SANDFLY SECURITY END USER LICENSE AGREEMENT
1 APPLICATION OF AGREEMENT
1.1 This Agreement applies to your use of the Software (as that term is
defined below). By downloading, installing, accessing and/or using the
a you agree to this Agreement; and
b where you download, install and/or use the Software on behalf of
another person (e.g. a company), you confirm that you are authorized
to, and do in fact, agree to this Agreement on that person's behalf and
that, by agreeing to this Agreement on that person's behalf, that person
is bound by this Agreement.
1.2 If you do not agree to this Agreement, you must not download, install,
access and/or use the Software.
2.1 In this Agreement:
Documentation means the user and technical documentation for the Software
provided by Sandfly, and includes any update of that documentation.
Fees means the fees Sandfly has quoted to you or otherwise agreed in writing
between you and Sandfly, as may be updated from time to time in accordance
with clause 7.6. Intellectual Property Rights includes copyright, and all
worldwide rights conferred under statute, common law or equity in relation to
inventions (including patents), registered and unregistered trade marks and
designs, circuit layouts, data and databases, confidential information,
know-how, and all other rights resulting from intellectual activity.
Intellectual Property has a consistent meaning, and includes any enhancement,
modification or derivative work of the Intellectual Property.
Sandfly means Sandfly Security Limited, company number 6291750.
Sales Tax means goods and services tax, value added tax, sales tax or
equivalent tax payable under any applicable law.
Software means the security software known as Sandfly, including any Update.
Support Services means the support services described in clauses 6.2 to 6.4.
Update means a new version of the Software released or made available to you by
You or your means you, or, if clause 1.1b applies, both you and the other
person on whose behalf you are acting.
2.2 In this Agreement:
a clause and other headings are for ease of reference only and do not
affect the interpretation of this Agreement;
b words in the singular include the plural and vice versa;
c a reference to:
i a party to this Agreement includes that party's permitted assigns;
ii personnel includes officers, employees, contractors and agents, but a
reference to your personnel does not include Sandfly;
iii a person includes an individual, a body corporate, an association of
persons (whether corporate or not), a trust, a government department, or
any other entity;
iv including and similar words do not imply any limit; and
v a statute includes references to regulations, orders or notices made
under or in connection with the statute or regulations and all amendments,
replacements or other changes to any of them;
d no term of this Agreement is to be read against a party because the
term was first proposed or drafted by that party; and
Sandfly grants to you, and you accept, a non-exclusive and non-transferable
license for the duration of this Agreement to use the Software and the
Documentation solely for your internal business purposes on the terms and
conditions of this Agreement.
4 LICENSE CONDITIONS
4.1 You must:
a use the Software and the Documentation for lawful purposes only;
b must not copy (except making a single copy for your own back-up
purposes), reproduce, translate, decompile, reverse-engineer, resell, modify,
vary, sub-license or otherwise deal in the Software or the Documentation except:
i as expressly provided for in this Agreement; or
ii to the extent expressly permitted by law;
c ensure the Software and the Documentation are protected at all times
from misuse, damage, destruction or any form of unauthorized use, copying or
d maintain all proprietary notices on the Software and the Documentation;
e not transfer, assign or otherwise deal with or grant a security
interest in the Software, the Documentation or your rights under this Agreement;
f not challenge Sandfly's ownership of (including the Intellectual
Property Rights in) the Software or the Documentation; and
g notify Sandfly in writing immediately after you become aware of any
circumstance which may suggest that any person may have unauthorized knowledge,
possession or use of the Software or the Documentation.
5 TRIAL PERIOD
5.1 Sandfly may make the Software available to you for a free trial (Trial
5.2 Where you download, install, access and/or use the Software under a
free trial, then:
a this clause 5 applies; and
b these Terms apply except to the extent varied in this clause 5.
5.3 The Software is provided to you during the Trial Period on an as is
basis, and, despite any other provision in these Terms, all conditions,
warranties, guarantees and indemnities in relation to the Software are excluded
by Sandfly to the fullest extent permitted by law.
5.4 No Fees are payable for your access and use of the Software during the
Trial Period. You must purchase access to the paid version of the Software you
wish to access and use the Software following expiry of the Trial Period.
5.5 Nothing in these Terms imposes any obligation:
a on you, at the termination or expiry of the Trial Period, to purchase a
license to the Software; or
b on Sandfly:
i at the termination or expiry of the Trial Period, to provide you with a
license to the Software; or
ii to maintain any feature or part of the trial version Software in any
paid version of the Software.
6 SUPPORT SERVICES
6.1 Sandfly will provide you with the Support Services, provided you have:
a paid all Fees due;
b maintained a proper operating environment for the use of the Software
in accordance with any guidance from Sandfly, including in the Documentation;
c complied with this Agreement and the Documentation.
6.2 Where you consider on reasonable grounds that there is a material
failure of the Software to perform in accordance with the Documentation (Issue),
a provide telephone and email support in the form of consultation,
assistance and advice in relation to the Issue; and
b use reasonable efforts to assist in the resolution of the Issue (taking
into account the nature and severity of the Issue).
6.3 The provision of support by Sandfly under section 6.2 is conditional on
a first using reasonable efforts to resolve the Issue by referring to the
b contacting Sandfly during the business hours publicized on its website,
via the support contact details published on its website.
6.4 Sandfly may, at its discretion, from time to time provide you with
Updates, in which case:
a you must promptly install the Update; and
b if you fail to install the Update, Sandfly may, at its option:
i cease providing the Support Services; or
ii increase the Fees with immediate effect by an amount Sandfly considers
reasonable to cover any additional cost of Sandfly continuing to provide the
6.5 New versions of the Software that provide new features or additional
functionality may, at Sandfly's discretion, be subject to payment of an
6.6 Either party may terminate Support Services on 30 days' notice.
7.1 You must pay the Fees to Sandfly.
7.2 Sandfly will provide you with valid tax invoices monthly or annually in
advance for the Fees due in the following month or year, as set out in Sandfly's
quote or otherwise agreed in writing between you and Sandfly.
7.3 The Fees exclude applicable Sales Tax, which you must pay on taxable
supplies under this Agreement.
7.4 You must pay the Fees:
a within 30 days of the date of invoice; and
b electronically in cleared funds without any set off or deduction except
to the extent required by law. If you are required by law to make any
deduction, you must pay Sandfly any additional amount that is necessary to
ensure receipt by Sandfly of the full amount which Sandfly would have received
but for the deduction.
7.5 Sandfly may charge interest on overdue amounts. Interest will be
calculated from the due date to the date of payment (both inclusive) at a rate
equal to the higher of 1% per month and the maximum amount permitted by law.
7.6 Sandfly may increase the Fees by giving at least 30 days' notice. If
you do not wish to pay the increased Fees, you may terminate this Agreement on
no less than 10 days' notice, provided the notice is received by us before the
effective date of the Fee increase. If you do not terminate this Agreement in
accordance with this clause, you are deemed to have accepted the increased Fees.
8 INTELLECTUAL PROPERTY
8.1 From the date of creation or development, Sandfly owns all Intellectual
Property Rights in:
a the Software and the Documentation; and
b any other item or material created, developed or provided by or on
behalf of Sandfly under or in connection with this Agreement.
8.2 If you provide Sandfly with ideas, comments or suggestions relating to
the Software or the Documentation (together feedback):
a all Intellectual Property Rights in that feedback, and anything created
as a result of that feedback (including new material enhancements, modifications
or derivative works), are owned solely by Sandfly; and
b Sandfly may use or disclose any feedback for any purpose.
9.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO
THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. IF THE SOFTWARE PROVES
DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
9.2 WITHOUT LIMITING CLAUSE 9.1, SANDFLY MAKES NO REPRESENTATION CONCERNING
THE QUALITY OF THE SOFTWARE, AND DOES NOT PROMISE THAT THE SOFTWARE WILL BE
ERROR-FREE, BUG-FREE, OR WILL OPERATE WITHOUT INTERRUPTION.
9.3 YOU AGREE AND REPRESENT THAT YOU ARE ACQUIRING THE SOFTWARE, AND
ENTERING THIS AGREEMENT, FOR THE PURPOSE OF A BUSINESS.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW:
a YOU ACCESS AND USE THE SOFTWARE AT YOUR OWN RISK; AND
b SANDFLY IS NOT LIABLE OR RESPONSIBLE TO YOU OR ANY OTHER PERSON FOR ANY
CLAIM, DAMAGE, LOSS, LIABILITY AND COST UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE SOFTWARE, OR YOUR ACCESS AND USE OF (OR INABILITY TO ACCESS
OR USE) THE SOFTWARE. THIS EXCLUSION APPLIES REGARDLESS OF WHETHER SANDFLY'S
LIABILITY OR RESPONSIBILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
EQUITY, BREACH OF STATUTORY DUTY, OR OTHERWISE.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ONLY TO THE EXTENT CLAUSE
10.1 DOES NOT APPLY, THE MAXIMUM AGGREGATE LIABILITY OF SANDFLY UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR RELATING TO THE SOFTWARE, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WILL BE
LIMITED (AT SANDFLY'S OPTION) TO:
a REMEDYING, REPAIRING OR REPLACING THE SOFTWARE; AND/OR
b REFUNDING THE FEES PAID BY YOU IN YOUR MOST RECENT PAYMENT PRECEDING
THE FIRST EVENT GIVING RISE TO LIABILITY.
10.3 WITHOUT LIMITING CLAUSE 10.1, SANDFLY IS NOT LIABLE TO YOU UNDER OR IN
CONNECTION WITH THIS AGREEMENT FOR ANY:
a LOSS OF PROFIT, REVENUE, SAVINGS, BUSINESS, DATA AND/OR GOODWILL; OR
b CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY
11.1 Sandfly may, by notice to you, immediacy terminate this Agreement if
you are in breach of this Agreement.
11.2 On termination of this Agreement you must return to Sandfly or destroy
all copies of the Software and Documentation in your possession or control.
11.3 Termination of this Agreement does not affect each party's rights and
obligations accrued before the termination date, including your obligations to
pay all Fees payable before termination.
11.4 No compensation is payable by Sandfly to you as a result of termination
of this Agreement for whatever reason, and you will not be entitled to a refund
of any Fees that you have already paid.
12.1 Sandfly is not liable to you for any failure to perform its obligations
under this Agreement to the extent caused by events beyond its reasonable
12.2 Any illegality, unenforceability or invalidity of a provision of this
Agreement does not affect the legality, enforceability or validity of the
remaining provisions of this Agreement.
12.3 Any variation to this Agreement must be in writing and signed by both
12.4 This Agreement sets out everything agreed by the parties relating to
the Software and the Support Services and supersedes and cancels anything
discussed, exchanged or agreed prior. The parties have not relied on any
representation, warranty or agreement relating to the Software and the Support
Services that is not expressly set out in this Agreement, and no such
representation, warranty or agreement has any effect.
12.5 This Agreement is governed by, and must be interpreted in accordance
with, the laws of New Zealand. Each party submits to the non-exclusive
jurisdiction of the Courts of New Zealand in relation to any dispute connected
with this Agreement.