Terms and Conditions
Read our Terms of Service
If you are an employee, contractor or otherwise installing or using the Software by or on behalf of the Licensee, you represent and warrant to Floodgate that you have all requisite capacity, right, power and authority to accept this license on behalf of the Licensee. The Licensee shall be irrevocably bound by and shall comply with all terms and conditions of this EULA.
‘Account’ means an account enabling a Customer to order, access and pay for the Service.
‘Agreement’ means a contract between the parties incorporating the Order Form, this EULA, the Terms and Conditions, and any other terms and conditions that may be notified by Floodgate from time to time.
‘Authorised Users’ means any employee, officer, agent, or contractor of the Customer; or any person (including without limitation any employee, officer, agent, supplier, sub-contractor, associate or third party) or any application or automated system or that accesses the Service using the Customer’s Account.
‘Confidential Information’ includes all information exchanged between the parties to this EULA, whether in writing, electronically or orally, including the Software, that was marked confidential or should have been reasonably understood by the disclosing party to be confidential but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
‘Customer’ means the person, business or entity that has engaged the Floodgate Services and has agreed to the Software as a Service Terms and Conditions.
‘End User License Agreement (or EULA)’ means this end user license agreement.
‘Floodgate’ means Floodgate [company details] including its directors, employees, contractors and related bodies corporate.
‘Intellectual Property Rights’ means any patent, trade mark, service mark, copyright, moral right, right in a design, know- how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
‘Licensee’ means any individual, on their own behalf or on behalf of an entity whom they are authorized to represent which has entered into this EULA with Floodgate, and may be the Customer or an Authorised User.
‘Related Bodies Corporate’ has the meaning given in the Corporations Act.
‘Service/s’ means the service(s) as made available by Floodgate via the Software.
‘Software’ means the software used to deliver the Service/s.
‘Support Services’ means support in relation to the use of, and the identification and resolution of errors in, the Service, but shall not include the provision of training services.
2. Acceptance of Terms
By using the Software, the Licensee agrees to be bound by the terms and conditions of this EULA without modification, including the limitations on the grant of license and the disclaimer of warranties contained herein. The Licensee, by using this Service, will be subject to the full Terms and Conditions of the Customer who has engaged the Software as a Service from Floodgate.
If the Licensee is not willing to be bound by all of the terms of this EULA and the Software as a Service Terms and Conditions (‘SaaS’), the Licensee must promptly return the Software to Floodgate, and delete any of the Software installed on the Licensee’s system and halt use of the Services.
3. Consent and Changes
3.2 Floodgate may, at its sole discretion and with or without notice, modify or replace this EULA, in whole or in part, from time to time. If the Licensee does not agree to any modifications, the Licensee should stop the Licensee’s use of the Software and the Services. The Licensee’s continued use of the Software or Services now, or following the posting of notice of any changes in this EULA on the Site, will constitute a binding acceptance by the Licensee of this EULA, or any subsequent modifications. The Licensee can review the most current version of this EULA at any time at [insert link] and the Software as a Service Terms and Conditions [insert link].
4. Grant of License
4.1 Subject to the terms of this EULA, Floodgate grants to the Licensee a non-exclusive, non-transferable license (the “License”) to use the Software and Services applicable thereto in accordance with the terms and conditions of any Agreement entered into by the Customer with Floodgate.
4.2 The License shall be a license to use the machine-readable object code only, excluding any source code, and receive the Services related thereto. The term of this license grant shall be from the date of acceptance of this EULA until terminated by either party or as provided herein.
4.3 This EULA specifically excludes the right to sublicense the Software or the Services provided thereto. The Licensee shall not permit any subsidiaries, affiliated entities, or other third parties to use the Software unless such entities or individuals agree in writing to be bound by the terms and conditions of this EULA.
5. Additional Services
5.1 The Licensee is responsible for the purchase or licensing of all additional equipment and software, other than the Software. Future versions of the Software and new Floodgate products may require additional equipment and/or software, as well as updated versions of the additional equipment and software. Purchase or licensing of these items, if required, is solely the responsibility of the Licensee.
6. Updates, Upgrades and Supplements
6.1 Floodgate may, from time to time and in its sole discretion, make updates available to the Software.
6.2 Floodgate will provide to the Licensee all commercially released updates at the time of the release of the update without additional charge.
6.3 Updates may include license and maintenance terms additional to those of this EULA.
6.4 From time to time, Floodgate may offer new or additional functionality which will be a supplement at an additional fee
6.5 Any portion of the Software replaced by an update (except archival copies) shall be destroyed by the Licensee.
7. Ownership and Copies
7.1 All right, title and interest in and to the Software, Services, and all copyrights, patents, trademarks, service marks or other Intellectual Property Right relating thereto, and the media on which the same are furnished to the Licensee, belong exclusively to Floodgate or its respective developers and suppliers. The Licensee acknowledges that, except as specifically provided under this EULA, no such right, title or interest in these items is granted to the Licensee.
7.2 Except as provided for herein, the Licensee is prohibited from: distributing, transferring possession of, or otherwise making available the Software or Services to any person other than Authorized Users under the terms of this EULA; and using the Software or Services for the purposes of commercial timesharing, service bureau or other rental or sharing arrangements.
8.1 Except as reasonably required to exercise its rights under this EULA, each party agrees to use commercially reasonable efforts to prevent any unauthorized copying, use, distribution, installation or transfer of possession of Confidential Information. At a minimum, each party shall maintain at least the same procedures regarding the other party’s Confidential Information that it maintains with respect to its own. The receiving party shall not acquire any interest in any Confidential Information received from the other party by reason of this EULA.
8.2 Nothing herein shall restrict a party’s use of its own Confidential Information. A party’s Confidential Information shall not include any information which:
i. becomes part of the public domain through an act or omission of the other party;
ii. is lawfully acquired by the other party from a third party without any breach of confidentiality;
iii. is independently developed without reference to the Confidential Information of the other party; or
iv. is disclosed in accordance with judicial or other governmental order or timely disclosure requirements imposed by law or stock exchange policies.
8.3 Notwithstanding the foregoing, either party shall be permitted to disclose the terms and conditions of this EULA in conjunction with legal due diligence proceedings. Without limiting the generality of the foregoing, the Licensee shall take reasonable steps to prevent any personnel or Authorized User from removing any proprietary or other legend or restrictive notice contained or included in any material provided by Floodgate.
8.4 Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this EULA may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate. Both parties further agree that the non-disclosing party shall be entitled to attempt to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
8.5 The Licensee and Authorised Users shall not decompile, disassemble, reverse engineer or modify the object code of the Software.
9.1 Floodgate warrants that it has the right to enter into this EULA and to grant the rights and licenses herein.
9.2 Floodgate does not warrant that the functions contained in the Software or the Services will meet the requirements of the Licensee or Authorised Users or that the operation of the Software or the Services will be uninterrupted or error-free. Floodgate is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Software and Services is procured, nor is Floodgate responsible for problems which result from the use of the Software in conjunction with software of third parties or with hardware which is incompatible with the operating system for which the Software is being procured.
10.1 The Licensee agrees to defend, indemnify and hold harmless Floodgate, third-Parties, their affiliates, licensees, partners and suppliers, and the directors, officers, employees, agents, representatives and customers of each of them, from any loss or damages, including without limitation actual legal fees, which they may suffer from the Licensee’s activities on or use of the Software or Services, including without limitation (i) any breach by the Licensee of this EULA or the Software as a Service Terms and Conditions, (ii) the violation of any law, rule, regulation or rights of others in connection with the Licensee’s use of the Software or Services, or (iii) any charges or complaints made by other parties against the Licensee.
10.2 Intellectual Property Rights: Floodgate shall have the right to control the defence of all claims, lawsuits, and other proceedings based on a claim that the Software or Services used within the scope of this EULA infringes any Intellectual Property Rights of a third party. In no event shall the Licensee settle any such claim, lawsuit, or proceeding without Floodgate’s prior written approval, and Floodgate shall have no liability for any settlement or compromise made without its consent. Floodgate shall have no liability for any claim under this clause if said infringement claim is based on the use of a superseded or altered version of the Software or in the event such claim is based upon any modification or enhancement to the Software made by the Licensee or Authorized Users. In the event a third party infringement claim is sustained in a final judgment from which no further appeal is taken or possible, or if the Licensee’s use of the Software or Services is enjoined by a court, or if Floodgate believes the Software or Services infringe the Intellectual Property Rights of a third party, then Floodgate shall, in its sole discretion and at its expense either:
i. procure for the Licensee the right to continue to use the Software and Services pursuant to this EULA;
ii. replace or modify the Software and Services to make it non-infringing, provided that such replacement or modification does not materially decrease the functionality of the Software or Services; or
iii. terminate this EULA, including the Services.
10.3 This clause states the entire liability of Floodgate and its suppliers with respect to any claim of infringement of the Intellectual Property Rights or proprietary rights of others.
11. Limitation of Liabilities
11.1 All express or implied warranties, representations, statements, terms and conditions relating to this agreement or its subject matter that are not contained in this Agreement are excluded to the maximum extent permitted by law. If any guarantee, term, condition or warranty is implied under the Australian Consumer Law or any other applicable legislation and we are able to limit your remedy for a breach of that legislation, then our liability for such breach is limited to the replacement of the goods or the supply of equivalent goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods.
12. Default and Termination
12.1 In the event either party defaults in any material obligation in this EULA, the other party may give written notice of such default, and, if the party in default has not cured the default within thirty (30) days after the notice, the other party shall have the right to terminate this EULA. The Licensee’s failure to pay all amounts due under this EULA or any terms, including but not limited to the Agreement, shall constitute a default of its material obligations.
12.2 In the event that Floodgate terminates this EULA due to a default of a material obligation in the EULA, Floodgate will not return any fees that the Licensee remitted in respect of the Software or Services, irrespective of whether such fees were remitted in connection with any period of License that may extend beyond the date of termination of this EULA.
12.3 Floodgate may terminate this EULA at any time, with or without notice, for any reason whatsoever, with or without cause. In the event that Floodgate terminates this EULA and the Licensee has remitted fees in respect of the Software or Services that extends beyond the date of termination of this EULA, Floodgate will return such fees to the Licensee for the period of License that extends beyond the date of termination of this EULA except in the event that the Licensee has breached any terms of this EULA or the SaaS.
12.4 The Licensee may terminate this EULA at any time, for any reason whatsoever, with or without cause, by emailing Floodgate at [insert address] In the event that the Licensee exercises its option to terminate this EULA, Floodgate will not return any fees that the Licensee remitted in respect of the Software or Services, irrespective of whether such fees were remitted in connection with any period of License that may extend beyond the date of termination of this EULA.
12.5 Upon termination of this EULA, regardless of the cause, the license granted under this EULA is immediately revoked. Within ten (10) business days after the termination of this EULA, without limiting the foregoing, the Licensee must return to Floodgate or destroy all copies of the Software in the Licensee’s possession. The Licensee will, however, have access to all of the Authorised User and Customer data for up to 12 months after the date of termination.
12.6 Floodgate is at no time responsible for any lost, inaccessible or otherwise irretrievable data that may occur at any time after termination.
12.6 Termination of the EULA shall be in addition to, and not in lieu of, any other remedies available to Floodgate. Termination shall not relieve either party of their confidentiality obligations as set forth in this EULA.