2 Steps Terms and Conditions of Use
These Terms and Conditions of Use (General Terms) apply to the purchase of a licence by you
(you or Customer) from 2 Steps Technology Pty Ltd ABN 41 641 847 654 (Company) to install
and use the 2 Steps software (Licensed Software) on a subscription basis. These General
Terms set out the terms and conditions under which you may access and use the Licensed Software.
Please read these General Terms carefully before continuing installation. By clicking the
[I Accept] button, or otherwise accepting these General Terms by downloading, installing,
accessing or using the Licensed Software, you acknowledge that you have read, understood and
agreed to follow and be bound by these General Terms.
If you do not agree to these General Terms, you must not download, install, access or use the Software.
We recommend that you print or save a local copy of these General Terms for your own records.
1. Purchasing the Licensed Software
1.1 Purchasing directly from the Company
If the Customer has purchased the Licensed Software directly from the Company, these General Terms,
and the terms of the End User Licence Agreement entered into by the Customer and the Company,
will govern the provision by the Company of, and the access and usage by the Customer of,
the Licensed Software.
1.2 Purchasing through authorised resellers
(a) If the Customer has purchased the Licensed Software through an authorised reseller of the
Company, these General Terms will govern the Customer's access to and usage of the Licensed Software.
However, the Customer's payment obligations for the Licensed Software will be with the authorised
reseller, not the Company. The Customer will have no direct fee payment obligations to the Company
for the provision of the Licensed Software.
(b) Any terms agreed to between the Customer and the authorised reseller that are in addition to
these General Terms are solely between the Customer and the authorised reseller. No agreement between
the Customer and an authorised reseller is binding on the Company, or will have any force or effect
with respect to the rights in, or the operation, use or provision of, the Licensed Software.
2.1 Subscription Period
These General Terms will commence on the Start Date and continue for the Subscription Period unless
extended in accordance with clause 2.2 or terminated earlier in accordance with the Agreement.
Where the Customer has purchased the Licensed Software directly from the Company, the parties may agree
to extend the Term for any further periods as may be agreed by the Company and the Customer in writing.
Where the Customer has purchased the Licensed Software from an authorised reseller, any extension of the
Term is to be agreed between the Customer and the authorised reseller, and the extended Term will be as
specified in the relevant order submitted by the authorised reseller and accepted by the Company in
respect of the extension.
3. Software Licence
Subject to the Customer's compliance with the terms of these General Terms, the Company grants to the
Customer a worldwide, non-exclusive, non-transferable and non-sublicensable licence during the Term to
install and use the Licensed Software for the Customer's internal business purposes.
The Company will provide the Customer with Documentation describing the operation of the Licensed Software
under normal circumstances. Except as expressly stated, no source code or technical-level documentation to
the Licensed Software are licensed under these General Terms.
4. Restrictions on use of Licensed Software
4.1 Customer obligations
The Customer agrees that:
(a) it may only install and use the Licensed Software for its internal business purposes and must
not rent, lease, loan, re-sell, transfer, sub-licence, distribute, disclose or otherwise provide the
Licensed Software to any third party;
(b) it must not modify, adapt or create derivative works of the Licensed Software;
(c) it must not copy the Licensed Software (except as required to run the Licensed Software and
for reasonable backup purposes), or decompile, disassemble or reverse-engineer the Licensed Software,
or determine (or attempt to determine) any source code, algorithms, methods or techniques embodied in
the Licensed Software;
(d) it must not alter, remove or obscure any copyright, trademark, patent, or other proprietary
notices, legends or symbols from the Licensed Software, including any Splunk proprietary legends or notices;
(e) it will use reasonable efforts to prevent unauthorised third parties from accessing the
(f) it must not use, or permit any use of, the Licensed Software in a way which is unacceptable.
Use is unacceptable if it:
(i) involves anything which is false, defamatory, harassing or obscene;
(ii) involves unsolicited electronic messages;
(iii) would involve the contravention of any person's rights;
(iv) would cause the Company to be in breach of any licences granted by Splunk or any other third-party
licence required by the Company to distribute the Licensed Software;
(v) may offend any laws; or
(vi) may otherwise be regarded by the Company, on reasonable grounds, to be unacceptable
(the Company may from time to time notify the Customer of the circumstances which the Company regards
as unacceptable); and
(g) it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability,
appropriateness and rights ownership in all Customer Data. The Customer also agrees that there are
limitations to the Licensed Software's ability to assist in the Customer's business and that the
Licensed Software will not detect faulty Customer Data, does not take into account all of the matters
that should be considered in decision making regarding matters of relevant to the Customer's business
and should not be used as a substitute for the Customer's independent and appropriately qualified
decisions regarding matters relevant to the Customer's business.
4.2 Minimum Technical Requirements
(a) The Customer is solely responsible for ensuring that the Minimum Technical Requirements, which are required for the Licensed Software to operate as intended, are met.
(b) The Customer agrees and acknowledges that the Customer's right to install and use any third party products specified to in the Minimum Technical Requirements, including the Splunk Software, is governed by the terms of the relevant third party licence or service agreement and not by these General Terms. Title to such third party products remains with the applicable licensor or owner. The Customer must ensure that it complies with the terms of any relevant third party licence or service agreement.
4.3 Third party open source software
The Customer acknowledges that any third party open source software provided within or contained in the Licensed Software is provided 'as is' and without warranty of any kind.
4.4 Patches and upgrades
The Customer must accept all patches, bugs, fixes, maintenance and service packs (collectively, Patches) necessary for the proper function and security of the Licensed Software, as and when such Patches are generally released by the Company. The Customer will also receive any updates or upgrades of the Licensed Software as made available by the Company in its discretion, at no additional charge to the Customer.
The Customer indemnifies and holds the Company harmless against any loss or liability suffered or incurred by the Company or its Representatives arising from or in connection with:
(a) any breach of these General Terms by the Customer;
(b) any breach of law or third party Intellectual Property Rights by the Customer or its Representatives; or
(c) the negligent act or omission or wilful misconduct of the Customer or its Representatives.
The Customer is not obligated under this indemnity to the extent any claim arises from the Company's breach of these General Terms.
5. Support services
If the Customer has purchased the Licensed Software directly from the Company, the Company will provide to the Customer the support services specified in the End User Licence Agreement between the Company and the Customer. If the Customer has purchased the Licensed Software from an authorised reseller, the authorised reseller will be solely responsible for provision of support services pursuant to any agreement between the Customer and the authorised reseller.
6. Fees and payment
The provisions of this clause 6 only apply where the Customer has purchased the Licensed Software directly from the Company. If the Customer has purchased the Licensed Software from an authorised reseller, the payment of fees is solely between the Customer and the authorised reseller.
6.2 Subscription Fees
In consideration for granting the Licence, the Customer will pay the Company the Subscription Fees in accordance with the Payment Terms, pursuant to the End User Licence Agreement between the Company and the Customer.
6.3 Late payment
The Customer must not withhold or offset any amounts due under these General Terms. The Company may terminate or suspend the Licence until all past due amounts are paid in full after giving the Customer written notice and an opportunity to remedy the breach. Without limiting the Company's other rights and remedies under these General Terms, any late payment will be subject to any costs of collection and will bear interest at the rate of 1% per month or fraction thereof until paid.
6.4 Certain taxes
All amounts payable to the Company under these General Terms are exclusive of, and the Customer must pay and indemnify the Company against, all sale/use, gross receipts, value-added, GST, personal property or other taxes (including interest and penalties imposed thereon) on the transaction contemplated in these General Terms, other than taxes based on the net income or profits of the Company.
7. Intellectual Property Rights
7.1 Ownership and use of Intellectual Property Rights
(a) Except as provided in clause 3, nothing in these General Terms transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
(b) The Company expressly reserves all rights in the Licensed Software and the Documentation not specifically granted to the Customer under these General Terms. The parties acknowledge and agree that:
(i) as between the Company and the Customer, all rights (including Intellectual Property Rights), title and interest in the Licensed Software and Documentation will remain with the Company; and
(ii) the Licensed Software is provided on a subscription basis for duration of the Subscription Period, and not 'sold' to the Customer.
(c) The Customer acknowledges that Intellectual Property Rights in the Licensed Software and the Documentation are, as between the parties, the Confidential Information of the Company.
7.2 Customer Data
The Company acknowledges that the Customer is the owner of the Intellectual Property Rights in the Customer Data.
8.1 The Company's warranties
(a) The Company warrants that:
(i) it has the right to grant the Licence to the Customer in accordance with these General Terms; and
(ii) the Licensed Software will materially comply with the Specifications when used in accordance with the Documentation and these General Terms.
(b) The Licensed Software may come with consumer guarantees under the Australian Consumer Law (as contained in Schedule 2 of the Consumer and Competition Act 2010 (Cth)) which cannot be excluded. Nothing in these General Terms affects the Customer's statutory rights as a consumer (if applicable with respect to the Licensed Software).
(c) Except as expressly set out in clauses 8.1(a) and 8.1(b), the Licensed Software, the Documentation and other deliverables under these General Terms are provided 'as is' and, to the maximum extent permitted by law, without any express or implied warranty, guarantee or other assurance of quality, accuracy, integration, merchantability, fitness for a particular purpose, conformity with specifications, reliability or functionality. Without limitation of the generality of the foregoing, the Company does not warrant that use of the Licensed Software will be uninterrupted, error-free or secure, or that all defects will be corrected.
(d) Without limiting clause 8.1(c), the Company:
(i) makes no representation and disclaims all liability in respect of the availability or performance of the Splunk Software or any other third party products identified in the Minimum Technical Requirements; and
(ii) makes no representation that the Licensed Software or the Documentation is certified by Splunk or that the performance of the Licensed Software is guaranteed by Splunk.
8.2 Customer's warranties
The Customer warrants that:
(a) it has full power and authority to enter into and perform its obligations under these General Terms; and
(b) these General Terms constitute a legal, valid, binding obligation, enforceable against the Customer in accordance with its terms.
9.1 Exclusion of Consequential Loss
Neither party will be liable to the other party under or in respect of these General Terms (including under an indemnity) for any Consequential Loss, whether in contract, in tort (including negligence), under statute or otherwise.
9.2 Maximum liability
Despite any other provision of these General Terms and to the extent permitted by law, the Company's maximum liability in connection with these General Terms, whether in contract, tort (including negligence), under statute or otherwise, is limited to the amount paid by the Customer to the Company under these General Terms in the 12 months prior to the cause of action arising.
10.1 Treatment of Confidential Information
Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
10.2 Use of Confidential Information
A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient's obligations or exercising the Recipient's rights under these General Terms.
10.3 Disclosure of Confidential Information
A Recipient may not disclose Confidential Information of the Discloser to any person except:
(a) Representatives of the Recipient who require it for the purposes of the Recipient performing its obligations or exercising its rights under these General Terms or as part of any internal review processes and then only on a need to know basis;
(b) with the prior written consent of the Discloser;
(c) if the Recipient is required to do so by law or a stock exchange; or
(d) if the Recipient is required to do so in connection with legal proceedings relating to these General Terms.
10.4 Disclosure by Recipient
A Recipient disclosing information under clause 10.3(a) or 10.3(b) must ensure that persons receiving Confidential Information from it are aware it is the other party's Confidential Information and do not disclose the information except in the circumstances permitted in clause 10.3.
10.5 Return of Confidential Information
Subject to clause 10.6, on the Discloser's request, the Recipient must, immediately deliver to the Discloser all documents or other materials containing or referring to the Discloser's Confidential Information which are:
(a) in the Recipient's possession, power or control; or
(b) in the possession, power or control of persons who have received Confidential Information from the Recipient under clause 10.3(a) or 10.3(b).
The obligation in clause 10.5 does not apply to Confidential Information of the Discloser that the Recipient requires in order to perform its obligations under these General Terms or is otherwise entitled to retain.
(a) Unless otherwise expressly stated in these General Terms, prices or other sums payable or consideration to be provided under or in accordance with these General Terms are exclusive of GST.
(b) If a party makes a taxable supply under or in connection with these General Terms, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.
(c) The supplier must, as a precondition to the payment of GST under clause 11(b), give the other party a tax invoice.
(d) If an adjustment event arises in connection with a supply made under these General Terms, the supplier must give the other party an adjustment note.
(e) If these General Terms requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable.
12.1 Right to termination
Either party may terminate these General Terms immediately by giving notice in writing to the other party if:
(a) the other party has committed a material breach of these General Terms and the breach is incapable of remedy;
(b) the other party has committed a material breach of these General Terms that is capable of remedy and does not rectify that breach within 10 Business Days of being given a written notice of the breach; or
(c) subject to clauses 415D, 434J and 451E of the Corporations Act, the other party becomes Insolvent.
12.2 Obligations on expiry or termination
(a) Upon any termination or expiry of these General Terms, the Licence and any other rights granted to the Customer under these General Terms will automatically terminate, and the Customer must:
(i) immediately cease to use the Licensed Software and Documentation;
(ii) at the Company's election, return or destroy all copies of the Licensed Software and Documentation; and
(iii) pay the Company all amounts due under these General Terms.
(b) Upon termination of these General Terms, the Company will have no obligation to refund any Subscription Fees or other amounts received from the Customer.
12.3 Preservation of rights
(a) Termination of these General Terms for any reason does not extinguish or otherwise affect any rights or remedies of either party which arose prior to the time of termination, or the provisions of these General Terms which by their nature survive termination.
(b) Without limiting the above, clauses 4 (Restrictions on use of Licensed Software), 7 (Intellectual Property Rights), 9 (Liability and indemnity), 10 (Confidentiality), 12.2 (Obligations on expiry or termination), 12.3 (Preservation of rights) and 15 (General) survive termination of these General Terms.
13. Force majeure
(a) The Company will not be liable for any delay or failure to perform its obligations under these General Terms if such delay or failure is due to a Force Majeure Event. The Company will notify the Customer of the Force Majeure Event as soon as reasonably practicable and will take reasonable steps to mitigate the effects of the Force Majeure Event.
(b) If a delay or failure is caused or anticipated due to Force Majeure, the Company's obligations under these General Terms will be suspended. If a delay or failure by the Company to perform its obligations due to a Force Majeure Event exceeds 60 days, either party may terminate the Agreement on providing written notice to the other.
14.1 Service of notices
A notice, demand, consent, approval or communication under these General Terms (Notice):
(a) must be in writing and in English directed to the recipient's address as notified by the recipient (as varied by any Notice);
(b) must be hand delivered, left at or sent by prepaid post or email to the recipient's address or email address as notified by the recipient (as varied by any Notice); and
(c) may be given by an agent of the sender.
14.2 Effective on receipt
A Notice given in accordance with clause 14.1 takes effect when received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered or left at the recipient's address, on delivery;
(b) if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia; and
(c) if sent by email, when received by the recipient's email server (whether or not classified as spam) unless the sender receives an automated message that delivery of the email has failed,
but if the delivery or transmission under paragraph (a) or (c) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours after that delivery, receipt or transmission.
14.3 Process service
Any process or other document relating to litigation, administrative or arbitral proceedings in relation to these General Terms may be served by any method contemplated by this clause in addition to any means authorised by law.
A party must not assign, transfer, novate, encumber or otherwise deal with all or part of its rights or obligations under these General Terms without the other party's prior written consent.
15.2 Governing law
These General Terms is governed by the law in force in Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that State.
15.3 Discretion in exercising rights
A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless these General Terms expressly states otherwise.
15.4 Partial exercising of rights
If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.
15.5 Approvals and consents
By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
15.6 Remedies cumulative
The rights and remedies provided in these General Terms are in addition to other rights and remedies given by law independently of these General Terms.
15.7 Variation and waiver
A provision of these General Terms or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
The indemnities in these General Terms are continuing obligations, independent from the other obligations of a party under these General Terms and continue after these General Terms ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under these General Terms.
These General Terms may consist of a number of copies, each signed by one or more parties to these General Terms. If so, the signed copies are treated as making up the one document.
15.10 Entire agreement
These General Terms, and (where the Customer purchased the Licensed Software directly from the Company) the End User Licence Agreement between the Customer and the Company, constitute the entire agreement between the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter, whether oral or written.
If the whole or any part of a provision of these General Terms is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of these General Terms has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of these General Terms or is contrary to public policy.
15.12 No relationship
Nothing in these General Terms will be taken to constitute the Company as an employee, agent, partner or joint venture of Customer nor is the Company authorised to represent itself as acting, or to incur any obligation, on behalf of Customer.
In these General Terms, the following definitions apply unless the context requires otherwise.
Business Day means a day that is not a Saturday, Sunday, a bank holiday or a public holiday in Melbourne, Victoria.
Business Hours means 9.00am to 5.00pm on a Business Day.
Company means 2 Steps Technology Pty Ltd ABN 41 641 847 654.
Confidential Information means, in relation to the Discloser, all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties or their Representatives before, on or after the Start Date relating to the business, technology or other affairs of the Discloser, including the details of the Licensed Software, but does not include information:
(a) which is in or becomes part of the public domain other than through breach of these General Terms or an obligation of confidence owed to the Discloser;
(b) which the Recipient can prove by contemporaneous written documentation was:
(i) already known to it at the time of disclosure by the Discloser (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(ii) independently developed by the Recipient without reference to the Confidential Information of the Discloser; or
(c) which the Recipient acquires from a source other than the Discloser or any of its Representatives where such source is entitled to disclose it on a non-confidential basis.
Consequential Loss means any indirect or consequential loss or damage which, although in the contemplation of the parties at the time they entered into these General Terms, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach including, but not limited to, loss of profits, loss of data, loss of revenue, loss of opportunity or loss of goodwill.
Customer Data means all data, information, text, drawing or other material which is inputted into, or used in connection with, the Licensed Software by the Customer.
Discloser means the party disclosing Confidential Information.
Documentation means any documentation provided by the Company which sets out the details of the Licensed Software.
Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party, including (but not limited to):
(a) act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;
(c) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority; or
(e) any faults, defects, incorrect operation of or other circumstances affecting telecommunications, networks, systems and any other facilities used or required by or on behalf of the Customer for accessing and making use of the Licensed Software (other than the Licensed Software itself), including without limitation where the Splunk Software becomes unavailable, or is modified by Splunk in a manner which renders the Licensed Software incompatible with the Splunk Software.
Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi- judicial body, department, commission, authority, tribunal, agency or entity.
GST means any goods and services or value added tax.
A person is Insolvent if:
(a) it is (or states that it is) an insolvent under administration or insolvent;
(b) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party); or
(c) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or
(d) it is otherwise unable to pay its debts when they fall due; or
(e) something having a substantially similar effect to (a) to (d) happens in connection with that person under the law of any jurisdiction.
Intellectual Property Rights means all intellectual property rights including, without limitation, copyright, designs, trade marks (whether registered or not), trade names, trade secrets, know-how, patents, invention, discoveries and any other rights of proprietary nature in, or the results of, intellectual activity in the industrial, commercial, scientific, literary or artistic field, whether registrable or not and wherever existing in the world.
Licence means the licence granted by the Company to the Customer in clause 3.1.
Licensed Software means the software known as '2 Steps' to be provided by the Company under these General Terms, which the Customer has purchased either directly from the Company or through an authorised reseller.
Minimum Technical Requirements means an existing installation of the Splunk Software.
Recipient means the party receiving Confidential Information.
Representative of a party includes an employee, agent, officer or contractor of that party.
Specifications means the specifications for the Licensed Software.
Splunk means Splunk Inc., a Delaware corporation with its principal place of business at 270 Brannan Street, San Francisco, California 94107, U.S.A.
Splunk Software means the software for monitoring and analysing real-time machine data created and offered by Splunk for license.
Start Date means:
(a) where the Customer has purchased the Licensed Software directly from the Company, the start date specified in the End User Licence Agreement between the Company and the Customer; or
(b) where the Customer purchased the Licensed Software from an authorised reseller, the start date specified in the relevant order submitted by the authorised reseller and accepted the Company to facilitate the provision of the Licensed Software to the Customer.
Subscription Fees means, where the Customer has purchased the Licensed Software directly from the Company, the fees payable by the Customer for the Licence as specified in the End User Licence Agreement between the Company and the Customer.
Subscription Period means:
(a) where the Customer has purchased the Licensed Software directly from the Company, the subscription period specified in the End User Licence Agreement between the Company and the Customer; or
(b) where the Customer purchased the Licensed Software from an authorised reseller, the subscription period specified in the relevant order submitted by the authorised reseller and accepted by the Company to facilitate the provision of the Licensed Software to the Customer.
Term means the term of these General Terms comprising the Subscription Period, as extended if applicable, unless terminated earlier in accordance with these General Terms.
Unless the contrary intention appears, a reference in these General Terms to:
(a) a document (including these General Terms) includes any variation or replacement of it;
(b) a clause is a reference to a clause in these General Terms;
(c) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(d) law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
(e) the singular includes the plural and vice versa;
(f) the word 'person' includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
(g) a particular person includes a reference to the person's executors, administrators, successors and substitutes (including, persons taking by novation) and assigns;
(h) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;
(i) the words 'include', 'including', 'for example' or 'such as' are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind;
(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, these General Terms or any part of it; and
(k) headings are included for convenience only and are not to affect the interpretation of these General Terms.