Policy / End User License Agreement
This End User Licence Agreement (hereinafter referred to as the ‘Agreement’) is an agreement between Netmonastery Network Security Private Limited (hereinafter referred to as ‘Netmonastery’) and You or any Entity (as defined hereunder) that you may represent. The words ‘You’ and any derivative thereof used in the context of this Agreement shall mean and refer to You or the Entity that You represent (in either case ‘You’), as an End User (as defined hereunder). This Agreement governs the grant of a limited licence to You for the use of the software provided under the trade / product name ‘DNIF’, (hereinafter referred to as the ‘Software’ and as defined hereunder). The Software is developed and owned exclusively by Netmonastery and is only licensed and not sold to You.
When You access the website ‘www.dnif.it’ (‘DNIF Website’), sign-up and create an account with Netmonastery and / or download and install the Software and/or gain access to the Software in any manner whatsoever and/ or provide access to the Software in any manner whatsoever to Your customers, You will be required to read, acknowledge and expressly agree to the terms of this Agreement and require Your customers to read, acknowledge and expressly agree to the terms of this Agreement, as may be applicable. You agree to be bound by the terms of this Agreement. You further agree to ensure that the use of the Software by your customers, in any form permitted by Netmonastery is in accordance with the terms of this Agreement. This Agreement contains the final and entire understanding between Netmonastery and You and shall supersede any oral or written proposal, agreement, purchase order, work order or other communication between You and either Netmonastery or any Partner (as defined hereunder) regarding the Software. Any additional or inconsistent terms provided either to or by You in any other documents such as a purchase order will not have any legally binding effect on Netmonastery, unless expressly agreed by Netmonastery to override the terms contained herein.
This Agreement may be modified only by a binding written instrument entered into by You and Netmonastery. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If You enter into this Agreement for the personal use of the Software, You will be bound by the terms of this Agreement personally and will be required to use the Software in accordance with Netmonastery’s policy towards End Users as stated hereunder. If You enter into this Agreement, on behalf of an Entity, You represent that You have been duly authorized to act on behalf of such Entity. You further represent that the authority granted to You extends to enter into and bind such Entity to the terms of this Agreement. Netmonastery may call upon You, to provide Netmonastery with proof of the authority granted to You. Netmonastery reserves the right to suspend, revoke or discontinue the Licence granted to You, till such time as Netmonastery is satisfied that You have acted under authority duly granted to You.
If You do not accept and agree to all of the terms of this Agreement, do not access and/ or download and / or install and / or enhance and/ or use the Software. If You do not have valid and subsisting authority to enter into this Agreement on behalf of an Entity, You should not download and / or install and / or enhance and/ or use the Software.
This Agreement is effective from the date that You first access, download, install, enhance and / or use the Software.
Applicable Law shall mean any common or customary law, constitutional law, any statute, regulation, resolution, rule, ordinance, enactment, judgment, order, decree, directive, notification or clarification issued by a statutory authority, guideline issued by a statutory authority, statutory policy, requirement or other governmental restriction or any form or decision of or determination by or interpretation of any of the foregoing by any statutory authority, now or hereafter in effect, in each case as amended, re-enacted or replaced, in the country in which Netmonastery permits the download and installation of the Software and in the country and or territory in which You download and install the Software.
Partner shall mean and refer to those persons engaged with Netmonastery as resellers, distributors, and / or managed security service providers by executing a Netmonastery Partner Agreement.
Netmonastery Partner Agreement shall mean and refer to the agreement executed by and between Netmonastery and a Partner to market, resell and/ or distribute the subscription to use the Software.
Copyright shall mean the exclusive right to do or authorize the doing of the following acts:
- to license the Software in any manner;
- to reproduce the Software in any material form including the storing of it in any medium by electronic means;
- to issue copies of the Software to the public;
- to perform the Software in public or communicate it to the public;
- to make translations and / or adaptations of the Software across different operating systems whether native or hybrid, presently in existence or as may be in the future developed; and
- to sell or give on commercial rental or offer for sale or for commercial rental any copy of the Software.
Data Threshold shall mean the total volume (expressed in gigabytes) of data, processed by the Software in one calendar month.
DNIF Rules / Modules shall mean and refer to the customised set of rules for the purpose of identifying and analysing indexed data using the DNIF Query Language.
End User shall mean and refer to the individual or Entity (in this context You) who accesses, downloads, installs and/ or enhances the Software, whether directly or through a Partner and shall include without limitation, all Partners, who with Netmonastery’s consent, accesses, downloads, installs and/ or enhances the Software and provide services through the Software to it’s customers.
Entity shall mean and include an artificial and / or juridical person, company, firm, association of persons, whether incorporated or not, government and / or local authority, more specifically;
- a company, corporation, trust, firm, limited liability partnership, or similar legal entity (excluding affiliates or
- subsidiaries which will be treated as a separate Entity);
- an agency / sub-department of a department of a government or local authority; and
- a non-governmental organization or non-profit organization.
Intellectual Property Rights shall mean all rights, title and interest, Copyright and any other related intellectual property rights in the Software, patents, utility models, rights to inventions, prototypes or products, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other allied intellectual property rights in the Software, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Service Level Agreement shall mean and refer to the agreement executed by and between Netmonastery and an End User or a Partner for provision of support and technical services in respect of the Software.
Software shall mean and refer specifically to ‘DNIF’ and shall include the computer programme, ancillary updates and patches, developed and owned by Netmonastery and consisting of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, consisting of a source code and object code, capable of causing a computer or series of computers to perform a particular task or achieve a particular result. The Software shall include the DNIF Query Language (DQL), UNET, which consists of the authentication system, configuration director and web application that is available on the https://go.dnif.it web property; the Adapter component of DNIF, which collects and receives data from various devices; the Datastore component of DNIF, which indexes, stores and archives data and the Correlator component of DNIF, which correlates multiple log types and includes frameworks but does not include enhancements made by the End Users.
All capitalised terms used in this Agreement not defined in this Clause, shall have the meaning assigned to them in the Agreement.
GRANT OF LICENCE:
Subject to the End User’s compliance with the terms of this Agreement and other written agreements executed by and between Netmonastery and the End User, Netmonastery hereby grants to the End User, a non-exclusive, non-transferrable, non-sub licensable, non-assignable, revocable and limited licence to use the Software, which licence contains, subject to Applicable Law, the authorisation to build upon the Software and implement DNIF Rules / Modules in accordance with Clause 4 of this Agreement (hereinafter referred to as the ‘Licence’) by purchasing and / or subscribing to either of the following plans for consideration as set out in Clause 7, or by entering into other arrangements and executing written agreements with Netmonastery and/ or any of the Partners The rights granted hereinabove are limited to Netmonastery’s own Intellectual Property rights and do not include any intellectual property rights of any third party.
The features of the Software and the support services provided by Netmonastery are specifically stated at https://dnif.it/pricing.html and may be varied by Netmonastery from time to time. The support services provided by Netmonastery under Term Plans and other agreements will be as specifically stated under a purchase or service order or a Service Level Agreement (or like document) entered into by Netmonastery and You or the Partner :
Free Tier Plan: The Free Tier Plan is intended to give the End User an understanding of the capabilities of the Software and its features. Under the Free Tier Plan, the End User is provided a Data Threshold of 100 (One Hundred) Gigabytes per month. Upon meeting the Data Threshold, the End User will have an option to either stop indexing data and/ or logs or to upgrade to any of the Subscription Plans. The End User will be permitted to use the Software, subject to the restrictions mentioned, till such time as Netmonastery makes available the Free Tier Plan.
Subscription Plans: Netmonastery offers to the End User, an annual subscription of the following: a Community Plan, a Standard Plan and an Enterprise Plan, each having their respective product and/ or support features (hereinafter referred to as the ‘Subscription Plans’). Under the Subscription Plans, the End User is provided a Data Threshold of 200 (Two Hundred) Gigabytes per month.
Term Plans: Netmonastery offers select End Users, an option to purchase a definitive long term licence for the integration and use of the Software for either a pre-defined term or in perpetuity. Netmonastery further provides an option to additionally avail of Netmonsatery’s support and technical services on an annual basis in accordance with the terms set out in the Service Level Agreement. The Term Plans are customisable to the End User’s requirements and in addition to the terms stated hereunder are governed by the terms stated in the service or purchase order entered into between Netmonastery and You. You may contact Netmonastery at (insert email / form) to know more about Netmonastery’s Term Plans.
Netmonastery Partner Plan: If You are a Partner, you will be authorized to market, resell and/ or distribute the Software and the End Users subscribing to use the Software through the Partner will be granted a non-exclusive, non-transferrable, non-sublicensable, non-assignable, revocable and limited licence to use and avail the features of the Software, in accordance with the terms set out in the Netmonastery Partner Agreement, which You will be required to enter with Netmonastery. If You are a Partner who is a managed security service provider, You will be granted a non-exclusive, non-transferrable, non-sublicensable, non-assignable, revocable and limited licence to use and avail the features of the Software to provide managed security services to Your customers in accordance with the terms set out in the Netmonastery Partner Agreement, which You will be required to enter with Netmonastery. Netmonastery further provides an option to additionally avail of Netmonsatery’s support and technical services for each End User on annual basis in accordance with the terms set out in the Service Level Agreement. You may be entitled to provide services through the Software to Your customers, subject to You and Your customers complying with the terms of this Agreement and any other document executed with Netmonastery.
Further Enhancement Rights: Netmonastery hereby grants the End User a further right to write and integrate standard and specific DNIF Rules / Modules into the Software, to customize and suit the internal requirements of the End User by incorporating the End User’s own set of DNIF Rules in addition to the standard rules of the Software and customizing enrichment capabilities of the Software to insert specific data points such as application specific tags (like user records) or data from vulnerability reports, subject to the respective Business Partner Agreement if the End User is a Partner or an End User who access the Software through a Partner.
- When the Software is availed by You under any of the Subscription Plans, which require an annual commitment, Netmonastery will invoice You on a monthly basis for the usage of the Software, including for the usage of the Software and indexing of logs in excess of the Data Threshold. You are advised to track Your usage though the Software and console / dashboard provided, regularly. Netmonastery’s ‘Toggle Usage Calculator’, made available on the DNIF Website, is indicative of the amount that You will be charged for usage of the Software and indexing of logs in excess of the Data Threshold. Notwithstanding anything to the contrary, Netmonastery may, at its discretion and subject to Applicable Law, require You to purchase additional log indexing volume prior to the indexing of logs in excess of the Data Threshold.
- The Licence Fee for the Subscription Plans, as set out at https://dnif.it/pricing.html shall supersede any previous arrangement and or service or purchase order placed by You either with Netmonastery and / or its Partner.
- The Licence Fee may be modified only by Netmonastery. Netmonastery does not grant authority to any third party to offer the Software at a Licence Fee in variation with the Licence Fee mentioned on the DNIF Website or as specifically communicated to You.
- The Licence Fee is subject to applicable taxes, payable in (Netmonastery’s sale jurisdiction) and the End User shall be liable to pay an aggregate of the Licence Fee and the applicable taxes, if any.
DNIF RULES / MODULES
STANDARD DNIF RULES & LIBRARY
Subject to the terms of the plan subscribed by You, Netmonastery will make available and may at its discretion continue to make available in the future, various standard DNIF Rules / Modules for Your use, subject to the use being for lawful purposes. These are contained in a library maintained by Netmonastery and are accessible to End Users through the Software. The End User’s accessibility of the standard DNIF Rules / Modules and library may vary and may be subject to the End User’s subscription of either the Subscription Plans and / or Term Plans and/ or Netmonestary Partner Plan. The DNIF Rules / Modules are written in Netmonastery’s proprietary DNIF Query Language (‘DQL’). The standard DNIF Rules / Modules are intended for analysis of indexed data and are for pre-defined general data analysis.
Subject to the terms of the plan subscribed by You, Netmonastery permits You to modify only these standard DNIF Rules / Modules and provides You with the tools to do so. Netmonastery disclaims any and all liability with respect to the accuracy of the analysis of the indexed data by Your use of the standard DNIF Rules / Modules. Netmonastery is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified DNIF Rules / Modules.
SPECIFIC DNIF RULES
Subject to the terms of the plan subscribed by You, You may create specific DNIF Rules / Modules for integration with the Software, using the DQL made available by Netmonastery. Other than for the purpose of providing You with support services, Netmonastery neither receives nor audits and is not responsible for the specific DNIF Rules / Modules written and integrated by You or any third party You may have engaged.
Generally, the accuracy of analysis of indexed data is subject to various factors including but not limited to integration of the Software by You with Your existing system and networks, the compatibility of the Software with Your system, third party licensed and / or open source products or services, accuracy of source data from third party applications, that You may have installed. Netmonastery does not guarantee the accuracy of any analysis of indexed data either by Your use of the standard DNIF Rules / Modules and / or specific DNIF Rules / Modules. Therefore, You undertake to indemnify and hold harmless Netmonastery, to the extent permitted by law, from any and all claims, demands, actions, losses, damages and liabilities of whatsoever nature by virtue of or arising from any act or omission to act based on the analysis of indexed data. Netmonastery does not guarantee the compatibility of DNIF Rules/ Modules with third party applications.
As stated, Netmonastery allows End Users, Partners, community members and generally users of DQL, to submit and share feedback, suggestions, specific DNIF Rules / Modules and other content through the DNIF Website (‘Sourced Content’). By submitting Sourced Content, You warrant that (a) You (which term for the purpose of this clause shall include any and all persons submitting Sourced Content to Netmonastery) are the sole author and owner of the Sourced Content; (b) You are at least 18 years old and Your submission has been made under a lawful authority granted to You, which authority includes the right to assign the Sourced Content to Netmonastery; and (c) use of any Sourced Content You supply will not violate the terms of this Agreement and will not cause injury to any person or entity. If You submit any Sourced Content to Netmonastery, You automatically grant, or warrant that the owner of such Sourced Content has expressly assign all intellectual property rights to the Sourced Content or in case You do not have the ability to assign, grant, Netmonastery a royalty-free, perpetual, irrevocable, worldwide, unlimited licence to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the Sourced Content material in any media or medium, or any form, format, or forum now known or hereafter developed. Netmonastery may sublicense its rights through multiple tiers of sublicenses. You should not submit any Sourced Content to Netmonastery that You do not wish to license to Netmonastery. You grant Netmonastery the right to use the name and description that You submit in connection with any Sourced Content, including specific names assigned to DNIF Rules / Modules written by You. You further agree that the inclusion of the Sourced Content either in the Software or as a part of Netmonastery’s product or service offerings shall not create any right of claim or interest in You in the Software and You specifically indemnify Netmonastery from any and all claims, losses, damages, notices, including reasonable attorney’s fees that may arise from the use of the Sourced Content by Netmonastery.
RESERVATION OF RIGHTS
You own the systems on which You have installed the Software. However, Netmonastery retains ownership of the Software itself at all times. Notwithstanding anything to the contrary stated herein, Netmonastery further owns and asserts its copyright in the standard DNIF Rules / Modules made available in Netmonastery’s library and its proprietary DQL. The standard DNIF Rules / Modules and DQL are made available by Netmonastery on its DNIF Website for Your use with the Software and for no other purpose.
Netmonastery reserves all rights in the Software not granted to You, including the right to update, upgrade, modify and / or alter the Software in any manner it may deem fit at any time. Any update or alteration of the Software may require You to reinstall the Software either completely or to the extent required for integration of the update. Netmonastery may provide commercially viable technical support to You and / or the Partner for integration of the Software pursuant to any alteration of the Software by Netmonastery.
Netmonastery further reserves the right to modify and / or amend any of the subscription plans offered by Netmonastery to the extent that such modification shall take effect after the completion of the subscription period for existing Subscription Plans.
Subject to this Agreement, other agreements that You may enter with Netmonastery and any agreement You may have with the Partner, You will have the exclusive right to use the DNIF Rules / Modules created by You for Your use. However, Netmonastery reserves the right to create, alter, modify, use and commercially exploit the DNIF Rules / Modules presently existing and / or created in the future, which right shall include the right to integrate the DNIF Rules / Modules in its subscription and / or product offerings which may form either a part of the Software or may be provided independently. You agree to disclaim any copyright in DNIF Rules / Modules written by You.
The terms of this Agreement govern the Licence granted to You herein and any updates, upgrades, modifications and / or alterations, unless such updates, upgrades, modifications and / or alterations are accompanied by a separate licence, in which case the terms of the separate licence will govern Your use of the Software.
The standard DNIF Rules / Modules are made accessible by Netmonastery for the limited purpose of being used for integration with the Software. You may modify or replace only these standard DNIF Rules / Modules or write specific DNIF Rules / Modules with the use of DQL; provided that: (i) the specific DNIF Rules / Modules and / or modified standard DNIF Rules / Modules are used by a single End User; and (ii) You otherwise comply with the terms of this Licence and any applicable licensing terms governing use of the DNIF Rules / Modules and the Software. Netmonastery does not provide any technical or other support with respect to the analysis of indexed data through the DNIF Rules / Modules.
You shall not make the Software available over a network where it can be used by multiple End Users at the same time. You may make a copy of the Software in machine-readable form for backup purposes only and You acknowledge and agree that the backup copy must include all copyright or other proprietary rights contained in the original Software. Except as and only to the extent expressly permitted in this Agreement, or by Applicable Law, You shall not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Software or any part thereof;
You shall not determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software;
You shall not rent, lease, sell, transfer, assign, sublicense, distribute, disclose or otherwise create any third party rights in the Software in any form or make the Software available or accessible to third parties in any manner other than from the DNIF Website except as expressly permitted under an agreement executed by You and Netmonastery. Further, You shall not transfer, assign, sublicense, distribute, disclose, or otherwise create any third party rights in either the standard or specific DNIF Rules / Modules or DQL, except as expressly permitted under an agreement executed by and between You and Netmonastery;
You shall not otherwise access or use the Software except as expressly authorized under this Agreement or other agreements executed by You and Netmonastery and undertake not to use the Software for any unlawful or immoral purpose including but not limited to the circumvention of law, illegal purpose or the commission of offences.
LICENCE FEE & PAYMENTS
You agree to pay the licence fee as more particularly set out on the DNIF Website and available at the URL https://dnif.it/pricing.html, which may be as amended, updated or modified from time to time or as agreed under Your respective agreements with Netmonastery, in consideration of the grant of the Licence as set out in Clause 3 above (hereinafter referred to as the ‘Licence Fee’). The Licence Fee is subject to the following general terms:
THIRD PARTY CONSULTANTS
The End User may permit its internal and external consultants, agents, employees and/ or affiliates to access and use the Software solely on End User’s behalf in respect of the Licence, subject to the terms of this Agreement. Any such access or use will be subject to the same limitations and restrictions that apply to the End User under this Agreement, and the End User will be jointly and severally liable for any actions and or omissions of the consultants, agents, employees and/ or affiliates’ actions relating to or use of the Software.
MAINTENANCE AND SUPPORT
Netmonastery provides support services in the manner more specifically described on the DNIF Website (as per the subscription plans) or as set out in the Service Level Agreement.
Netmonastery’s support services for the Subscription Plans extends only to technical support towards the integration and use of the Software. Netmonastery is not under obligation to provide support services for any matters relating to and arising out of integration with third party platforms deployed on the End User’s system and / or network unless and specifically provided under the terms of any of the Subscription Plans or an agreement with Netmonastery, either presently made available or may be made available in the future.
The Software may be packaged and integrated for use in conjunction with other third party platforms developed and maintained by third parties such as software vendors, Partners, OEM’s, etc. (‘Integrated Software’). To the extent that the Software is integrated with or provides access to any third-party software or services, Netmonastery has no express or implied obligation to provide any technical or other support for such Integrated Software or services, other than as specifically provided by Netmonastery along with the packaging or terms of the Integrated Software. You may contact the appropriate software vendor, Partner, OEM or service provider directly for technical support and customer service related to the Integrated Software, services and/or products, unless the technical support and customer services for certain functions of the Integrated Software are specified to be provided by Netmonastery.
The Intellectual Property Rights worldwide shall remain with Netmonastery. You hereby acknowledge that no title to the Intellectual Property in the Software is transferred to You and You will not acquire any rights to the Software, whether by implication, operation of law or otherwise, except in accordance with the Licence granted herein. Notwithstanding anything to the contrary, the parties herein understand and acknowledge that the Software is only being licensed and not sold to the End User under this Agreement.
You recognize and agree that the Software is the property of Netmonastery and contains valuable assets and proprietary information of Netmonastery. Accordingly, except as expressly permitted herein, You will not, and will not permit any person or third party to: (a) publish, transmit, reproduce, create derivatives of or otherwise utilize the Software in any form, format or media; (b) merge the Software with any other data, information or content, other than indexed data and for the purpose of which the Software is to be used; (c) reverse engineer or otherwise attempt to derive the algorithms, databases or data structures upon which the Software is based; (d) distribute, sublicense, rent, lease or loan the Software; (e) use the Software for the business needs of any third person or entity, including without limitation, providing any services to any third parties; (f) remove, bypass or circumvent any electronic or other forms of protection measure included in or with the Software; (g) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Software; or (h) otherwise use or access the Software or any derivatives, including Integrated Software for any purpose not expressly permitted under this Agreement, including, without limitation, for commercial purposes except as expressly permitted under an agreement executed by and between You and Netmonastery.
MONITORING & AUDIT RIGHTS
Netmonastery does not collect either indexed data logs or the resultant data analysis. This information is stored on Your hardware and systems. However, Netmonastery’s employees, consultants and/ or affiliates including Partners, may be required to access the End User’s stored information/ data to the extent necessary to conduct maintenance and provide support services with respect to the Software and to ensure that the End User is using the Software in the manner permitted under the Licence and for the purpose provided under this Agreement.
PERSONALLY IDENTIFIABLE INFORMATION & PRIVACY
The End User understands and agrees that during the registration process with Netmonastery, Netmonastery will collect and retain limited personally identifiable data/ information of the End User, including without limitation, the name, Entity details, contact details, billing information (excluding credit card details), etc. (‘End User Information’) The ownership of the End User Information will at all time be exclusively that of the End User. The End User Information will be accessed only by persons required to access the information and is not shared with third parties without the End User’s consent.
Netmonastery’s commitment to protect End User Information is subject to Netmonastery’s requirements under Applicable Law and Netmonastery reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, Netmonastery may disclose the End User’s identity and contact information, if requested by a government or law enforcement body or under any other legal action. You expressly acknowledge that Netmonastery shall not be liable for damages or results arising from such disclosure and You agree not to bring any action or claim against Netmonastery for such disclosure.
You represent and warrant that You, have the legal power and authority to enter into this Agreement. You further represent and warrant that You have nether falsely identified Yourself nor provided any false information to gain access to the Software and that any billing information provide by You, either of Yourself or the Entity (in either case, the End User) is accurate, true and correct and that You have the express or implied authority to make payments on behalf of the End User. You further represent and warrant to abide by all representations and warranties listed in this Agreement.
DISCLAIMER OF WARRANTY
Except as expressly set forth in this Agreement, the Software, is provided “as is” with no warranties whatsoever, express or implied. The accuracy of the analysis of indexed data is subject to Your best use of the DNIF Rules / Modules. To the full extent permitted by law, Netmonastery disclaims all warranties other than as expressly set forth herein including any implied warranties of merchantability or fitness for particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of the course of dealing or trade usage. Without limitation of the generality of the foregoing, Netmonastery does not warrant that the functioning and/ or the use of the software will be uninterrupted, error free or secure, or that all defects will be corrected.
In respect of the Free Tier Plan of the Software, the End User acknowledges and agrees that due to the limited support provided by Netmonastery, the Software may develop bugs or errors during integration with the End User’s system and could cause other issues. The End User agrees that such Software is provided ‘AS IS’ without any warranty whatsoever, and Netmonastery disclaims any warranty or liability whatsoever. The warranties provided by Netmonastery either expressly or by implication do not apply to the further enhancement and/ or development to the Software made by the End User as stated in Clause 4.3 (specific DNIF Rules / Modules) if the Software (a) has been altered, except by Netmonastery or its Partners, (b) has not been installed, operated, repaired, updated to the latest version, or maintained in accordance with instructions supplied by Netmonastery from time to time, (c) has been subjected to misuse and / or negligence.
LIMITATION OF LIABILITY
To the full extent permitted by Applicable Law and notwithstanding any failure of essential purpose of any limited remedy or limitation of liability: (a) Netmonastery and its affiliates, subsidiaries, officers, directors, employees will not be liable for any special, indirect, incidental, consequential or punitive damages (including any damages arising from loss of use, loss of data, lost profits or business interruption) arising out of or relating to this Agreement or the subject matter hereof; and (b) Netmonastery’s total cumulative liability arising out of or relating to this Agreement or the subject matter hereof will not exceed one month’s subscription / Licence Fee paid by the End User to Netmonastery for the Software under any of the Paid Plans and in any case shall not exceed USD 500, regardless of whether such liability arises from contract, indemnification, warranty, tort (including negligence), strict liability or otherwise, and regardless of whether Netmonastery has been advised of the possibility of such loss or damage. In addition, End User, and not Netmonastery, is solely responsible for the accuracy, quality and security of the End User’s data and for maintaining a backup of all such data, and for ensuring the security and integrity of the End User’s data, computers, networks and systems (including with respect to protecting against malware).
Netmonastery has no obligation to indemnify the End User with respect to: (a) use of the Software in a manner that is not permitted under this Agreement or that is inconsistent with the terms of the Licence and Your respective agreements with Netmonastery; (b) enhancements made upon the Software (and not to the Software itself) by the End User; (c) the combination of Software with hardware or other enhancement not provided by Netmonastery, or with third-party services, processes or materials; (d) End User’s continued use of the Software or other allegedly infringing activity after receiving notice of the alleged infringement; or (e) any version of the Software that is no longer supported by Netmonastery (hereinafter referred to as the ‘Excluded Use’).
The End User agrees to indemnify, defend and hold harmless Netmonastery against any claim, demand, suit or proceeding brought against Netmonastery by a third party arising out of or relating to any Excluded Use, and the End User will pay all damages finally awarded against Netmonastery by a court of competent jurisdiction.
TERMINATION OF LICENCE
The Licence is effective until the expiration of the subscription under a Subscription Plan, expiration of Your respective agreements with Netmonastery or as otherwise terminated. Your rights under the Licence will terminate automatically without notice from Netmonastery if You fail to comply with any term(s) of this Licence. Upon the termination of the Licence, You must cease all use of the Software and destroy all copies, full or partial, of the Software. Clause 10 (Intellectual Property), Clause 12 (Personally Identifiable Information & Privacy), Clause 13 (Representation), Clause 14 (Disclaimer of Warranty), Clause 15 (Limitation of Liability), Clause 16 (Indemnity), Clause 18 (Compliance with Law) & Clause 19 (Governing Law & Dispute Resolution) will survive any expiration or termination of this Agreement.
The Licence granted hereunder will terminate, automatically and without notice, if You (or any of Your subsidiaries, corporate affiliates or agents) initiate directly or indirectly, or take a direct financial interest in, any assertion of a patent or copyright: (i) against Netmonastery or any of its Partners, (ii) against any party if the assertion of a patent or copyright arises in whole or in part from any software, technology, product or service of Netmonastery or any of its Partners, or (iii) against any party relating to the Software. Notwithstanding the foregoing, if Netmonastery or any of its Partners files a claim or suit alleging infringement of Intellectual Property against You, this Licence granted hereunder will automatically terminate.
COMPLIANCE WITH LAW
You must comply with all applicable Indian and international laws governing export / import of the Software and the transfer of data, including the Indian Export Control Regulations and SCOMET Guidelines and Procedures issued by the Department of the Directorate General of Foreign Trade, Government of India. You must not download and install the Software in any country or territory in violation of Indian trade embargoes or trade sanctions, including regulations issued by the Government of India or in violation of the Applicable Law in the country or territory in which You intend to download and install the Software. You will indemnify, defend and hold Netmonastery harmless from and against any claim, demand, suit or proceeding, and all damages, liabilities, costs and expenses arising from Your failure to comply with this Clause.
You agree to use the Software in compliance with all Applicable Laws, including local laws of the country or region in which You download and use the Software. In the event that the Applicable Law in the country in which You download and use the Software does not permit or restricts the transfer of End User Information to Netmonastery, You may not be able to use the Software.
GOVERNING LAW & DISPUTE RESOLUTION
The terms of this Agreement and the Licence shall be governed by the substantive laws of India, without giving effect to the conflicts of law principles of any jurisdiction. For End User’s, other than those located in India, this Licence shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Any dispute arising out of or in connection with this Agreement and / or the Licence, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration (‘MCIA Rules’), which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Mumbai, India. The Tribunal shall consist of one arbitrator, selected from the panel of arbitrators with technical experience in the field of information technology. The language of the arbitration shall be English. The law governing this arbitration agreement shall be the Arbitration and Conciliation Act, 1996 (as amended and re-enacted at the relevant time). The law governing the Agreement and Licence shall be the law of the Republic of India, without giving effect to the conflicts of law principles of any jurisdiction. For End User’s, other than those located in India, this Licence shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
The End User may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Netmonastery may assign this Agreement in whole or in part without any reference to the End User.
All notices required or permitted under this Agreement will be in writing and delivered by email, registered mail, postage prepaid with return receipt requested, and in each instance, will be deemed given upon receipt. All communications to Netmonastery will be addressed to Netmonastery Network Security Private Limited, 2nd Floor, Reliable House, Kanjur Marg (w), Mumbai 400078, Maharashtra, India. All communications to the End User will be addressed to the email address provided by You at the time of registration with Netmonastery.
Netmonastery will not be responsible for any failure or delay in its performance under this Agreement, for reasons beyond its reasonable control, including, but not limited to, penetration events such as hacking, malware, etc., internet outage, server breakdowns, server downtime, system incompatibility, strikes, labor disputes, lockouts, war, acts of terror, riot, acts of God or governmental action and / or restrictions.
This Agreement constitutes the entire agreement between Netmonastery and You with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of any additional terms and conditions You are required to accept if You choose additional services provided by Netmonastery or special terms agreed to between You and Netmonastery. No amendment to or modification of this Agreement will be binding unless in writing and signed by Netmonastery.
Published by Netmonastery Network Security Private Limited on 18 June 2019.