NOTIFICATION OF COPYRIGHT AND LICENSE AGREEMENT | ContentKeeper

Product: ContentKeeper Introduction Version: 190.06 Description: NOTIFICATION OF COPYRIGHT AND LICENSE AGREEMENT
NOTIFICATION OF COPYRIGHT AND LICENSE AGREEMENT
NOTIFICATION OF COPYRIGHT AND LICENSE AGREEMENT (VERSION 3.1 18TH JULY 2018 DW    CK-ELUA.DOC )
 
THIS SOFTWARE PROGRAMME  ("Software") IS A PROPRIETARY PRODUCT OF CONTENTKEEPER TECHNOLOGIES PTY.LTD.  A COMPANY INCORPORATED IN AUSTRALIA. THIS SOFTWARE AGREEMENT APPLIES TO POSSESSION AND/OR USAGE OF ANY CONTENTKEEPER SOFTWARE OR SERVICE  HOWEVER OBTAINED, INCLUDING BUT NOT LIMITED TO SOFTWARE LOADED ON AND/OR OPERATING ON ANY CONTENTKEEPER OR OTHER 3 PARTY APPLIANCE OR HARDWARE DEVICE OR ANY CLOUD SERVICE PROVIDED BY CONTENTKEEPER OR VIA ANY 3 PARTY PROVIDER. THE SOFTWARE IS PROTECTED BY COPYRIGHT AND OTHER LAWS. COPYRIGHT LAWS PROHIBIT MAKING AND/OR SELLING ANY ADDITIONAL COPIES OF THE SOFTWARE AND COPYING THE WRITTEN MATERIALS ACCOMPANYING THE SOFTWARE. SOFTWARE LICENSE AGREEMENT - TERMS AND CONDITIONS THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU THE ("LICENSEE") AND CONTENTKEEPER TECHNOLOGIES GOVERNING YOUR USE OF THE SOFTWARE. USING THE SOFTWARE INDICATES YOUR UNDERSTANDING AND ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY RETURN THE COMPLETE SOFTWARE PACKAGE AND/OR ANY CONTENTKEEPER HARDWARE DEVICE CONTAINING THE SOFTWARE TO THE DEALER FROM WHOM YOU OBTAINED THE PRODUCT(S). IN THE CASE OF THE CONTENTKEEPER SOFTWARE BEING DOWNLOADED FROM AN INTERNET WEB SITE, OR OBTAINED THROUGH ANY OTHER MECHANISM, YOU MUST DELETE AND DESTROY ANY COPIES OF THE SOFTWARE IN YOUR POSSESSION. IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, PLEASE CONTACT THE LEGAL OFFICER: ContentKeeper Technologies, 218 Northbourne Avenue Braddon, Canberra, ACT, Australia 2612, PH +61-2-6261-4950, Fax +61-2-6257-9801, Email: info@contentkeeper.com (mailto:info@contentkeeper.com), Web: contentkeeper.com 1.  DEFINITIONS CKT means ContentKeeper Technologies Pty. Ltd. of 218 Northbourne Ave Braddon ACT Australia 2612 ACN: 079 874 481. Software means software developed by CKT. RD RD
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Service  means access to and/or the provision of the filtering, site and security database and update services, provision of this license to use the CKT Software, and access to the CKT automated software update services and/or other related CKT services, including CKT cloud based services. Product means the Software and the Service(s) and any hardware Device (if any) supplied by CKT to Licensee to run the Software and/or access to any CKT provided cloud services. Intellectual Property Rights means any proprietary right in existence during the term of this agreement including those provided under copyright law, trademark law, patent law, common law, trade secret law or any other statute that may infer any type of ownership and/or rights applicable to the Product including those rights applicable to concepts, inventions, know-how, formulas, ideas, algorithms and methodologies. Domestic Use the provision of a filtering service by an Internet Service or Hosting Provider to domestic residential households ONLY. Non Domestic Use includes all other use of the Software and/or services, including, but not limited to use by an Internet Service Provider and any other individual or organization to provide a filtered service to any person and/or any entity. Evaluation Period is a once off, maximum period of 30 days from the date of installation during which time the Product may be utilized to determine its suitability for use by that person and/or organization. Evaluation Licensee means a licensee who has obtained the Product for the sole purpose of evaluating the Product and Service during the Evaluation Period with a view to subscribing to the Service.  ISP – Internet Service Provider, an organization in the business of providing Internet access to its customers. An ISP for the purposes of this agreement must have a minimum of 100 domestic household and/or commercial customers to qualify as an ISP. Subscription Service Fee. The Subscription Service Fee is an annual fee or monthly fee paid by the licensee in consideration for the Licensee’ use of the Product. Subscription Period is a period of 12 months or 1 month starting from the date the subscription service fee is paid to CKT and continuing for additional periods of 12 months or 1 month (as appropriate) while the Licensee continues to pay the Subscription Service Fee to CKT or until the Agreement is terminated by either party. Due Date is the date on which the initial Subscription Service Fee is paid by the Licensee to CKT and each subsequent anniversary of that date until this agreement is terminated by either party. Confidential Information includes, but is not limited to the terms and conditions of this agreement, the Software, the Site List and the methodologies utilized within the Product. Subscription Service Fee is the current annual or monthly fee quoted by CKT for use of the Service and is net of any taxes, withholding taxes, duties, levies or any other government charges. Device means any hardware computing platform. 2.  GRANT OF LICENSE AND PROVISION OF SERVICES LICENSE ContentKeeper Technologies in consideration of the payment made by the Licensee to CKT of the ANNUAL or MONTHLY Subscription Service Fee hereby grants to the Licensee a non-exclusive, non-transferable license to use the Software, only during the Subscription Period and only for the purpose of utilizing the CKT Service to provide Internet filtering security and control services to the number of end users or Devices licensed by CKT to receive the Service, in accordance with the terms and conditions outlined in this Agreement. 3.  PAYMENT Payment of the Subscription Service Fee by the Licensee to CKT on or before the Due Date is of the essence of this agreement. Without prejudice CKT may terminate this agreement if the Licensee fails to pay the full Subscription Service Fee and any other amounts due, on or before the due date. The Licensee also agrees to pay CKT interest at the rate of 12% per annum on any amounts outstanding under this agreement that remain unpaid
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for any period greater than 45 days and any reasonable costs incurred by CKT in the recovery of any amount(s) due. ContentKeeper reserves the right to change the amount of the Subscription Service Fee on or before the anniversary date without notice. 4.  EVALUATION If you have downloaded or otherwise obtained the Software/Product for evaluation ContentKeeper Technologies hereby grants to you, in accordance with the terms and conditions outlined in this Agreement, a non-exclusive, non-transferable license to use the Software during the Evaluation Period ONLY. This grant is limited to one such grant per organization unless prior, express written approval is given to the organization by CKT. At the conclusion of the Evaluation Period you must, either delete the Software or Return to CKT or its Reseller any Product or copies of the Software obtained or, alternatively Subscribe to the Service by paying the Subscription Service Fee and any other fees due to CKT. 5.  BLOCKING AND CONTROL SCREENS Licensee hereby agrees to use ContentKeeper’s default blocking screen which clearly states that the blocking has been provided by ContentKeeper or if an alternative blocking screen is utilized, that screen must contain the following text in the left hand bottom corner of the blocking screen in bolded font of no less that 9 points: BLOCKED BY CONTENTKEEPER CONTENTKEEPER.COM 6.  GENERAL a. Licensee may install the Software on as many Devices as required to provide filtering services to the number of end users or end user Devices licensed by CKT to receive the Service. b. Licensee hereby grants CKT network connectivity access to the Product solely for the purposes of providing the Service (the Service includes bi-directional network traffic to facilitate URL, site & Security database and Software updates as well as Software and Device management and support services). Licensee hereby agrees to maintain the Software at a version no older than the current released version minus two releases. CKT reserves the right to cancel the service if the Licensee does not wish to upgrade the Software to the either the current released version or the current released version minus two releases after 1 months notice given by CKT. CKT reserves the right and the Licensee hereby acknowledges that right to change and or modify the software at any time and without notice to the Licensee. c. Licensee hereby grants CKT the right to audit Licensee’s use of the software either remotely or on-site to confirm Licensee compliance with this Agreement and Licensee’s subscription usage level. This grant also includes reasonable access to Licensees’ premises, if requested by CKT, during normal business hours to confirm compliance and/or to undertake support services. d. Licensee’s right to use the Software and Services shall cease on the date that the Licensee’s Subscription to the CKT Service expires. Upon expiration, the Licensee must delete and destroy any copies of the Software and cease using the Product and Service. In the case of the usage of any Appliance, that Device must be disconnected from any network and cease to be used by the Licensee for any filtering or reporting purposes within 20 days of the expiry of the Subscription Period. 7.  COPYRIGHT OWNERSHIP AND CONFIDENTIALITY a. The Software contains Confidential Information of ContentKeeper Technologies and all copyright, trademarks design rights (registered or unregistered) and other intellectual property rights in the Software, and any translations, modifications, derivatives (whether authorized or unauthorized), are and remain the exclusive property of ContentKeeper Technologies. Intellectual Property Rights includes, without limitation, any rights arising from or capable of arising from the Circuits Layout Act 1989 (Commonwealth); the Copyright Act 1968 (Commonwealth); the Designs Act 1906 (Commonwealth); the Patents Act
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1990(Commonwealth); the Trade Marks Act 1995(Commonwealth); any unregistered trade marks or designs; Confidential Information; and any Commonwealth or international legislation similar to that legislation listed in this clause. b. Licensee must not: i. Make copies of the Software and accompanying written material other than for the purpose of backup and providing the filtering service to the number of users and/or Devices licensed by CKT. Licensee will ensure that such copies bear notice of CKT’s ownership of copyright and that the Software contains information confidential to CKT. ii. Reverse engineer, decompile, disassemble, or create derivative works based on the Product, the Software, the site lists and/or the service. The Licensee is warned that the Software may include a mechanism which will log such attempts and destroy its operational logic if an attempt is made to tamper with it. ContentKeeper Technologies accepts no responsibility if such a mechanism is activated. iii. Rent, lease, sub-license, assign or transfer the Software or any part of it iv. Provide access to the Software administration interface to any 3rd party or provide any information relating to the Product that is not generally available on CKTs website to any party that would be reasonably considered to be a competitor or a representative of a competitor to CKT. v. The Licensee must not use the Software and its associated Services for any purpose other than to provide the Service to the number of users and/or Devices licensed by CKT to receive the Service. 8. WARRANTY a. ContentKeeper Technologies warrants that it has the rights and title to, and owns the property in the Software. b. ContentKeeper Technologies give no warranties and makes no representations whatsoever that the Software will be suitable or fit for any particular purpose, or for use in any particular networking environment, or under any particular conditions notwithstanding that such purpose or condition may be known or have been made known to CKT. c. CKT gives no warranties that the operation of the Software or the Product will not be interrupted or will be error free. The Licensee hereby acknowledges that it has accepted the Software and/or Product on an “as is” basis and has relied solely on its own investigations to determine the suitability of the Software and/or Product for Licensee’s purposes. d. Licensee hereby agrees to indemnify CKT, its distributors, resellers and agents against any legal action initiated by Licensee or any 3rd party for any costs, direct, indirect, consequential, special, collateral, or any other type of losses or damages, loss of profit, loss of data, loss of privacy, loss of access to any sites, losses caused by access to any site, stoppage or impairment of work, loss of goodwill, or loss of network connectivity, or any other losses, costs or expenses relating to the operation of the Product and any related Devices within the Licensee’s organization and/or networked environment. e. The Licensee hereby agrees that under any circumstances whatsoever, the total liability of CKT to the Licensee or any 3rd party in respect of the Software and/or Services and any of the provisions of this agreement shall be limited to an amount less than or equal to the annual Subscription Service Fee paid by the Licensee to CKT for the provision of the Software and Services. f. CKT makes no representation about the legality of monitoring or using the Software and/or Product in the Licensee’s or any other jurisdiction, and the Licensee hereby declares that it has used its own judgment to verify that the proposed use of the Product complies with any applicable laws, regulations and/or privacy rights. g. Licensee hereby acknowledges that Licensee is fully aware that the Software is a filtering application and as such may or may not block and/or operate on particular Internet sites, Internet protocols, traffic and/or files. h. Subject to the above, all conditions, warranties, terms and undertakings expressed or implied statutory or otherwise in respect of the Software are hereby excluded, except to the extent that such disclaimers are
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held to be legally invalid. 9. TERMINATION a. This Agreement shall be terminated forthwith by ContentKeeper Technologies if the Licensee commits any material breach of the terms of this Agreement. b. This Agreement will terminate at the end of the Subscription Period or if the Subscription has been renewed, at the end of any subsequent Subscription Period. c. If the Licensee is in breach of this Agreement, immediately following the termination of this Agreement the Licensee shall destroy or return to ContentKeeper Technologies all originals and copies of the Software and the Program Documentation in its possession. The Licensee must also cease using and disconnect any Devices used to facilitate the running of the Software from any Internet connected network. d. This agreement will terminate immediately if the Licensee becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration, winding up and or dissolving. 10.  APPLICABLE LAW This agreement shall be governed by either the laws of the ACT and the Commonwealth of Australia, or at CKT’s sole discretion the laws that are in force in the jurisdiction in which Licensee resides. In the event of any dispute arising out of this agreement the parties hereby agree to submit to the jurisdiction of that court. 11.  ENTIRE AGREEMENT This agreement constitutes the entire agreement between the parties in relation to the Software and/or Product. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional items of any quote, order, acknowledgment or other communication between the parties. Except for those changes referred to above in this agreement, no modification or additions to this agreement will be binding unless in writing and signed by an authorized representative of both parties. 12.  INTERPRETATION In this agreement, unless the contrary intention appears, words in the singular include the plural and vice versa, words importing a gender include the other gender, a reference to a person includes a partnership and a body corporate or any other business or non business organization. Headings to clauses are included for convenience and will not affect the interpretation of the clauses to which they relate. 13.  INVALIDITY If any one or more of the provisions of this agreement are found to be invalid or unenforceable in any respect by a government authority or competent jurisdiction, the enforceability and legality of the remaining provisions, or portions of provisions shall not be impaired or affected in any way. The parties hereby agree that CKT may replace those provisions with a valid provision having essentially the same effect in relation to financial and Intellectual property rights and any specified privacy rights. 14.  NOTICES All notices relating to this agreement must be delivered in writing via normal postal services or facsimile to the address listed above for CKT and to the registration address provided by Licensee or the Licensee’s last known address (for the Licensee). Notices may also be considered to be delivered if sent via email by an authorized officer of one party to an authorized officer of the other party, if the authorized officer of the receiving party has confirmed its receipt by return email. 15.  EXPORT REGULATIONS
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The Product contains technologies which may come under the control of the Australian Government, the United States Government, the UK Government and/or other International authorities export control regulations. Licensee hereby agrees to comply with any such regulations and hereby indemnifies CKT against any loss or damages incurred by CKT as a result of Licensee’s actions in contravening those regulations. 16.  WAIVER The failure of a party at any time to enforce its rights under this agreement is not a waiver of that party’s rights or a waiver of the other parties obligations under this agreement. 17.  FORCE MAJEURE Except for obligations to pay amounts due and the Licensee’s obligations in relation to the protection of CKT’s Intellectual Property, neither party is liable for any failure to perform or delay in performing its obligations under this agreement if the failure or delay is due solely to events beyond that parties reasonable control, including but not limited to: a. acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; b. acts of war, act of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and industrial strikes. If such an event or delay extends beyond 60 days the other party may terminate this agreement with immediate effect by delivering a written notice to the other party as outlined in clause 9 above.