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TERMS OF USE
AND PRIVACY POLICY

TERMS OF USE AND PRIVACY POLICY

 

Evolve provides the Evolve Platform, which is an online security automation platform that enables users to receive security automation services from Evolve as well as access to third party security modules, feeds and other tools.

This Agreement sets out the terms and conditions on which Evolve will provide the Customer with access to and use of the Evolve Platform and otherwise provide the Services to the Customer. By clicking the ‘I accept’ button or otherwise confirming the Customer’s acceptance of this agreement electronically or the Customer commencing use of the Evolve Platform, the Customer agrees that it has read, understood and will be bound by this agreement together with any Service Specific Terms and any notices posted by Evolve on the Evolve Website from time to time pursuant to this agreement (collectively, Agreement).

If you are entering into this Agreement as an agent, officer, employee or other representative of the Customer, you warrant to Evolve that you have full legal authority to bind the Customer to this Agreement.

 

  1. Definitions and interpretation
    • 1.1 Definitions
    • In this Agreement, unless the context otherwise requires:
      • Access Services means providing the Customer and the Authorised Users with access to and use of the Evolve Platform and the Documentation.
      • Authentication Credential means the username and password or other means of authentication which Authorised Users are required to provide in order to be able to access the Evolve Platform.
      • Authorised Users means the employees, officers, agents, contractors and representatives of the Customer which are authorised by the Customer to access and use the Evolve Platform.
      • Automated Testing Services means the automated testing services set out at https://evolve.threatintelligence.com/evolve-solutions/.
      • Commencement Date means the date the Customer registers for an Evolve Account and accepts this Agreement.
      • Confidential Information means any information provided by a party to the other party (whether provided before or after execution of this Agreement) in connection with the Services or this Agreement (and in the case of Evolve, includes the Documentation or any other information regarding the Evolve Platform) but does not include information which is in or becomes part of the public domain, other than through a breach of this Agreement or of an obligation of confidence, or information which a party proves was independently acquired or developed without breaching any of the obligations set out in this Agreement.
      • Consequential Loss means:
        i. any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, loss of data and loss of opportunity; and
        ii. any loss beyond the normal measure of damages.
      • Customer means the person or entity who registers with Evolve for an Evolve Account.
      • Customer Infrastructure means the computer servers, networks, other information technology hardware, platforms, systems and applications owned or operated by the Customer and in respect of which any Services are to be provided.
      • Data means the information and data:
        i. collected or generated during Evolve’s provision of the Services and includes Threat Data; and
        ii. provided by the Customer to Evolve or transmitted by the Customer to Evolve in connection with the provision of the Services.
      • Documentation means any manuals, guides, reference materials or other similar documents in any form made available by Evolve to the Customer in connection with the Evolve Platform or the Services.
      • Evolve means Threat Intelligence Pty Ltd (ACN 156 362 300) trading as ‘Evolve’ of Level 4, 11 York Street, Sydney, New South Wales, 2000.
      • Evolve Account means the account that a Customer registers for in order to be able to use the Evolve Platform.
      • Evolve Platform means the security automation platform which is made available by Evolve for the use by the Customer or its Authorised Users from time to time including any Update to that platform implemented by Evolve pursuant to clause 5 and any Improvement to that platform supplied to the Customer by Evolve.
      • Evolve Policies means the then current policies of Evolve regarding the use of the Evolve Platform, as Evolve may notify the Customer of from time to time during the Term.
      • Evolve Website means the website located at https://evolve.threatintelligence.com or the website located at such other URL that Evolve notifies the Customer of from time to time.
      • Fees means the fees payable for the Services as specified in the relevant Service Specific Terms and any fees or other amounts payable by the Customer to Evolve under this Agreement.
      • Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it other than a lack of funds and includes war (declared or undeclared) civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing internet or telecommunications outage or impairment.
      • Improvement means any modification, alteration, development, new use or other change to the Evolve Platform which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way preferable.
      • Indirect Tax means a goods and services tax, a value added tax, a consumption tax or a tax of a similar kind.
      • Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above.
      • Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
      • Marketplace means an online directory or marketplace of the Services and Third Party Products or Services, as made available by Evolve as part of the Evolve Platform from time to time.
      • Orchestrated Infrastructure Services means the orchestrated infrastructure services set out at https://evolve.threatintelligence.com/evolve-solutions/.
      • Payment Facility means any credit card, debit card, bank account or other payment facility accepted by Evolve, details for which are provided by the Customer to Evolve (or its payments provider) in connection with the payment of the Fees.
      • Permitted Purpose means accessing and using the Evolve Platform and receiving the benefit of the Services for the Customer’s internal business purposes in accordance with this Agreement.
      • Personal Information means information that is personal information for the purposes of, or otherwise protected under, the Privacy Laws and which a party collects, uses, discloses or otherwise handles in the course of or in connection with this Agreement.
      • Privacy Laws means the Privacy Act 1988 (Cth), any applicable APP Code under the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth), as amended from time to time.
      • Security Monitoring and Response Services means the security monitoring and response services set out at https://evolve.threatintelligence.com/evolve-solutions/.
      • Services means the Access Services and any other services acquired by the Customer from Evolve through the Marketplace, which may include:
        i. the Automated Testing Services;
        ii. Compromised Account Monitoring Services;
        iii. Security Monitoring and Response Services;
        iv. Orchestrated Infrastructure Services;
        v. Cyber Threat Intelligence Services; or
        vi. access to, and use of, any additional product, feature, system or application which is made available by Evolve to the Customer via the Marketplace (but excluding, for the avoidance of doubt, any Third Party Products or Services available via the Marketplace).
      • Service Specific Terms means, in respect of a Service, any terms or details in respect of the Services provided to the Customer at the time the Customer acquires the Services from the Marketplace.
      • Service Period means:
        i. in respect of the Access Services, the Term; and
        ii. in respect of Services other than the Access Services, each period during the Term in which the Services will be provided as specified in the Service Specific Terms.
      • Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any government authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.
      • Term has the meaning given in clause 2.
      • Third Party Products or Services means any product, feature, system or application owned or operated by a Third Party Provider and which can be, or which is, integrated or interfaced with the Evolve Platform and / or are able to be acquired through the Marketplace.
      • Third Party Infrastructure means the computer servers, networks, other information technology hardware, platforms, systems, applications and hosting services owned, operated or provided by a third party and in respect of which any Services are to be provided.
      • Third Party Provider means any third party that provides support, technology and/or other products or services that are used by the Customer or an Authorised User in connection with the Evolve Platform.
      • Threat Data means information and data related to security events, threats or vulnerabilities which is collected or generated during Evolve’s provision of the Services.
    • 1.2 Interpretation
      • In this Agreement, headings are inserted for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
        • the singular includes the plural and vice versa;
        • if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
        • the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
        • a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency;
        • no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement; and
        • a reference to dollars or $ is to an amount in United States of America currency.
  1. Term
    • This Agreement will commence on the Commencement Date and will continue until terminated in accordance with clause 12 (Term).
  1. Services
    • 3.1 Provision of Services
    • Evolve will, during the relevant Service Period but subject to clause 2, provide the Services to the Customer on the terms and conditions of this Agreement and any Service Specific Terms
    • 3.2 Scope of Services
    • The Customer acknowledges and agrees that:
      • the Services may not identify all security risks, vulnerabilities and hazards in the Customer Infrastructure or which are relevant to the Customer’s business or operations;
      • the Services may not test all risks, vulnerabilities and hazards or act as a barrier against security risks, vulnerabilities and hazards and that security threats, regulations and standards continually change and the Services may not reflect such changes; and
      • it is the Customer’s responsibility to determine if the Services are appropriate and safe for the Customer Infrastructure and any Third Party Infrastructure.
    • 3.3 Authorised Users
    • The Customer agrees that:
      • it must ensure that each Authorised User complies with all the provisions of this Agreement; and
      • all acts and omissions of an Authorised User will be deemed to be acts and omissions of the Customer for the purpose of this Agreement and the Customer will be liable for all acts or omissions of any Authorised User as if they were the acts or omissions of the Customer.
    • 3.4 Evolve retains discretion
    • The Customer acknowledge that Evolve may vary the features, functions and other benefits available to the Customer and Authorised Users in respect of the Evolve Platform from time to time without any requirement to provide prior notice of the variation to the Customer and nothing in this Agreement requires Evolve to provide or maintain any features, functions or other benefits in respect of the Evolve Platform. The Customer also acknowledges and agrees that nothing in this Agreement limits Evolve’s right to discontinue or alter any such features, functions or other benefits from time to time.
    • 3.5 Updates and Support
    • The Customer acknowledges that, except as expressly set out in this Agreement as part of the Services, nothing in this Agreement imposes any obligation on Evolve to:
      • develop, release or install for the Customer any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Evolve Platform (Updates), provided however that if Evolve does develop or release any Updates, it may require that all such Updates be used by the Customer and any Authorised User; or
      • provide any services to the Enterprise Customer in respect of the Evolve Platform other than the Services.
  1. Marketplace
    • 4.1 Acquisition of Services
      • Evolve may make available Services to the Customer through the Marketplace.
      • Any Services will be provided on the terms and conditions of this Agreement and any Service Specific Terms and the fees payable by the Customer for the Services will be the fees which Evolve notifies the Customer of prior to the Customer’s acquisition of the Services (and which may be set out in the Marketplace).
    • 4.2 Acquisition and use of Third Party Products or Services
      • Third Party Providers may make Third Party Products or Services available to the Customer through the Marketplace.
      • The Customer agrees that:
        • Evolve may, at any time in Evolve’s sole discretion, remove a Third Party Product or Service from the Marketplace, remove a Third Party Product or Service from the provision of any Services or disable access to any Third Party Product or Service through the Evolve Platform; and
        • any provision of Third Party Products or Services to the Customer through the Marketplace is solely between the Customer and the relevant Third Party Provider and the Customer will maintain a direct, independent contractual relationship with all Third Party Providers in relation to the Customer’s access to or use of the Third Party Products or Services.
    • 4.3 Use of Third Party Products or Services
      • The Customer acknowledges that, in addition to any Third Party Products or Services acquired by the Customer through the Marketplace:
        • the Evolve Platform may interact with Third Party Products or Services;
        • the Evolve Platform may require Third Party Products or Services or Third Party Providers be used to provide particular features or functionality; or
        • Third Party Products or Services may be provided by Evolve as part of the Services.
      • The Customer acknowledges and agrees that, in respect of any Third Party Products or Services (whether acquired through the Marketplace or provided by Evolve as part of the Services):
        • the Customer must comply with all applicable terms of use or other similar agreements with the Third Party Provider in respect of the use of the relevant Third Party Product or Service;
        • Evolve makes no representations or warranties relating to the Third Party Providers or the Third Party Products or Services and, without limiting the foregoing, Evolve does not make any representations or warranties regarding:
          • the availability or timing of any availability of any interface between the Evolve Platform and any Third Party Products or Services; or
          • the features, functions or other benefits from time to time in respect of the Third Party Products or Services;
        • Evolve has no control over the content which is included in any Third Party Product or Service or the features or functions of any Third Party Product or Service;
        • any Third Party Providers and Evolve are not partners, joint venturers, representatives or agents of each other;
        • access to Third Party Products or Services is at the Customer’s risk and Evolve will in no way be responsible for any Loss that may result from the Customer’s use of any Third Party Product or Service, despite the fact that any such Third Party Product or Service may interface with the Evolve Platform;
        • the Third Party Providers may have practices, terms and policies, including those relating to privacy or data security, that are different from those of Evolve and Evolve is not responsible for these practices, terms and policies and specifically disclaims any liability for any of them; and
        • Evolve is not responsible for and has no obligation to provide the Customer with any assistance or support in relation to the functioning or operation of the Third Party Products or Services.
    • 4.4 Customer products or services
      • The Customer may be able to make its own products or services available via the Marketplace. The making available of any such products or services by the Customer will be governed by any terms provided to the Customer at the time the Customer makes products or services available via the Marketplace.
      • Notwithstanding clause 4(a), the Customer must not upload to the Marketplace any:
        • content which is incorrect, false or misleading;
        • files with any viruses, malicious code or other conditions which could damage or interfere with data, hardware or software; or
        • content that, in Evolve’s opinion, is objectionable or which may expose Evolve, its affiliates or any other person to any harm or liability.
  1. Authentication Credentials
    • 5.1 Provision of Authentication Credentials
    • On request from the Customer from time to time, Evolve may provide the Authorised Users with Authentication Credentials in order for the Authorised Users to access the Evolve Platform.
    • 5.2 Obligations of the Customer
    • The Customer must:
      • ensure that each Authentication Credential is securely maintained and used only by the Authorised User to whom the Authentication Credential has been issued;
      • comply with any policies, guidelines or other requirements issued by Evolve from time to time in any way relating to Authentication Credentials;
      • immediately notify Evolve and take immediate steps to disable an issued Authentication Credential if:
        • an Authorised User is no longer authorised by the Customer to access the Evolve Platform;
        • an Authentication Credential is lost, stolen, missing or is otherwise compromised; or
        • the Customer becomes aware of any breach of the provisions of this Agreement by the Customer or an Authorised User, in which case the Authentication Credentials may be suspended until such time as the breach is remedied to Evolve’s satisfaction;
      • not transfer or allow to be transferred Authentication Credentials between or amongst Authorised Users or other individuals or systems and take all reasonable steps to ensure that Authentication Credentials are not transferred;
      • if required to do so by Evolve, conduct regular checks to ensure the integrity of all issued Authentication Credentials, including regularly cross checking its list of Authorised Users with such list maintained by Evolve and provided to the Customer; and
      • periodically reset Authentication Credentials as and to the extent required by Evolve from time to time.
    • 5.3 Management of Authentication Credentials
      • Evolve reserves the right at any time and from time to time to change and/or revoke Authentication Credentials by providing the Customer with written notice.
  1. Customer responsibilities and obligations
    • 6.1General Customer responsibilities
      • The Customer will be responsible for:
      • the day to day use of the Evolve Platform;
      • obtaining all consents, permits or approvals necessary for the Customer and any Authorised User to use the Evolve Platform;
      • ensuring that its use, and use by the Authorised Users, of the Evolve Platform complies with all applicable laws, regulations or codes of conduct and does not infringe the Intellectual Property or other rights of any person;
      • not using the Services in any situations where the failure or time delays of any Customer Infrastructure or Third Party Infrastructure or failure to identify a security risk, vulnerability or hazard in any Customer Infrastructure or Third Party Infrastructure could lead to death, personal injury or property damage;
      • satisfying itself that the Evolve Platform is compatible with the Customer Infrastructure and maintaining all Customer Infrastructure, Third Party Products or Services and other technology necessary to be able to access and use the Evolve Platform;
      • ensuring that it maintains back up or alternate systems for use if the Evolve Platform is unavailable or is otherwise unable to be used by the Customer or if the Services causes disruption of the Customer Infrastructure or loss or corruption to any data; and
      • any acts or omissions committed by the Authorised Users or the other employees, officers, contractors or representatives of the Customer or any of its related parties in relation to the Evolve Platform.
    • 6.2 General Customer obligations
      • The Customer must:
      • ensure the Evolve Platform is only used for the Permitted Purpose;
      • cooperate with Evolve and provide Evolve with all assistance and information reasonably requested by Evolve including any information about the Customer Infrastructure;
      • notify its employees, officers, contractors or representatives when any Services are scheduled to be provided by Evolve and any possible interruptions or downtime to any Customer Infrastructure;
      • immediately notify Evolve if there are any periods during which the Services are provided when Evolve should cease providing the Services due to any critical business process or system which be affected by the provision of the Services;
      • only use and copy the Documentation to the extent necessary to use the Evolve Platform;
      • not modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Evolve Platform;
      • not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Evolve Platform;
      • not distribute any part of the Evolve Platform for commercial purposes or otherwise sub-licence or resell the Evolve Platform;
      • not create derivative works from all or any part of the Evolve Platform;
      • not transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Evolve Platform or any compilation derived from the Evolve Platform; and
      • not make any part of the Evolve Platform publicly available.
    • 6.3 Access to Customer Infrastructure
      • Certain laws may prohibit unauthorised access to the Customer Infrastructure or unauthorised attempts to penetrate or access the Customer Infrastructure and the Customer hereby authorises Evolve to provide the Services and access the Customer Infrastructure and acknowledges that the Services constitute authorised access to the Customer Infrastructure.
      • The Customer must provide Evolve with all access required by Evolve to the Customer Infrastructure (by means of remote access or through entry to the Customer’s premises, at Evolve’s election) for the purposes of Evolve providing the Services.
      • Evolve may disclose the grant of authority under clause 3(a) to any third party if deemed necessary by Evolve to provide the Services.
    • 6.4 Third Party Infrastructure
      The Customer agrees:

      • that the Customer must, prior to Evolve accessing or otherwise providing the Services in respect of any Third Party Infrastructure, obtain all consents, permits, licences and approvals necessary for Evolve to access or otherwise provide the Services in respect of the Third Party Infrastructure (including any consents, permits, licences and approvals necessary from the owner or provider of the Third Party Infrastructure);
      • upon request by Evolve, to provide Evolve with evidence of any consent, permit, approval or licence which the Customer is required to obtain under clause 4(a);
      • that the Customer is solely responsible for notifying the owner or provider of any Third Party Infrastructure:
        • that the Evolve Platform may access such Third Party Infrastructure or that such Third Party Infrastructure may be accessed as part of the Services; and
        • of any risks, vulnerabilities and hazards identified by Evolve in respect of the Third Party Infrastructure;
      • that the Customer is solely responsible for arranging communication and exchange of information between Evolve and the owner or provider of any Third Party Infrastructure; and
      • not to disclose to the owner or provider of any Third Party Infrastructure any deliverables, information or data resulting from the Services or the fact that Evolve has provided the Services without the prior written consent of Evolve.
  1. Documentation
  2. The Customer must use only the most recent version of the Documentation provided or made available by Evolve, and must follow:
    • any directions in the Documentation regarding the use of the Evolve Platform;
    • Evolve’s instructions concerning the return or destruction of any superseded versions of the Documentation; and
    • any Evolve Policies.
  1. Privacy
    • The Customer acknowledges and agrees that, in the course of providing the Services, Evolve may collect, store, disclose and use Personal Information and the Customer is responsible for ensuring that it obtains all consents, permissions or authorisations necessary for Evolve to be able to provide the Service and collect, store, disclose and use Personal Information as may be required as part of the Services or by applicable law.
    • Subject to clause 8(a), each of Evolve and the Customer must comply with all Privacy Laws in respect of all Personal Information in doing any act or engaging in any practice pursuant to this Agreement to the extent that Evolve or the Customer (as applicable) is bound to do so under the Privacy Laws.
    • Without limiting clause 8(a) or any other obligations of the Customer under this Agreement, the Customer must co-operate with Threat Intelligence to resolve any complaint made against either Evolve or the Customer under any Privacy Law.
  1. Back ups
    • The Customer acknowledges that Evolve does not provide back up or other similar services in respect of the Customer Infrastructure and the Customer is responsible for implementing its own back up and data retrieval procedures in respect of the Customer Infrastructure prior to the provision of any Services.
  1. Fees and expenses
    • 10.1 Fees and expenses payable
    • During the Term the Customer agrees to pay to Evolve the Fees.
    • 10.2 Payment Facility
    • Unless otherwise agreed by Evolve, the Customer must, prior to the Commencement Date, provide Evolve with details of its Payment Facility and a signed authority which enables Evolve to direct debit the Fees from its Payment Facility in accordance with clause 3(b) below.
    • 10.3 Payment of Fees
      • Evolve may issue the Customer with a tax invoice for the Fees in accordance with the payment terms specified by Evolve at the time the Services are acquired by the Customer from the Marketplace or which Evolve otherwise agrees with the Customer (Tax Invoice).
      • Subject to clause 3(d), Evolve may debit the relevant Fees from the Payment Facility within three days (or such other period determined by Evolve) of the Tax Invoice being issued by Evolve.
      • All payments must be made in Australian dollars and Evolve may charge a reasonable fee for the costs incurred by Evolve in converting any payment from the Customer to Australian dollars.
      • Where Evolve agrees to amounts being paid by a method other than direct debit, all amounts payable by the Customer must be paid within 14 days of the date of the relevant amounts being invoiced to the Customer by Evolve.
    • 10.4 Failure to pay
    • If the Customer fails to pay any amounts due to Evolve under this Agreement then (without prejudice to Evolve’s other rights):
      • Evolve may charge the Customer interest on all amounts overdue at the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amounts become overdue until Evolve receives effective payment of all such amounts (including all interest); and
      • Evolve may issue a notice to the Customer stating that payment pursuant to the Tax Invoice is overdue (Overdue Notice) and, without limiting its rights under clause 12, if Evolve does not receive payment of the relevant Fees within 7 days of the date of the Overdue Notice, Evolve may cease providing the Services and may disable the Customer’s access to the Evolve Platform and until such time as the outstanding amount is paid in full (together with any interest). Evolve will not be liable for any Loss suffered by the Customer as a result of Evolve exercising its rights under this clause 4(b).
  1. Suspension of Services
    • The Customer agrees that Evolve may at any time and without any obligation to give notice to the Customer suspend the provision of any of the Services or suspend or disable the Customer’s access to all or a part of the Evolve Platform if Evolve forms the opinion the that:
      • the Customer is using the Services or the Evolve Platform for any unauthorised or illegal use or purpose;
      • the Customer fails to comply with any Evolve Policy or any direction provided by Evolve;
      • the continued provision of the Services presents a security risk to Evolve, the Customer or any third party;
      • the continued provision of the Services presents a risk to the stability or security of the Evolve Platform or any Third Party Infrastructure; or
      • the continued provision of the Services may cause damage to Evolve, the Customer or any third party.
    • The Customer agrees that it cannot make any claim against Evolve for any loss or damage suffered by the Customer as a result of any action taken by Evolve pursuant to this clause 11.
  1. Termination
    • 12.1 Termination of Agreement
    • Evolve may, by written notice to the Customer, terminate this Agreement with immediate effect if:
      • the Customer has not used any of the Services for a period of 30 days;
      • the Customer fails to comply with any written notice issued by Evolve requiring the Customer to remedy a breach, non-observance or non-performance of the Customer’s obligations under this Agreement within seven days of receiving that notice from Evolve;
      • the Customer commits a breach of this Agreement which is incapable of remedy;
      • the Customer goes into liquidation, is wound up, becomes insolvent or has a receiver appointed over all or any substantial part of its assets; or
      • the Customer proposes or enters into any schemes of arrangements with its creditors.
    • 12.2 Termination of Services
      • Without limiting clause 12.1, Evolve may, terminate the provision of any Services under this Agreement at any time on a without cause basis upon the provision of 90 days’ written notice to the Customer.
    1. Consequences of termination
      • 13.1 Consequences
        • Upon termination of this Agreement taking effect:
          • the Customer must immediately:
            • cease using and ensure that each Authorised User ceases using the Evolve Platform;
            • pay to Evolve all Fees, expenses or other sums payable to Evolve under this Agreement which have accrued or are payable as at the date of termination;
            • return to Evolve any Documentation in the Customer’s possession or control; and
          • Evolve ceases to have any obligations under this Agreement with respect to the provision of Services and may disconnect the Customer’s access to the Evolve Platform and disable all Authentication Credentials of the Customer and the Authorised Users.
        • If Evolve terminates the provision of any Services under clause 12.2:
          • Evolve ceases to have any obligations under this Agreement with respect to the provision of relevant Services; and
          • Evolve must refund to the Customer any amounts paid by the Customer to Evolve in respect to the Fees for that Service which, calculated on a pro rata basis, Evolve (acting reasonably) determines relate to the period from the date of termination to the end of the period for which the Fees have been paid.
      • 13.2 Survival of certain terms
      • The termination or expiry of this Agreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the party’s obligations under clauses 8, 10.4, 13, 14, 15, 17, 18, 19, 20, 21 and 22 of this Agreement.
    1. Confidentiality
        • 14.1 Confidentiality obligations

      Where a party (Recipient) receives Confidential Information from the other party under this Agreement or otherwise in connection with the Services, the Recipient must:

      • keep the Confidential Information confidential;
      • subject to clause 2, not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement; and
      • establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure.
      • 14.2 Permitted disclosure
      • Notwithstanding clause 14.1, the Recipient may use or disclose Confidential Information to the extent necessary to:
        • by Evolve in accordance with clause 3(c);
        • comply with any law, binding directive of a regulator or a court order;
        • comply with the listing rules of any securities exchange on which its securities are listed; or
        • obtain professional advice in relation to matters arising under or in connection with this Agreement.
      • 14.3 Promotion and marketing
      • The Customer agrees that, for the purposes of promoting and marketing Evolve and the Evolve Platform, Evolve is entitled to notify others of Evolve’s relationship with the Customer and Evolve’s provision of the Services to the Customer.
    1. Intellectual Property
      • 15.1 Evolve’s Intellectual Property
        • The Customer acknowledges that nothing in this Agreement grants the Customer any ownership of or rights in respect of the Intellectual Property in the Evolve Platform or any Documentation, any Intellectual Property in any materials created as a result of the performance of the Services or any Improvements to the Evolve Platform or Documentation created in connection with this Agreement. Any Intellectual Property in respect of the Evolve Platform or Documentation which is created by or vests in the Customer during the Term is assigned to Evolve immediately upon the Intellectual Property being created or vesting and the Customer agrees to do all things and execute all documents as is reasonably necessary to effect such assignment. During the Term Evolve grants the Customer a limited, non exclusive and revocable licence to use the Intellectual Property referred to in this clause 1 solely to the extent such use is necessary for the Customer to receive the Services. Unless revoked earlier by Evolve, the licence granted under this clause 15.1 terminates immediately upon the termination or expiry of this Agreement.
      • 15.2 Trade marks
      • Subject to clause 14.3, nothing in this Agreement grants either party any ownership of or rights to use the trade marks of the other party. Subject to clause 14.3, each party will not adopt, register or attempt to register or use any trade marks which are identical or deceptively similar to the trade marks owned by the other party.
      • 15.3 Data
        • The parties acknowledge and agree that the Customer owns all Intellectual Property in the Data and unless expressed otherwise in this Agreement, nothing in this Agreement grants Evolve any ownership of the Intellectual Property in the Data.
        • The Customer grants Evolve:
          • a non-exclusive and royalty free licence to use, reproduce and otherwise exploit the Data during the Term for the purposes of providing the Services to the Customer, improving or developing the Evolve Platform or the Services or as required for Evolve to perform its obligations under this Agreement or as required by applicable law; and
          • a non-exclusive, perpetual, irrevocable and royalty free licence to use, reproduce and otherwise exploit any Threat Data both during and after the Term for any purpose, including providing services to other customers of Evolve, provided that such Threat Data is de-identified such that the Threat Data does not identify the Customer or any of its Authorised Users.
    1. Subcontractors
      • The Customer agrees and acknowledges that Evolve may subcontract the performance of any of its obligations or the exercise of any of its rights under this Agreement to any sub-contractor without the Customer’s consent and on such terms and conditions as Evolve deems fit from time to time.
    1. Consumer Guarantees
      • 17.1 Consumer laws
      • There may be laws which confer in favour of the Customer certain consumer guarantees or warranties in relation to the Evolve Platform or the performance of Evolve’s obligations under this Agreement and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights where the exclusion, restriction or modification of such rights is prohibited by the applicable law (Consumer Laws).
      • 17.2 Limitation of liability
      • If the Customer makes a claim against Evolve regarding the goods or services provided under this Agreement in respect of a breach or alleged breach by Evolve of the Consumer Laws, then to the extent permitted by law, Evolve’s liability to the Customer for such a breach or alleged breach of the Consumer Laws will be limited, at the election and discretion of Evolve, to:
        • if the breach relates to goods:
          • the replacement of the goods or the supply of the equivalent goods; or
          • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        • if the breach relates to services:
          • the supply of the services; or
          • the payment of the cost of having the services supplied again.
    1. Warranties
      • 18.1 Warranties excluded
        • Subject to clause 17, Evolve does not warrant or guarantee that:
          • the Services, the Evolve Platform or any portion of the Services or the Evolve Platform will meet the Customer’s requirements;
          • the Evolve Platform will be compatible with, or capable of being used on or in connection with, the Customer Infrastructure;
          • the Services or the Customer’s access to the Evolve Platform will be uninterrupted or error free;
          • the Services will be free from corruption, viruses, interference, hacking or other security intrusion; or
          • the Evolve Platform will be accurate, reliable or fit for any particular purpose.
      • 18.2 Customer’s warranty
        • The Customer acknowledges and warrants that:
          • it has relied on its own skill and judgment in the selection of the Evolve Platform; and
          • it has satisfied itself that the Evolve Platform is fit for all the purposes which Customer requires them for.
    1. Limitation of liability
      • 19.1 Liability capped
        • Subject to clause 17 and to the extent permitted by law, any liability of Evolve for any Loss, however caused (including by the negligence of Evolve), suffered by the Customer in connection with this Agreement or its access to or use of the Evolve Platform is limited to the total amount of the Fees paid by the Customer to Evolve in the 12 month period immediately prior to the date a claim first arose (or in the case of more than one claim or forms of Loss when the first of those claims or forms of Loss arose).
        • The limitation set out in this clause 1 is an aggregate limit for all claims or Loss, whenever made.
      • 19.2 Commencement of claims
        • Any claim by the Customer against Evolve for Loss (however caused) suffered by the Customer in connection with this Agreement must be made within one year of the Customer becoming entitled to make the claim and any claim not made within this period is absolutely barred.
      • 19.3 Consequential Loss
        • Subject to clause 17 and to the extent permitted by law, Evolve is not liable for any Consequential Loss (however caused) suffered or incurred by the Customer in connection with this Agreement. This clause applies even if Evolve knew or ought to have known that the relevant Consequential Loss would be suffered.
    1. Indemnity
      • The Customer must indemnify Evolve and each of its directors, officers, employees, agents, contractors and related bodies corporate (Indemnified Parties) and keep each of them indemnified against any claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party which arises from or in respect of:
        • any breach by the Customer of clause 4(a); or
        • any negligent or unlawful acts of the Customer or any of its related parties or their respective employees, officers, contractors or representatives or the Authorised Users,

        except to the extent the relevant Loss arises as a direct result of any breach of this Agreement by Evolve or any negligent or unlawful act of the Indemnified Party.

    1. Taxes
      • 21.1 Indirect Tax
      • Unless expressly stated otherwise, all fees and other amounts payable by the Customer under or in connection with this Agreement have been calculated without regard to any Indirect Tax.  Notwithstanding anything to the contrary in this Agreement, if Indirect Tax is imposed upon or is payable by Evolve under or in connection with this Agreement, the Customer must pay to Evolve an amount equal to the Indirect Tax upon demand by Evolve.
      • 21.2 Withholding Taxes
      • If the Customer is required by law to make any deduction or withholding for any Taxes from any payments to Evolve under this Agreement such that Evolve would not receive the full amount of the Fees or other amount payable, the Customer agrees to:
        • deduct or withhold the amount for Taxes from the payment;
        • promptly pay the amount deducted to the relevant government authority on time and otherwise in accordance with the relevant law;
        • provide to Evolve an original receipt, certificate or other evidence of payment of the deducted or withheld amount; and
        • pay an additional amount to Evolve at the same time as the affected payment is due so that, after making the deduction or withholding and any further deductions or withholdings on the additional amount payable under this clause 2(c), Evolve receives an amount equal to the amount it would have received if no deductions or withholdings had been made.
    1. General provisions
      • 22.1 Governing law
      • This Agreement will be governed by and construed and interpreted exclusively under the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Federal Court of Australia.
      • 22.2 Assignment
      • The Customer may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Evolve. Evolve may assign, novate or otherwise deal with its rights under this Agreement at any time effective immediately upon Evolve notifying the Customer of the assignment or novation.
      • 22.3 Entire agreement
      • This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
      • 22.4 Force Majeure
      • If a party is prevented, hindered or delayed from performing its obligations under this Agreement by a Force Majeure Event (other than any obligations to pay Fees under this Agreement), then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
      • 22.5 Waiver and variation
      • This Agreement will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under this Agreement to a party constitutes a waiver and the party may still exercise that right in the future.
      • 22.6 International conventions
      • The United Nations Convention on the International Sale of Goods (the Vienna Convention) will not apply to this Agreement or the subject matter hereof.
      • 22.7 Severability
      • If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
  • SECURITY BUDGET
    OPTIMISATION WITH EVOLVE

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