interest in the Licensee Data is owned by you.
10.2 You hereby grant to us (and our Personnel) a non-exclusive, royalty-free, worldwide licence to access, use, modify, reproduce and perform all acts with respect to Licensee Data, as required to perform our obligations or as otherwise permitted under these Terms.
10.3 We will not use or disclose any Licensee Data other than in accordance with these Terms and the Microsoft Marketplace terms (if applicable).
10.4 You acknowledge that other parties with whom you have an agreement may also have access to your Licensee Data and that it is the obligation of such parties to handle that information in accordance with their own privacy and security policies.
10.5 You acknowledge that it is your responsibility to nominate your preferred region for Security Insight (Nominated Region) and to confirm your Nominated Region when given access to Security Insight.
10.6 You also acknowledge that the Licensee Data will be transferred to and stored in the Nominated Region.
10.7 You warrant that:
(a) you have all necessary rights and consents to use the Licensee Data in connection with Security Insight and to permit us to use the Licensee Data in accordance with these Terms;
(b) the Licensee Data and its use by us in the manner permitted by these Terms will not breach any laws or the rights of any person;
(c) the Licensee Data does not contain any personal or sensitive information, information which could be used to identify any individual or any information or material which is unlawful; and
(d) you will not, and you will ensure that your Personnel do not, use Security Insight to transmit any Malicious Code.
10.8 You acknowledge that we do not have any obligation to, and may not be able to, download, store or keep copies of Licensee Data either during your Licence Duration or after the end of your Licence Duration.

11 Offboarding

11.1 Where you purchase Security Insight through the Microsoft Marketplace then, at the end of the Licence Duration, you are required to remove Security Insight from your environment and Microsoft’s Sentinel offboarding process and timeframes will apply. The offboarding process may include connector configurations being removed, data and analytics rules being deleted or no longer being accessible or queryable and resources being deleted or removed.
11.2 You acknowledge and agree that Licensee Data, analytics rules or resources which are removed or deleted may not be recoverable by us or you once removed or deleted.

12 Security Insight Data

12.1 You agree that we may:

(a) collect and compile diagnostic, statistical, performance, technical, usage and related information regarding your use of Security Insight (Security Insight Data); and

(b) use Security Insight Data to:

(i) monitor your use of Security Insight;

(ii) monitor your compliance with your obligations under these Terms;

(iii) enable discussions with your Partner and other parties who may be involved in providing Security Insight related services to you;

(iv) improve Security Insight; and

(iv) for internal business purposes.

12.2 You also agree that we may use Security Insight Data on a de-identified anonymised basis, without cost and at our discretion:

(a) to publicise, market and sell Security Insight;

(b) to prepare case studies, articles, reports and research, which may be made publicly available in compliance with applicable law;

(c) to supply Security Insight and related products and services to our partners and clients; and

(d) for any other purposes permitted by applicable law.

12.3 All rights, including Intellectual Property Rights, title and interest in Security Insight Data belong to and are retained solely by us.

13  Security

13.1 You acknowledge that any log-in details and access credentials used to access Security Insight are confidential and must ensure that this information is kept secure from unauthorised access, use or modification.

13.2 You are solely responsible for any use (or misuse) of Security Insight arising from a failure to keep information secure in accordance with clause 13.1.

14  Intellectual Property Rights

14.1 We are the owner or authorised licensee of all Intellectual Property Rights:

(a) currently subsisting in Security Insight;

(b) in any augmentations, modifications, improvements or enhancements to, or derivatives of, Security Insight;

(c) in any modules or materials (including software, documents, results, information, data and business processes):

(i) created or developed by us (whether or not for you, us, your Partner or another party) through the use of Security Insight, and otherwise in the performance of these Terms; or

(ii) created or developed by you or on your behalf through the use of Security Insight,

collectively and separately referred to in these Terms as Security Insight IP.

14.2 Where Security Insight IP is not already owned by us it will vest in and be exclusively owned by us immediately upon its creation.
14.3 We grant to you a non-transferrable, non-exclusive, royalty-free, revocable licence to use Security Insight IP in connection with your use of Security Insight during the Licence Duration.
14.4 Nothing in these Terms assigns or transfers ownership of any Security Insight IP to you, your Partner or any other party.
14.5 You must promptly notify us in writing if you become aware that any party is infringing or misappropriating any Security Insight IP or any of our other Intellectual Property Rights.

15  Confidentiality

15.1 Each Party agrees to keep confidential, and not to use or disclose, other than as permitted in these Terms, any Confidential Information of the other Party, except:
(a) as required by law, a regulatory authority, or a stock exchange, provided that it gives the other Party written notice prior to disclosure;
(b) with the prior written consent of the Party who supplied the information;
(c) if the information is in the public domain or comes into the public domain other than as a result of breach of these Terms;
(d) if the recipient Party already knew or had, on a non-confidential basis, the information before receiving it; or
(e) if the recipient Party independently developed or acquired the information, without a breach of these Terms or other breach of confidence.
15.2 Each Party agrees to take all prudent steps, including maintaining effective information security measures, to protect the Confidential Information of the other Party from unauthorised access, use, copying or disclosure.
15.3 Each Party must only use Confidential Information of the other Party for the purpose for which it was disclosed in connection with these Terms.

16  Disputes

16.1 If a Dispute arises, neither Party may commence any proceedings relating to the Dispute unless it has first complied with this clause 16, except where a Party seeks urgent interlocutory relief.
16.2 A Party claiming a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute.
16.3 On receipt of that notice, the Parties must use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
16.4 If the Dispute is not resolved within 15 business days of notice being given pursuant to clause 16.2 (or within such further period agreed in writing by the Parties), the applicable Dispute resolution process below will be followed by the Parties.
16.5 While the relevant Dispute resolution procedure is being followed, both Parties must continue to fulfil their obligations under these Terms.
16.6 If you are incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Melbourne, Australia in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Expedited Arbitration Rules for the time being in force, which rules are deemed to be incorporated by reference in this clause 16. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
16.7 If you are not incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause 16. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
16.8 THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES UNDER THESE TERMS.
16.9 Each Party agrees that any Dispute must be brought in the respective Party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff or similar proceeding (Class Action).
16.10 The Parties expressly waive any ability to maintain any Class Action in any forum in connection with any Dispute. An arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a Party to the arbitration.
16.11 Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

17  Warranties and disclaimers

17.1 We warrant that Security Insight will substantially conform to any applicable product and service specifications that we provide to you in writing.

17.2 Your sole and exclusive remedy, and our sole liability, under or in connection with a breach of clause 17.1, will be the re-supply of Security Insight in accordance with the warranty in clause 17.1, or if this is commercially impracticable, termination of these Terms and a refund of any unused pre-paid Licence Fees for the remaining period of your Security Insight purchase as at the date of termination.

17.3 TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE TERMS AND ANY EXPRESS WARRANTIES IN THESE TERMS, SECURITY INSIGHT IS PROVIDED BY US “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, REPRESENTATIONS, IMPLIED TERMS AND GUARANTEES NOT EXPRESSLY STATED IN THESE TERMS, INCLUDING ANY WARRANTY OR REPRESENTATION THAT SECURITY INSIGHT WILL BE FIT FOR ANY PARTICULAR PURPOSE OR WILL BE ERROR-FREE OR UNINTERRUPTED. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OUTPUTS OF SECURITY INSIGHT OR ANY RESULTS OF USE OF SECURITY INSIGHT.

17.4 IN PARTICULAR, AND WITHOUT LIMITING CLAUSE 17.3, WE DO NOT TAKE ANY RESPONSIBILITY FOR, DO NOT SUPPORT, AND ARE NOT LIABLE IN ANY WAY TO YOU FOR ANY PARTNER OR THIRD PARTY SERVICES, PRODUCTS, PLATFORMS OR ADD-INS (OTHER PARTY SERVICES) OR FOR ANY FAILURE OF SECURITY INSIGHT CAUSED BY SUCH OTHER PARTY SERVICES (INCLUDING ANY CHANGES TO ANY SUCH OTHER PARTY SERVICES).

17.5 We will use commercially reasonable efforts to ensure that Security Insight is free of any Malicious Code.

17.6 For the avoidance of doubt, nothing in these Terms is intended to exclude any guarantees which by law cannot be excluded or modified.  If we are liable for breach of any guarantee or warranty that cannot be excluded or modified by law, then to the extent permitted by law, our liability for that breach will be limited to re-supplying Security Insight in accordance with the respective guarantee.

17.7 You acknowledge and agree that:

(a)  it is your responsibility to test Security Insight in a development environment before it is deployed in a production environment;

(b) we are not responsible for the outcomes of any customisation by you of Security Insight;

(c)  any use of, or reliance on, information which is made available to you through Security Insight is undertaken entirely at your own risk; and

(d)  we do not control the transfer of data over the internet and that access to Security Insight may be subject to limitations, delays, and other problems inherent in the use of the internet.

18  Indemnity

18.1  You agree to indemnify, hold harmless and (at our option) defend us and our Affiliates, and each of our directors, officers, agents and employees, from and against any Loss (including Loss arising in connection with third party claims) suffered, paid, or incurred by us arising out of or in connection with:

(a) any breach by you or your Personnel of these Terms, except to the extent that such Loss is caused or contributed to by us;

(b) any claim that our use of Licensee Data infringes the rights (including Intellectual Property Rights) or any other person; or

(c) any claim relating to Loss suffered as a result of your reliance on any information or results provided through Security Insight.

19  LIMITATION OF LIABILITY

19.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE TO YOU, YOUR PERSONNEL OR TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL LOSS ARISING FROM OR RELATING TO SECURITY INSIGHT OR THESE TERMS, WHETHER FORESEEABLE OR UNFORSEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRETATATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHER CAUSE OF ACTION.
19.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR AND OUR AFFILIATES’ MAXIMUM CUMULATIVE LIABILITY TO YOU (INCLUDING TO YOUR PERSONNEL) ARISING OUT OF OR IN CONNECTION WITH SECURITY INSIGHT OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU FOR SECURITY INSIGHT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE, UP TO A MAXIMUM OF USD $100,000.
19.3 Nothing in these Terms limits or excludes the liability of a Party for:
(a)  personal injury or death, or damage to or loss of real or personal property;
(b)  breach of clause 6; or
(c)  acts of fraud, misrepresentation or wilful misconduct.

20 RESPONSIBILITY

20.1 IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST SECURITY INSIGHT AFTER IT HAS BEEN DEPLOYED IN YOUR ENVIRONMENT TO DETERMINE WHETHER IT IS ACCEPTABLE TO YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES.
20.2 YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON SECURITY INSIGHT.
20.3 YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THAT THE LICENCE IS CONDITIONED ON YOUR REPRESENTATION TO US THAT YOU HAVE ACCEPTED AND AGREE TO BE BOUND BY THESE TERMS.

21  Cancellation and termination

21.1 Where not inconsistent with any other agreement relating to Security Insight (including a statement of work, master services agreement, partner agreement, work order or purchase order with us or an agreement you have with your Partner or another party in relation to Security Insight), you may cancel your Security Insight licence and terminate these Terms for your convenience at any time by providing us at least 30 days’ notice in writing.

21.2  We may terminate all or part of these Terms and/or suspend your access to and use of Security Insight:
(a)  if you have not paid a correctly rendered and undisputed invoice issued by us, by your Partner, or through the Microsoft Azure Marketplace (as applicable) by its payment due date; or
(b)  immediately if you breach these Terms.

22  Consequences of termination or expiry

22.1 Upon the earlier of termination of these Terms or the expiry of your Security Insight licence:
(a) your licence to access and use Security Insight will immediately cease;
(b) we will be entitled to suspend your access to and use of Security Insight;

(c) where you purchased Security Insight through the Microsoft Marketplace clause 11 will apply; and
(c) unless otherwise agreed, you must remove Security Insight from your environment.

22.2 Despite any other provision of these Terms, any obligations which are expressed to or, by their nature, survive termination of these Terms will continue to the benefit of and be enforceable by the Parties.

23 Microsoft attributions

23.1 Where you have purchased Security Insight from us, you agree to permit us to associate all relevant Microsoft attributions with ourselves in your systems.

23.2 Where you have purchased Security Insight through your Partner, you agree to permit your Partner to associate all relevant Microsoft attributions with themselves in your systems.

23.3 The actions that may be taken to associate Microsoft attributions under this clause 23 may include us or your Partner (as relevant) enabling ourselves or themselves as your DPOR (Digital Partner of Record) and/or enabling us or them to link or associate a Microsoft Partner ID (through PAL (Partner Admin Link) or CPOR (Claiming Partner of Record)) to your Microsoft licences, products and consumption through subscription(s).

24 Force Majeure Event

24.1 Subject to compliance with this clause 24, a Party will not be liable for any delay or non-performance of its obligations (other than an obligation to pay money) under these Terms to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.
24.2 The affected Party must:
(a) do all reasonable things to avoid, minimise the duration of, and mitigate the consequences of the Force Majeure Event;
(b) promptly notify the other Party of the occurrence of the Force Majeure Event, providing full details of the Force Majeure Event, an estimate of its likely duration, the impacted obligations and the extent to which performance is likely to be affected, and the steps taken by the affected party under clause 24.2(a); and
(c) when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other Party.

25 U.S. Government End Users

25.1 The following clauses apply if you are a U.S. Government End User.
25.2 Security Insight is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
25.3 Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Security Insight with only those rights set forth in these Terms.
25.4 Security Insight (including related documentation) is provided to U.S. Government End Users:
(a) only as a commercial end item; and
(b) only pursuant to these Terms.
25.5 With respect to end-users that are of any other government, similar conditions are likewise agreed upon between the Parties, to the effect that you hereby acknowledge that Security Insight constitutes a pre-existing commercial product developed at private expense and provided to you only in accordance with these Terms and you have no rights not explicitly granted by us under these Terms.

26 Export controls

26.1 You represent and warrant that you will not:
(a)  export, re-export or otherwise make available or provide access to or use of Security Insight to any party that is:
(i)  listed on:
(A)  any of the sanctions or designated persons or parties lists administered and enforced by the U.S. Treasury Department’s Office of Foreign Assets Control, the U.S. Commerce Department or the U.S. State Department;
(B)  the European Commission’s “Consolidated list of persons, groups and entities subject to EU financial sanctions”;
(C)  the United Kingdom HM Treasury’s Office of Financial Sanctions Implementation’s “Consolidated List of Financial Sanctions Targets in the UK”; or
(D)  such other applicable list maintained by a relevant government agency; or
(ii)  located in (or a national of) a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; or
(b)  permit any of your Personnel to access or use Security Insight in violation of any applicable export control or economic sanctions laws.

27 General provisions

27.1 Order of precedence: In the case of any conflict or inconsistency between these Terms and the terms of any other agreement between the Parties (including a statement of work, master services agreement, partner agreement, work order or purchase order) then these Terms will take precedence in relation to the subject matter of these Terms.

27.2 Waiver: No waiver of a right or remedy under these Terms is effective unless it is in writing and signed by the Party granting it.

27.3 Rights cumulative: Except as expressly stated otherwise in these Terms, the rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party.

27.4 Consents: Except as expressly stated otherwise in these Terms, a Party may conditionally or unconditionally give or withhold any consent to be given under these Terms and is not obliged to give its reasons for doing so.

27.5 Further steps: Each Party must promptly do whatever the other Party reasonably requires of it to give effect to these Terms and to perform its obligations under it.

27.6 Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable in the State of Victoria, Australia.

27.7 Assignment: A Party must not assign or deal with any right under these Terms without the prior written consent of the other Party.  Any purported dealing in breach of this clause 27.7 is of no effect.

27.8 Affiliates: In these Terms references to you or to us include respectively any of your, or our, Affiliates.

27.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.

28 Definitions

In these Terms:

Affiliate means any person or entity that controls, is controlled by, or is under common control with a Party, (where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities) is, for the purposes of these Terms, an affiliate of that Party (and in relation to LAB3 Pty Ltd includes LAB3 NZ Limited).

Confidential Information of a Party means in respect of a Party (disclosing Party) any information obtained by the other Party from the disclosing Party, or from any Personnel or Affiliate of the disclosing Party, that is by its nature confidential, is designated as confidential by the disclosing Party or that the other Party knows or ought reasonably to know is confidential.

Consequential Loss means any consequential, indirect, special, incidental, reliance or exemplary losses or damages, including:

(a) loss of revenue, profit, anticipated profit, investment, production, use, opportunity, savings, anticipated savings, contracts or goodwill;
(b) costs of procurement of substitute goods, deliverables, services, rights or technology or wasted overheads;
(c) loss, damage or corruption of data or interruption in use or availability of data;
(d) any loss not arising naturally (that is, according to the usual course of things) from the relevant breach, act or omission,
even if a Party had been advised of the possibility of such losses or damages and whether or not such loss may reasonably be supposed to have been in the contemplation of the Parties, at the time they entered into these Terms, as the probable result of the relevant breach, act or omission.

Dispute means any dispute, controversy or claim arising out of, relating to or in connection with these Terms, including any question regarding their existence, validity, termination, breach, enforcement or interpretation.

Force Majeure Event means an event out of a Party’s reasonable control, such as an act of God, fire, lightning, earthquake, cyclone, flood, subsidence or other natural disaster, pandemic or epidemic, national emergency, insurrection, civil disorder, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), military operations or act of terrorism, shortage of power or shortage of material from a normal source of supply and excludes any act or omission of a Party.

Intellectual Property Rights means any rights normally covered with this term and includes existing and future copyrights, rights in designs, patents, trademarks all rights in any applications or registrations of those rights whether registered or unregistered (and whether registrable or not) and existing anywhere in the world.

Licence Duration means the period referred to in clause 4.

Licence Fees means the fees payable by you for the provision of Security Insight either directly by us (including through the Microsoft Marketplace) or through a Partner.

Licensee Data means any and all data, materials, content or information entered into, transmitted through, or stored in Security Insight by you, or otherwise made available or accessible to us by you in connection with Security Insight, and includes any results generated by your use of Security Insight.

Loss means loss, damage, claim, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.

Malicious Code means code, files, scripts, agents or programs designed or intended to do harm, such as disabling or impeding the normal operation of, or providing unauthorised access to, networks, systems, software or environments (including viruses, worms, time bombs and Trojan horses).

Microsoft Marketplace means Microsoft’s commercial marketplace through which customers can purchase solutions from independent software vendors, including LAB3 Pty Ltd.

Parties means us and you and Party means either us or you, as the context requires.

Partner means a person or entity authorised by us to sell Security Insight to end users.

Personnel means, in relation to an entity, that entity’s directors, officers, employees, agents, service providers and contractors and includes directors, officers, employees and agents of that Party’s contractors.

U.S. Government End User means any agency or entity of the government of the United States.

29 Construction

Unless expressed to the contrary, in these Terms:

(a)  includes means includes without limitation;

(b) a reference to:

(i)  a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority;

(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;

(iii) these Terms include all schedules and annexures to these Terms; and

(c)  headings do not affect the interpretation of these Terms.