Enov8 License Terms

As of 1st January 2023

These Enov8 Subscription Terms (collectively, the “Agreement”) between Enov8 Limited, an Australian corporation, with its principal place of business at 2/389 George Street, Sydney, NSW, Australia, 2000 (“Enov8”, “we”, “us” or “our”) and you (“Customer”, “you” or “your”) applies to your use of the Software (as defined below). By clicking on the designated button, entering an Order Form (as defined below), or by downloading, installing, accessing or using the Software, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of your organization or entity, you represent that you have the authority to bind such organization or entity, and the terms “Customer”, “you” and “your” will refer to such organization or entity. If you do not agree to the terns of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not download, install, access or use the Software. “Software” means the downloadable and/or online software products that are specified in the applicable Order Form, and subsequent updates thereto made generally available by Enov8 under this Agreement.

1. Software License

1.1. License Grant. Enov8 grants Customer a limited, non-transferable, non-sublicensable right and license to use the Software for internal business purposes, in accordance with the Documentation during the applicable License Term. The License Term is defined as the duration of the subscription or license to the Software as specified in the applicable Order Form. The number of License Units is determined by Enov8 and specified in the Order Form. The Order Form is an integral part of this Agreement and sets forth the Software or Services, fees and payment terms, and start and end dates, and is entered into between Customer and Enov8 or an authorized reseller.

1.2. Restrictions on Use. Customer must not sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, outsource, generate income from, or use the Software in a service provider environment or for commercial use without Enov8’s prior approval. Customer must not copy the Software onto a public or distributed network except for an internal and secure cloud computing environment. Reverse engineering or decompiling any part of the Software, modifying or creating derivative works, or modifying any proprietary rights notices is prohibited. The Software may only be used in accordance with applicable laws and regulations and within the scope of the license grant. Using the Software for certain prohibited activities, collecting or transmitting prohibited data, performing penetration testing, or using the Software for competitive analysis is not allowed. Finally, the export of the Software is subject to certain restrictions and customer must obtain any necessary governmental authorizations and approvals.

1.3. Free Trial. If the Software is provided to Customer on a limited trial or beta basis for evaluation purposes, Customer agrees that such use and access of the Software is governed by this Agreement. Enov8 has the right to modify the Software provided for a Free Trial at any time without notice to Customer, and Enov8 has no obligations to provide warranty, indemnity, maintenance, or support to Customer with respect to any such Free Trial. Customer may only use the number and type of License Units for the specified duration indicated by Enov8 prior to Customer accessing the Software with respect to any such Free Trial. Enov8 may revoke and terminate any Free Trial at any time without any notice to Customer. Customer agrees to provide feedback related to the Software as reasonably requested by Enov8 with respect to any Free Trial. A Free Trial is not a guarantee of future Software or Enov8 product features and should not be relied upon by Customer in making any purchasing decisions.

1.4. Unauthorized Use. Customer shall notify Enov8 promptly of any unauthorized use or access of the Software (including unauthorized users or unauthorized disclosure of any password or account), or any other known or suspected breach of security or misuse of the Software. Customer is responsible for use of the Software (and all other acts or omissions) by its employees, contractors, Affiliates or other users that it allows to use or access the Software.

1.5. Support. During the License Term, Enov8 shall provide support to Customer in accordance with Enov8’s then-current support policy, and as identified in an Order Form. In the event that the level of support is not identified in the Order Form, Customer shall receive a “standard” level of support that is included with the Software at no additional cost. For any support tier above standard support, the applicable support fees will be a percentage of all of Customer’s Software-based fees, and will be prorated for mid-year expansions based on the remaining months in the then current Initial Term or Renewal Term. Further, Customer agrees to facilitate any connections and access necessary for Enov8 to (i) deliver, deploy and provide the Software as provided hereunder and (ii) to perform its obligations hereunder (including any support obligations). Notwithstanding anything to the contrary in this Agreement, Enov8 has no warranty, indemnity or other obligation or liability with respect to modifications made to the Software or Documentation (as defined below) by Customer or on Customer’s behalf other than the generally available updates provided by Enov8.

1.6. Purchasing Through Authorized Resellers. If you purchase a subscription to the Software or any Services through a Enov8 authorized reseller, this Agreement and any agreed upon usage limitations will govern the use of such Software and Services unless otherwise agreed by Enov8 and Customer. You also agree that Enov8 is an express third party beneficiary of your agreement with any authorized reseller. Your payment obligations for the Software and Services will be with the authorized reseller, not Enov8, and you will have no direct fee payment obligations to Enov8, provided that Enov8 may terminate this Agreement if you breach any of your payment obligations to such authorized reseller for the Software and Services. Any terms agreed to between you and the authorized reseller that are in addition to or inconsistent with this Agreement are solely between you and the authorized reseller. No agreement between you and an authorized reseller is binding on Enov8, nor will it have any force or effect with respect to the rights in, or the operation, use or provision of, the Software or Services.

1.7. Contractors and Third Party Providers. You may permit your authorized consultants, contractors, and agents (“Third Party Providers”) to access and use the Software, but only on your behalf in connection with providing the Software to you, and subject to the terms and conditions of this Agreement. Any access or use by a Third Party Provider will be subject to the same limitations and restrictions that apply to you under this Agreement, and you will be responsible for any Third Party Provider’s actions or omissions relating to its use of the Software. The aggregate use by you and all of your Third Party Providers must not exceed the allotted License Units (without paying the overage fees set forth in Section 2.1), and nothing in this Section is intended to or will be deemed to increase such License Units.

1.8. Services. Enov8 will make commercially reasonable efforts to provide the Services as described in the applicable Order Form or SOW. Enov8 retains all right, title and interest in the deliverables and results of the Services but grants Customer a limited, non-transferable right and license to use them for internal business purposes only. Services will be provided upon payment of the applicable fees and will be subject to the agreed-upon fees set forth in the applicable Order Form or SOW. Enov8 will not charge in excess of the total time purchased without prior written approval from Customer. If Customer does not purchase additional Services, Enov8 will stop providing Services. Customer must reasonably cooperate with Enov8 and reimburse Enov8 for travel and expenses incurred in providing Services. Services will be performed on weekdays during business hours, excluding national holidays. If Customer cancels or delays scheduled Services, they will be responsible for paying for any canceled or delayed Services, and reimbursing Enov8 for any expenses incurred. Customer agrees not to solicit any Enov8 employees who performed the Services for twelve months after the License Term or the applicable SOW, unless Enov8 consents in writing. Services refer to any professional services described in the applicable Order Form or SOW.

1.9. Customer Affiliates. Customer Affiliates may purchase and use the Software and Services subject to the terms of this Agreement by executing Order Forms or SOWs hereunder that incorporate by reference the terms of this Agreement. In each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form(s) or SOW(s), and Customer Affiliate agrees to be bound by this Agreement. “Affiliate” means, with respect to Enov8 or Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with Enov8 or Customer, respectively. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

2. Fees

‍2.1. Pricing. You agree to pay all fees specified in the Order Form and/or SOW. Fees are non-cancelable, non-refundable, and due within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form. Payments must be made through ACH or wire transfers, unless otherwise agreed by Enov8. Fees do not include customizations of the Software or support for any such customizations, unless agreed in writing. If your use of the Software exceeds the number of License Units in the Order Form, you will be billed for those overages. Enov8 may audit your use of the Software (not more frequently than twice per calendar year) and require that you provide relevant records to determine if your use exceeds the number of authorized License Units. Fees are fixed during the Initial Term unless you purchase additional License Units. Overdue payments may result in late fees or suspension of access to the Software and/or Services. You must provide accurate billing and contact information, and Enov8 is not responsible for any invoices not received due to inaccurate or missing information provided by you.

2.2. Credit Cards. If Enov8 authorizes you to pay by credit or debit card in writing, you: (i) will provide Enov8 or its designated third-party payment processor with valid credit or debit card information; and (ii) hereby authorize Enov8 or its designated third-party payment processor to charge such credit or debit card for all items listed in the applicable Order Form or SOW or as otherwise agreed by the parties. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order Form or SOW (if applicable). You are responsible for providing complete and accurate billing and contact information and notifying Enov8 in a timely manner of any changes to such information.

2.3. Taxes. The fees paid by Customer are exclusive of all taxes, levies, or duties (“Taxes”) imposed by taxing authorities if any, and Customer shall be responsible for payment of all such Taxes, excluding taxes based on Enov8’s income. Customer represents and warrants that the billing and contact information provided to Enov8 is complete and accurate, and Enov8 shall have no responsibility for any invoices that are not received due to inaccurate or missing information provided by the Customer.

2.4 Future Pricing

The agreed pricing, including discounts, is relative to RRP (Recommended Retail Price) at “date of purchase”. Assuming no “significant” changes in volume, Enov8’s annual subscription renewals will retain this pricing model for a period of 24 months. Post 24 months the pricing will go through a fair “True Up”.

3. Confidentiality

‍3.1. Confidential Information and Restrictions.

Confidential Information refers to information that is disclosed by the Disclosing Party to the Receiving Party, orally or in writing, that is designated as “confidential” or “proprietary”, or that should reasonably be understood to be confidential given the nature of the information or circumstances surrounding its disclosure. Confidential Information does not include information that is already publicly known, previously known to the Receiving Party, received from a third party without any obligation of confidentiality, or independently developed by the Receiving Party.

The Receiving Party agrees to use the Confidential Information only for purposes related to this Agreement and to not disclose it to anyone except its Affiliates, employees, consultants, agents, and professional advisers who have a “need to know” for the Receiving Party to fulfill its obligations. The Receiving Party must also take reasonable measures to protect the confidentiality of the Confidential Information, and shall be held liable for any breach by its Representatives.

If the Receiving Party is legally required to disclose the Confidential Information, it will give written notice to the Disclosing Party, permit the Disclosing Party to intervene in any proceedings, and provide full cooperation to help obtain protection. This Section 3 will not apply to information that the Receiving Party can document was rightfully in its possession prior to receipt, or became publicly available without the Receiving Party’s involvement, was received from a third party without any confidentiality obligation, or was independently developed by the Receiving Party’s employees without access to the Confidential Information.

3.2. Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.

3.3. Feedback. Customer acknowledges and agrees that (a) any questions, comments, suggestions, ideas, feedback or other information about Enov8, the Software, the Services, the Documentation or other materials provided by Enov8 (collectively, “Feedback”) provided by Customer are non-confidential, (b) Enov8 will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality, and (c) Enov8 will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4. Proprietary Rights

‍Enov8 owns all proprietary rights, including copyrights, patents, trademarks, trade secrets, and other intellectual property rights, in the Software, Services, Documentation, and any materials created by Enov8. Customer acknowledges that this Agreement does not grant ownership or title of the Software, in whole or in part. The FOSS Software and Third Party Software included with the Software are not considered part of the Software under this Agreement, and their use, reproduction, and distribution are governed by their respective open source software licenses. Enov8 will provide a list of such software upon request. Third Party Software suppliers are third party beneficiaries of this Agreement. The Software and Third Party Software can only be used as instructed in the Documentation made available by Enov8. Enov8 is not responsible for any acts or omissions of third parties, including their access to Customer data or the performance of the Software in combination with Third Party Software.

5. Term and Termination

‍The Agreement will begin on either the start date of the first Order Form or when you first use the Software, and will continue until terminated. Termination of an Order Form will not affect the rest of the Agreement or any other Order Form. Each Order Form is valid from its start date through its initial end date, and will renew automatically for twelve (12) month terms, unless either party gives thirty (30) days’ notice of non-renewal. You have the right to terminate this Agreement upon thirty (30) days’ written notice for any reason, or immediately for material breach, insolvency, or bankruptcy-type events. Upon termination, you must destroy any copies of the Software and return or destroy Enov8’s Confidential Information. Certain payment obligations and sections survive termination.

6. Warranties

‍6.1. Software Warranty. Enov8 warrants that during the first thirty (30) days after the beginning of a License Term under the applicable Order Form, the Software will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable version of the Software. Enov8’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for a breach of this warranty shall be that Enov8 will use commercially reasonable efforts to repair or replace the Software to conform in all material respects to the Documentation, and if Enov8 is unable to materially restore such functionality within thirty (30) days from the date of written notice of breach of this warranty by Customer, Customer shall be entitled to terminate the applicable Order Form upon written notice to Enov8, and Enov8 shall promptly provide a pro-rata refund of the subscription fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). To be eligible for the foregoing remedy, Customer must notify Enov8 in writing of any warranty breaches within such warranty period, and Customer must have installed (if applicable), used and configured the Software in accordance with this Agreement and the Documentation.

6.2. Disclaimer. The Software, Documentation, Services, Maintenance and Support are provided “as is” except as expressly provided in this section. Enov8 and its suppliers do not provide any other representations and warranties, either express, implied, statutory, or otherwise, including any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement, or the continuous, uninterrupted, error-free, virus-free, or secure access to or operation of the Software. Enov8 disclaims any warranty as to the accuracy or completeness of any information or data accessed or used with the Software, Documentation, Services, Maintenance or Support. Enov8 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. The Software, Services, and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Software is not designed for use in High Risk Use environments including without limitation, aircraft operation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. Enov8 expressly disclaims any express or implied warranty or representation of fitness for High Risk Use. Enov8 shall not be liable to Customer for any loss, damage or harm caused by Customer’s unauthorized use of the Software to process Prohibited Data.

6.3. Mutual Warranty. Each party hereby represents and warrants to the other that: (a) such party has the right, power, and authority to enter into this Agreement and to fully perform all of its obligations hereunder; and (b) entering into this Agreement does not and will not violate any agreement or obligation existing between such party and any third party.

6.4. Beta Software. Enov8 may offer the Customer the option to participate in a program to access alpha or beta software, services, products, features, and documentation (collectively, “Beta Software”). The Beta Software is not generally available and may contain bugs, errors, defects, or harmful components. Enov8 provides the Beta Software to Customer “as is” and makes no warranties of any kind, whether express, implied, statutory, or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement, and has no indemnity or other obligation or liability with respect to Beta Software. Enov8 does not guarantee that the Beta Software will meet any specified service level or will operate without interruptions or downtime.

7. Indemnification

‍7.1. By Enov8. Enov8 agrees to defend, at its expense, Customer against (or, at Enov8’s sole option, settle) any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark, or trade secret of a third party, and Enov8 shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in Enov8’s sole opinion is likely to become, subject to such a claim, Enov8, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for Customer’s continued use of the applicable Software, or (c) terminate the applicable Order Form and provide a pro-rata refund of the subscription fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). The foregoing indemnification obligation of Enov8 will not apply: (1) if the Software is or has been modified by Customer or its agent; (2) if the Software is combined with other non-Enov8 products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software or breach of this Agreement; or (4) if Customer fails to install or use any functionally equivalent non-infringing Software that would have avoided the alleged infringement. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement of third-party intellectual property rights.

7.2. By Customer. Customer agrees to defend, at its expense, Enov8 and its Affiliates, its suppliers and its resellers against any third party claim to the extent such claim alleges, arises from, or is made in connection with Customer’s breach of Section 1 (Software License) or Section 10 (Data Collection), any High-Risk Use, or Customer’s negligence or willful misconduct. Customer shall pay all costs and damages finally awarded against Enov8 by a court of competent jurisdiction as a result of any such claim.

7.3. Indemnification Requirements. In connection with any claim for indemnification under this Section 7, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 7, except to the extent that such failure materially prejudices the indemnifying party’s defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind either party shall not be final without the other party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer’s consent shall not be required when Enov8 is the indemnifying party if the settlement involves only the payment of money by Enov8.

8. Limitation of Liability

‍The limits below will not apply to the extent prohibited by applicable law. EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTION 1.2 (RESTRICTIONS ON USE) AND PAYMENT OBLIGATIONS,UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER INDIRECT DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT OR CLAIM UNDER THE APPLICABLE ORDER FORM OR SOW. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

9. Force Majeure

‍Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.

10. Data Collection

‍Enov8’s software stores sensitive data related to the customer’s software delivery processes in encrypted form, such as passwords, keys, and credentials. Additionally, Enov8 collects data on the customer’s use of the software, including logs, performance monitoring, and test results. If the customer provides Enov8 with any personally identifiable information, they represent and warrant that it has been collected in compliance with applicable data protection laws and that they have the necessary consents. Enov8 has the right to collect and analyze data related to the software’s provision and use and may use such information to improve and enhance the software and for other purposes. Enov8 will use physical and electronic safeguards to protect all data in its possession according to industry standards.

11. Miscellaneous

‍This Agreement will be governed by the laws of the State of New South Wales, Australia. The parties agree to the exclusive jurisdiction and venue of the courts located in and serving Sydney, New South Wales. Failure to exercise any rights or enforce any provision of this Agreement will not waive or forfeit those rights or the ability to enforce the provision. If any provision of this Agreement is illegal, invalid, or unenforceable, it will be amended to achieve the same economic effect as the original provision, and the remainder of the Agreement will remain in effect. This Agreement, including each Order Form and SOW, supersedes any prior oral or written agreements or communications regarding its subject matter. The person accepting this Agreement on behalf of Customer represents that they are duly authorized to do so. The Uniform Computer Information Transactions Act and the United Nations Convention for the International Sale of Goods do not apply to this Agreement. This Agreement will control over additional or different terms of any other document, and waivers and amendments will be effective only if made in non-pre-printed agreements clearly understood by both parties to be an amendment or waiver. All capitalized terms not defined in an Order Form or SOW will have the meanings provided in this Agreement. The rights and remedies of the parties will be cumulative and not exclusive. No joint venture, partnership, employment, or agency relationship exists between the parties. Enov8 reserves the right to perform its obligations from locations and/or through use of Affiliates, contractors, and subcontractors, worldwide. Customer may not assign this Agreement without Enov8’s written consent, and any purported assignment in violation of this Agreement is void. Enov8 may assign, transfer, or subcontract this Agreement without Customer’s consent. Upon any assignment of this Agreement by Customer that is approved by Enov8 or other corporate transaction involving Customer that would materially increase its Licensee Unit usage, if the Order Form contains a subscription for an “unlimited” amount of Licensee Units, such subscription will be capped at the monthly average of authorized Licensee Units used by Customer under such Order Form during the three full calendar months prior to such assignment. Enov8 may refer to Customer by its trade name and logo and may briefly describe Customer’s business in Enov8’s marketing materials and website. Additionally, Customer and Enov8 shall collaborate in good faith for co-marketing activities contingent on a successful deployment of the Software. Notices under this Agreement may be given by electronic mail, written communication, or letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail. Enov8 may update this Agreement from time to time by providing prior written notice of material updates at least thirty (30) days in advance of the effective date. Updates will be effective upon the effective date indicated or in such notice. Continued access or use of the Software or Services after the effective date constitutes acceptance of the updates. If a subscription to the Software is paid, updates will be effective upon the next Renewal Term, if applicable. If the updates are objected to, the sole remedy is to choose not to renew in accordance with the terms hereof.