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End User License Agreement

  1. Application of the EULA

    1. The EULA applies to your use of Druid (as that term is defined below).  By downloading, installing and/or using the Druid:
      1. you agree to the EULA; and
      2. where you download, install and/or use Druid on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to the EULA on that person’s behalf and that, by agreeing to the EULA on that person’s behalf, that person is bound by the EULA.
    2. If you do not agree to the EULA, you are not authorised to download, install, access and/or use Druid, and you must not do so.

  2. Interpretation

    1. In the EULA, the following terms have the stated meaning:
      • Device:  a desktop or other device that is approved by us in writing for use with Druid.
      • Documentation:  user and technical documentation or instructions made available by us and designed to enable you to properly use and operate Druid (if any), and includes any update of the documentation.
      • Druid:  our proprietary software called Druid and includes any Update.
      • End Users:  your end users, being individuals to whom you provide general IT support services and who will have access to Druid to create Outputs.
      • EULA:  this End User License Agreement, comprising clauses 1 to 11 inclusive, as the EULA is updated under clause 11.6.
      • Fees:  subject to clause 6.3, the applicable Fees set out on the Website, as may be updated from time to time by us under clause 11.6.
      • Intellectual Property Rights:  includes copyright, and all rights existing anywhere in the world conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  
      • Output:  the output created by Druid when an End User activates Druid, which is forwarded to your support desk, with preliminary information on an IT issue related to the End User’s Device.
      • Payment Terms:  the payment terms set out on the Website for the Fees, as may be updated from time to time by us.
      • Personal Information:  information about an identifiable individual (a natural person), and includes personal data, personally identifiable information and equivalent information under applicable privacy laws.
      • Purpose:  the ordinary use of the Druid to undertake a preliminary assessment of an IT issue affecting an End User’s Device for your lawful business purposes.
      • Sales Tax:  includes goods and services tax, value added tax, or any other type of applicable sales tax.
      • Support Services:  the services described in clause 5.
      • Start Date:  the date that you first download Druid.  
      • Update:  a new version of Druid released to you by us from time to time, including to provide bug fixes and resolve other technical issues.  
      • We, us, or our:  Druid Lab Limited, New Zealand company number 8180396.
      • Website:  the internet site at www.druidtech.com, or such other site notified to you by us.
      • Year:  a 12 month period from the Start Date or anniversary of that date.
      • You or your:  you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
    2. In the EULA:
      • words in the singular include the plural and vice versa; 
      • a reference to including and similar words do not imply any limit;
      • a reference to a party includes that party’s permitted assigns;
      • a reference to a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity; and
      • no term of the EULA is to be read against a party because the term was first proposed or drafted by that party.

  3. License

    1. We grant to you, and you accept, a non-exclusive, non-transferable, and non-sublicensable license for the duration of the EULA to use Druid and the Documentation solely for the Purpose within New Zealand on the terms of the EULA.  
    2. You must procure each End User’s compliance to the EULA, including procuring the compliance of any person for whom the End User works.  A breach of the EULA by an End User or that person is deemed to be a breach of the EULA by you.

  4. License conditions

    1. You must:
      1. use Druid, the Documentation, and any Output for lawful purposes only and must not copy, translate, decompile, reverse-engineer, resell, modify, vary, sub-license or otherwise deal in Druid or the Documentation except:
        1. as expressly provided for in the EULA; or
        2. to the extent expressly permitted by any law or treaty that is in force in your location where that law or treaty cannot be excluded, restricted or modified by the EULA;
      2. ensure that Druid and the Documentation are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
      3. not install Druid on any device that is not a Device;
      4. operate Druid strictly in accordance with the Documentation;
      5. maintain all proprietary notices on Druid and the Documentation
      6. promptly install any Update supplied by us;
      7. ensure Druid is operated on IT systems and Devices that have in place an active internet connection and technical and organisational measures and safeguards that protect against security and data breaches and other security risks and that comply with best industry practice, including by implementing and maintaining up-to-date antivirus and anti-malware software, properly configured firewalls, regular security patches and updates, and strong access controls and authentication mechanisms; and
      8. where an End User is not a member of your personnel (e.g. where you provide IT services to third parties), you must ensure you have in place a written agreement with the End User (or the organisation with which they work) that is:
        1. consistent with the EULA; and
        2. excludes our liability to the End User (and any organisation for which they work) in connection with their use (or inability to use) Druid and/or any Output.
    2. In respect of Outputs:
      1. you are responisble for:
        1. ensuring the content of the Output complies with applicable laws; and
        2. procuring all licenses, authorisations and consents (including consents from individuals relating to Personal Information) required for: (a) you to use Druid and create Outputs, including to use, store and otherwise process all data and Personal Information included within an Output; and (b) us (including our personnel) to process the Outputs and to exercise our rights and perform our obligations under this EULA in respect of Outputs.  Without limit, you acknowledge that Druid may take a “screen shot” of the relevant Device and include it in an Output when Druid is activated by an End User, if that functionality is activated by you.  You must have the End User’s consent to take and process that “screen shot”.  The “screen shot” functionality may be switched off by you at any time;
      2. Druid will transmit Outputs from End Users to you.  Druid does not access and/or retain Outputs except to the extent that you supply them to receive Support Services;
      3. you acknowledge and agree that to the extent an Output contains Personal Information, in collecting, holding and processing that information through Druid, the Supplier is acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law; and
      4. you indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Output infringes the rights of that third party (including Intellectual Property Rights and privacy rights).

  5. Support services

    1. We will provide you the Support Services subject to you having:
      1. complied with the EULA and the Documentation, including paying all Fees when due;
      2. maintained a proper operating environment for the use of Druid in accordance with any guidance from us and the Documentation;
      3. promptly installed any Update supplied by us; and
      4. first used reasonable efforts to resolve any issue by referring to the Documentation.
    2. Where you consider on reasonable grounds that there is a material failure of Druid to perform in accordance with the Documentation (Issue), we will:
      1. provide access to a ticketing system for you to log an Issue and to receive support in the form of consultation, assistance and advice in relation to the Issue; and
      2. use reasonable efforts to assist in the resolution of the Issue (taking into account the nature and severity of the Issue).

  6. Fees

    1. The grant of the license in clause 3.1 and the provision of the Support Services is subject to You paying into our nominated bank account electronically the Fees plus Sales Tax (if any) on the Payment Terms and in cleared funds and without set off.
    2. You acknowledge that Druid operates on a node licensing basis and includes functionality to monitor the number of Druid activations (End User installations of Druid) used by recording a Device identifier when Druid is activated on a new Device.  We may access and use these identifiers to determine the Fees that payable by you and to monitor your compliance with the EULA.  Without limiting our other rights and remedies, if we determine that you have not been paying Fees for all of the Devices on which Druid is installed, we may charge you, and you must pay, Fees in arrears for those Devices.  You must obtain all consents and authorisations (including from End Users) required for us to access and use those identifiers for the purposes described in this clause.
    3. Where the provision of Druid becomes subject to a tax, duty, levy, tariff or similar charge imposed by one country on the goods and/or services imported from another country (together, a tariff) (including where the tariff is imposed on Druid after it has been purchased (a retrospective tariff)), we may adjust the Fees so that the amount received by us covers the agreed Fees plus the full amount of the tariff that we are required to account for and/or pay in respect of Druid.  The adjusted Fees are deemed to be the Fees set out on the Website.

  7. Intellectual property  

    1. Druid and related IP:  
      1. From the date of creation or development, we (and our licensors) own all Intellectual Property Rights in Druid and the Documentation, including any enhancement, modification or derivative work.  You must not dispute those rights.  
      2. As between us, you own the IP in any Output.
    2. If you provide us with ideas, comments or suggestions relating to Druid or the Documentation (together feedback):
      1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material enhancements, modifications or derivative works), are owned solely by us; and
      2. we may use or disclose any feedback for any purpose.

  8. Warranties

    1. To the maximum extent permitted by law:
      1. you (and your End Users) access and use Druid at your own risk.  You must satisfy yourself of the adequacy of Druid and any Output;
      2. we are not liable or responsible to you or any other person for any claim, damage, loss, liability and cost under or in connection with the EULA, Druid, the Support Services, and the Documentation, or your access and use of (or inability to access or use) Druid, the Support Services, and the Documentation. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise;
      3. our warranties are limited to those set out in the EULA and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
      4. without limiting the rest of clause 8.1, we provide Druid on an “as is” and “as available” basis and make no representation or warranty concerning the quality of Druid, the Support Services, or the Documentation, and do not promise that Druid, the Support Services, or the Documentation will:
        1. be fit for any purpose or of merchantable quality;
        2. be error-free, bug-free, or will operate without interruption; or
        3. remain properly calibrated, or will (or will continue to) operate on your IT systems.
      5. You acknowledge and agree that the Outputs are intended to be general guidance only and an Output is not intended to replace the need for a professional assessment of an IT issue.  Without limiting the previous sentence, you are responsible for:
        1. any reliance or decision that you make based on an Output;
        2. ensuring an Output is correct; and
        3. keeping backups of Outputs.  
    2. Where any condition or warranty cannot be excluded by law and Druid, the Support Services, or the Documentation does not meet that the condition or warranty, to the extent permitted by law, at your written request within one month of the breach of condition or warranty arising, we will refund you the Fees paid by you for the month in which that breach first arose.  Other than the right to terminate, the refund will be your sole remedy against us for a breach of warranty under this clause 8.2.
    3. You agree and represent that you are acquiring Druid, and entering the EULA, for the purpose of trade. The parties agree that:
      1. to the maximum extent permissible by law, no consumer protection laws (including the New Zealand Consumer Guarantees Act 1993) apply to the supply of Druid or this Agreement; and
      2. it is fair and reasonable that the parties are bound by this clause 8.4.

  9. Liability

    1. To the maximum extent pemitted by law and only to the extent that clauses 8.1 and 8.3 do not apply, our maximum aggregate liability in any Year under or in connection with the EULA or relating to Druid, the Documentation, an Output or the Support Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Fees paid by you to us in the previous Year (which, in the first Year of the EULA, is deemed to be the total Fees paid by you from the Start Date to the first event giving rise to liability).  
    2. We are not liable to you under or in connection with the EULA for any:
      1. loss of profit, revenue, savings, business, data and/or goodwill; or
      2. consequential, indirect, incidental, punitive, exemplary, or special damage or loss of any kind.  
    3. Each party must take reasonable steps to mitigate any loss or damage, cost, or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the EULA.
    4. We will not be responsible, liable, or held to be in breach of the EULA for any failure to perform its obligations under the EULA or otherwise, to the extent that the failure is caused you (or your End Users) failing to comply with your obligations under the EULA or by your (or your End Users’) negligence or misconduct.
    5. No action or claim arising under or in connection with the EULA, regardless of form, may be brought by you more than 12 months after you became aware, or reasonably ought to have been aware, of the circumstances giving rise to the action.
    6. You acknowledge that breach of the EULA may result in loss to us that may not be adequately compensated by payment of damages and we are entitled to equitable relief, including enforcing our rights by specific performance or injunction proceedings.

  10. Term and termination

    1. Termination rights:  
      1. Each party may immediately terminate the EULA if the other party (or any End User in your case) breaches any provision of the EULA.
      2. Either party may terminate the EULA on no less than 30 days’ notice.
    2. Consequences of termination:  
      1. Termination of the EULA does not affect either party’s rights and obligations accrued before that termination or expiry.
      2. On termination, you and your End Users must, immediately cease to use Druid and must:
        1. pay all Fees for the rights and services provided prior to the termination date;
        2. de-install Druid from all of your (and your End Users’ – this may require you to procure an End User or another third party to de-install Druid) IT systems and Devices, and delete or destroy all copies of Druid and any Documentation in your (and your End Users’) possession or control; and
        3. promptly provide us with evidence that is sufficient for us to verify that Druid is fully de-installed and deleted.
    3. No compensation is payable by us to you as a result of termination of the EULA for whatever reason. 
    4. Without limiting any other right or remedy available to us, we may immediately and without notice restrict or suspend your (and/or any or all End Users’) access to and use of Druid if we consider that you have breached this EULA.
    5. Clauses which, by their nature, are intended to survive termination of the EULA, including clauses 4.1h, 4.2, 6, 7, 8, 9, 10.2, 10.3, 10.5, and 11.8, continue in force.  

  11. General

    1. We are not liable to you for any event that is beyond our reasonable control.
    2. A notice given by a party under the EULA must be delivered to the other party via email to an email address notified by the other party for this purpose.
    3. Any illegality, unenforceability or invalidity of a provision of the EULA does not affect the legality, enforceability or validity of the remaining provisions of the EULA.
    4. No person other than you and us has any right to a benefit under, or to enforce, the EULA.
    5. For us to waive a right under the EULA, that waiver must be in writing and signed by the waiving party.
    6. We may vary the EULA or the Fees by giving at least 30 days’ notice.  If you do not agree to the variation, you may terminate the EULA on no less than 30 days’ notice, provided the notice is received by us before the effective date of the variation.  If you do not terminate the EULA in accordance with this clause, you are deemed to have accepted the variation.
    7. You may not assign or transfer any right or obligation under the EULA without our prior written consent, which may be given subject to conditions.  You remain liable for your obligations under the EULA despite any approved assignment or transfer.
    8. The EULA is governed by, and must be interpreted in accordance with, the laws of New Zealand.  Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with the EULA.
    9. The EULA sets out everything agreed by the parties relating to the Software and the EULA and supersedes and cancels anything discussed, exchanged or agreed prior to the date the Licensee agrees to the EULA.