Nighthawk® End-User Licence Agreement

This end-user licence agreement (the Licence) is a legal agreement between you (Licensee or you) and MDSec Consulting Ltd of 32A Park Green Macclesfield SK11 7NA England (Licensor or we) for a suite of tools designed for security testers (Nighthawk® or Software), which includes computer software, and the online and offline documentation current at the date of the download of the Licence (Documentation).

WE LICENCE THE SOFTWARE FOR LAWFUL AND ETHICAL PENETRATION TESTING PURPOSES. WE RESERVE THE RIGHT TO CANCEL THE LICENCE AND MAKE A REPORT TO THE RELEVANT AUTHORITIES IF IT IS FOUND THAT THE SOFTWARE IS OR MAY BE BEING USED FOR UNLAWFUL ACTIVITIES. NIGHTHAWK® IS TO BE USED BY TECHNICALLY SKILLED END-USERS. IT IS YOUR RESPONSIBILITY TO ENSURE THAT THE SOFTWARE MEETS YOUR NEEDS AND BEHAVES IN A MANNER SAFE FOR YOUR REQUIREMENTS. THE LICENSOR DISCLAIMS LIABILITY FOR ANY DAMAGE CAUSED BY THE USE OF NIGHTHAWK® WHETHER OR NOT IT IS AWARE OR HAS BEEN ADVISED OF SUCH POTENTIAL DAMAGE.

NIGHTHAWK® IS SUITE OF TOOLS INCLUDING AN APPLICATION PROGRAMMING INTERFACE (API) WHICH REQUIRES A SUPPORTED OPERATING ENVIRONMENT OF UBUNTU 20 OR GREATER WITH PYTHON 3 AND NET CORE, A UNIVERSAL INTERFACE (UI) SUPPORTED ON WINDOWS 10 X 64 WITH .NET FRAMEWORK 4.5 OR GREATER AND A NATIVE AGENT WITH BACKWARDS COMPATIBILITY TO WINDOWS VISTA SERVICE PACK 2. YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE ORDERING OR INSTALLATION PROCESS. IN THIS CASE THE ORDERING PROCESS OR INSTALLATION WILL TERMINATE.

WARNING: NIGHTHAWK® IS DESIGNED TO TEST FOR SECURITY FLAWS AND CAN DO DAMAGE TO TARGET SYSTEMS DUE TO THE NATURE OF ITS FUNCTIONALITY. TESTING FOR SECURITY FLAWS INHERENTLY INVOLVES INTERACTING WITH TARGETS IN NON- STANDARD WAYS WHICH CAN CAUSE PROBLEMS IN SOME VULNERABLE TARGETS. YOU MUST TAKE DUE CARE WHEN USING THE SOFTWARE, YOU MUST READ ALL DOCUMENTATION BEFORE USE, YOU SHOULD BACK UP TARGET SYSTEMS BEFORE USE AND YOU SHOULD NOT USE THE SOFTWARE ON PRODUCTION SYSTEMS OR OTHER SYSTEMS FOR WHICH THE RISK OF DAMAGE IS NOT ACCEPTED BY YOU. WHERE THE LICENSEE USES THE SOFTWARE ON PRODUCTION SYSTEMS OR OTHER SYSTEMS, LICENSEE EXPRESSLY HEREBY ACCEPTS THE RISK OF DAMAGE AND RISK OF LOSS OF DATA OR LOSS OF USE IN RESPECT OF SUCH DATA AND SYSTEMS AND ACCEPTS THAT IT SHOULD NOT USE THE SOFTWARE ON ANY SYSTEMS FOR WHICH IT DOES NOT ACCEPT THE RISK OF DAMAGE, RISK OF LOSS OF DATA OR LOSS OF USE.

1. GRANT AND SCOPE OF LICENCE

1.1 In consideration of payment by you of any agreed licence fee and subject to your compliance with the terms of the Licence, the Licensor hereby grants to you a non-exclusive, non-transferable, non-sublicensable licence for the period (the Licence Period) specified in your order confirmation for the number of individual users specified therein to use the Software and the Documentation on the terms of the Licence.

1.2 Each copy of the Software is user-specific. Such user may not share that copy of the Software with any other person. Installation of Nighthawk® on an individual computer needs to be activated before it will operate. It is recognised that in the course of ordinary usage of the Software, individual users may need to install the Software on more than one computer. The Licensor reserves the right to limit the number of activations allowed per user, and to prevent further activations if this limit is exceeded.

1.3 This agreement may be updated from time-to-time and any alterations will be posted on our website. By continuing to access the Software after any changes have become effective, you agree to be bound by the revised terms.

1.4 You may:

1.4.1 download, install and use the Software for your internal business purposes only, where internal business includes the provision of authorised ethical security consulting to third parties; and

1.4.2 make one copy of the Software for back-up purposes only, provided that this is necessary for the activities permitted under condition 1.4.1;

1.4.3 receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be made generally available by the Licensor from time to time. Your use of such code, update, patches and error corrections is governed by the terms of the Licence;

1.4.4 use any Documentation in support of the use permitted under condition 1.4.1 and make such numbers of copies of the Documentation as are reasonably necessary for its lawful use; and

1.4.5 analyse the behaviour and performance of the documented functionality of the Software and disclose the findings of such analysis to other employees or agents of the Licensee provided that such findings are provided simultaneously and in identical form to the Licensor and not provided or made available to any third party.

1.5.1 save as specified in condition 1.5.2 you may not resell the Software or, without the prior written consent of the Licensor, allow it to be used by any person other than the individual user for whom the Licence was purchased and you indemnify the Licensor against all costs (including legal costs) charges and expenses incurred by the Licensor as a result of the failure by you to comply with the provisions of this paragraph.

1.5.2 with prior written consent of the Licensor:

1.5.2.1 if you are authorised to carry out a procurement function for an organisation which is known to, and approved by, the Licensor, you may re-sell the Software to that named organisation provided that:

1.5.2.1.1 the Licensee procures that the purchaser is bound by the terms of this Licence for the benefit of the Licensor, with the ability for the Licensor to enforce such terms against the purchaser directly and that the Licensee indemnifies the Licensor against all costs (including legal costs) charges and expenses incurred by the Licensor as a result of (a) the failure of the Licensee to comply with the provisions of this paragraph 1.5.2; and/or (b) the re-sale by the Licensee of the Software to the purchaser;

1.5.2.1.2 the Licensee has purchased the Software directly from the Licensor.

1.5.3 If the Licensee is a purchaser who has lawfully obtained the Software other than by direct purchase from the Licensor, the Licensee may carry out the activities specified in sections 1.4.1 to 1.4.5 above and, in consideration of the Licensor agreeing to provide updates of the Software to the Licensee during the Licence period, either directly or via the relevant intermediary or intermediaries, the Licensee agrees to be bound by the Licence directly in favour of the Licensor

2. LICENSEE'S WARRANTY AND UNDERTAKINGS

2.1 The Licensee warrants that it is not purchasing licences to the Software as a consumer, but will be using the Software in its business and that any users placing orders for the Software and/or accepting these Terms are duly authorised by the Licensee to acquire licences to the Software.

2.2 Except as expressly set out in the Licence or as permitted by any local law, the Licensee undertakes:

2.2.1 not to use (or allow to be used) the Software or the Documentation for any unlawful purposes, particularly as the Software contains functionality that can be used to attack and compromise computer systems, and the Licensee shall be responsible for all losses, costs, liabilities or other damages incurred by the Licensor in connection with any claim by a third party in connection with a breach by the Licensee of this obligation or any damage to, or compromise or loss of functionality of, any third party’s computer systems arising out of Licensee’s use of the Software;

2.2.2 to keep confidential any credentials provided by the Licensor enabling the Licensee to log in to the Licensor's server (for the purposes of downloading product builds and licence keys and to perform product activation);

2.2.3 to obtain all necessary authorisations from system owners, licensors, operators and other parties prior to using the Software thereon;

2.2.4 unless agreed by the Licensor, not to copy the Software or Documentation except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;

2.2.5 not to rent, lease, sub-license, or loan the Software or the Documentation;

2.2.6 not to translate, merge, adapt, vary, alter or modify the the whole or any part of the Software,
nor permit the Software or any part of it to be combined with, or become incorporated in, any other programmes;

2.2.7 not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988 or other applicable law) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software programme, and provided that the information obtained by the Licensee during such activities:

2.2.7.1 is used only for the purpose of achieving inter-operability of the Software with another software programme; and

2.2.7.2 is not unnecessarily disclosed or communicated without the Licensor's prior written consent to any third party; and

2.2.7.3 is not used to create any software which is substantially similar to the Software.

2.2.8 to supervise and control use of the Software and ensure that the Software is used by the Licensee's employees and representatives in accordance with the terms of the Licence;

2.2.9 to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor to the Licensee via its account, immediately on receipt (and failure to do so may result in the Licensee's ineligibility for support pursuant to thisAgreement);

2.2.10 to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

2.2.11 to include the copyright and trademark notices of the Licensor on all entire and partial copies the Licensee makes of the Software or the Documentation on any medium;

2.2.12 not to provide or otherwise make available the Software in whole or in part (including but not limited to programme listings, object and source programme listings, object code and source code), in any form to any person without prior written consent from the Licensor;

2.2.13 subject to condition 1.5.2, not to use the Software as part of an automated service or other offering to third parties;

2.2.14 not to engage in any activity, practice or conduct which would constitute an offence under (i) sections 1, 2 or 6 of the Bribery Act 2010, if such activity, practice or conduct had been carried out in the UK or (ii) the United States Foreign Corrupt Practices Act.

2.2.15. YOU ACKNOWLEDGE THAT THE SOFTWARE IS SUBJECT TO UNITED KINGDOM EXPORT AND SANCTIONS CONTROLS AND MAY BE SUBJECT TO EXPORT AND IMPORT CONTROLS IN OTHER COUNTRIES. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE MAY NOT BE EXPORTED (OR RE-EXPORTED FROM A COUNTRY OF INSTALLATION) DIRECTLY OR INDIRECTLY, UNLESS YOU OBTAIN ALL NECESSARY LICENCES FOR SUCH EXPORT OR RE-EXPORT. YOU WARRANT AND REPRESENT THAT YOU ARE (a) NOT UNDER THE CONTROL OF ANY GOVERNMENT OR ANY COUNTRY TO WHICH THE UNITED KINGDOM HAS NOT AUTHORISED EXPORT OF THE SOFTWARE AND (b) NOT AN EMBARGOED OR OTHERWISE RESTRICTED DESTINATION, ORGANIZATION OR INDIVIDUAL UNDER ANY US EXPORT LAW OR REGULATION;

2.2.16 YOU SHALL NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SOFTWARE OR DOCUMENTATION DIRECTLY OR INDIRECTLY TO THE CLASS OF COUNTRIES REFERRED TO IN CONDITION 2.2.15 OR TO NATIONALS OR RESIDENTS OF THOSE COUNTRIES;

2.2.17 YOU REPRESENT THAT NEITHER YOU NOR THE PERSONS WHO WILL USE THE SOFTWARE LICENSED TO YOU ARE AN ENTITY OR PERSONS DESIGNATED OR SPECIFIED (a) UNDER REGULATIONS MADE UNDER THE SANCTIONS AND ANTI- MONEY LAUNDERING ACT 2018 (THE UK SANCTIONS LIST) OR (b) IN THE UNITED STATES OFFICE OF FOREIGN ASSETS CONTROL SPECIALLY DESIGNATED NATIONALS AND BLOCKED PERSONS LIST, UNITED STATES COMMERCE DEPARTMENT DENIED PERSONS LIST OR SIMILAR UNITED STATES PROHIBITED LIST;

2.2.18 YOU WILL NOT ALLOW THE SOFTWARE TO BE USED FOR ANY PURPOSES PROHIBITED BY THE LAW OF ENGLAND AND WALES OR THE LAW OF ANY JURISDICTION IN WHICH THE SOFTWARE IS USED, INCLUDING, WITHOUT LIMITATION, FOR THE DEVELOPMENT, DESIGN, MANUFACTURE OR PRODUCTION OF NUCLEAR, CHEMICAL OR BIOLOGICAL WEAPONS OF MASS DESTRUCTION.

2.2.19 you agree to be responsible for all liability claims, actions, or causes of action, together with the legal costs of the Licensor in bringing or defending the same, arising by reason of, or in any way relating to, the Licensee's actions or the activities of its employees, agents, or contractors under the Licence.

3. SUPPORT AND UPGRADES

3.1 Purchase of a licence for Nighthawk® entitles you to free standard product support by email at
the Licensor's sole discretion.

3.2 If new releases of Nighthawk® are offered for sale, these may be made available freeof charge to you for the duration of your Licence provided that you enter into a new licence agreement in respect of such new release.

4 THIRD -PARTY SOFTWARE

The Software may make use of third-party technology that is provided with the Software. The Licensor may provide certain notices to the Licensee in the Documentation, READMEs or notice files in connection with such third party technology. Third party technology will be licensed to the Licensee either under the terms of this Licence or, if specified in the Documentation, READMEs or notice files, under separate terms or as otherwise notified to the Licensor by the Licensee.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 The Licensee acknowledges that all intellectual property rights in the Software and the Documentation anywhere in the world belong to the Licensor, that rights in the Software are licensed (not sold) to the Licensee, and that the Licensee has no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of the Licence. The Licensee acknowledges that it has no right to have access to the Software in source code form.

5.2 The integrity of the Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software of the Licensor are not misappropriated. The Licensee must not attempt in any way to remove or circumvent any such TPM, nor supply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in its possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPM.

5.3 Licensor shall be permitted to audit (at least once annually and in accordance with Licensor standard procedures, which may include on-site and/or remote audit) the usage of the Software. Licensee shall cooperate reasonably in the conduct of such audits. In the event an audit reveals that Licensee underpaid licence fees, Licensee shall pay such underpaid fees based on the then-current Licensor price list, terms and conditions in effect at the time of the audit, and shall execute an additional order to affect the required licensing of any additional quantities. Reasonable costs of Licensor’s audit shall be paid by Licensee if the audit results indicate excess usage. Licensor reserves all rights at law and equity with respect to both Licensee’s underpayment of Licence fees and usage in excess of the licensed quantities.

6. THIRD-PARTY IPR CLAIMS AND INDEMNITY

6.1 The Licensor will defend the Licensee against any claim, demand, suit or proceeding made or brought against the Licensee by a third party alleging that any Software or services infringe or misappropriate such third party's intellectual property rights (a Third-Party IPR Claim), and will indemnify the Licensee from any direct damages, finally awarded against Licensee as a result of, or for amounts paid by Licensee under a settlement approved by the Licensor in writing of, a Third-Party IPR Claim, provided that, in each case the Licensee:

6.1.1 promptly gives the Licensor written notice of the Third-Party IPR Claim;

6.1.2 gives the Licensor, at its sole option, the sole control of the defence and settlement of the Third-Party IPR Claim; and

6.1.3 gives the Licensor all reasonable assistance, at the Licensor's expense.

If the Licensor receives information about an infringement or misappropriation claim related to the Software or services, the Licensor may in its discretion and at no cost to the Licensee (i) modify the Software or services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a licence for the Licensee's continued use of the Software or services in accordance with this Agreement, or (iii) terminate the Licensee's subscriptions for such Software or services upon 30 days' written notice and refund the Licensee any prepaid fees covering the remainder of the term of the terminated licence.

The above defence and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Software or services are the basis of the Third-Party IPR Claim; (2) a Third-Party IPR Claim arises from the use or combination of the Software or services or any part thereof with software, hardware, data, or processes not provided by Licensor, if the Software or use thereof would not infringe without such combination; (3) a Third-Party IPR Claim arises from Software or services for which there is no charge or has been provided on a free trial basis; or (4) a Third-Party IPR Claim arises from the Licensee's or a third-party's materials or application or the Licensee's breach of this Agreement. This condition provides the Licensor's sole liability to, and the Licensee's exclusive remedy against, the Licensor for any Third-Party IPR Claim.

6.2 Licensee will indemnify, defend, and hold harmless, Licensor and its owners, subsidiaries, affiliates and any of their respective successors, assigns, transferees, officers, directors, employees and agents (each, a Licensor Indemnitee), from and against any and all lawsuits, claims, demands, actions, fines, penalties, liabilities, losses, damages, costs and expenses (including, but not limited to, attorneys’ fees and expenses, and court costs, litigation costs, investigatory costs, the cost of engaging third parties, and fines or settlement amounts owed to, or other costs imposed on Licensor by a governmental agency (collectively, Losses)) arising from (a) Licensee’s breach of the Licence; (b) any damage to or loss of systems or data caused by Licensee’s use of the Software; (c) any failure to obtain all requisite permissions from the owners of the systems in connection with which Licensee uses the Software; and (d) any negligence, wilful misconduct or violation of applicable law of Licensee. Upon receipt of written notice from a Licensor Indemnitee of indemnifiable claims against a Licensor Indemnitee, the Licensee must promptly take necessary and appropriate action to protect the Licensor Indemnitee’s interests with regard to the claims. The Licensor Indemnitee is entitled to select counsel to participate in the defence to protect the interests of the Licensor Indemnitee at Licensor Indemnitee’s expense. The Licensee, in the defence of any claim or litigation, may not, except with the written consent of the Licensor Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to the Licensor Indemnitee of a release from all liability and blame with respect to the claim or litigation. The Licensor Indemnitee has the right at all times to accept or reject any offer to settle any claim or litigation against it, in its reasonable discretion.

7. LICENSOR'S WARRANTY

7.1 The Licensor warrants that for a period of 90 days from the date of purchase of the Software (Warranty Period) the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the runtime environment for which it was designed as referred to in the Documentation). This condition 6.1 does not apply in respect of Software for which there is no charge or has been provided on a free trial basis.

7.2 The Licensee acknowledges that the Software is provided "as is" and has not been developed to meet its individual requirements, and that it is therefore the Licensee's responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet its requirements.

7.3 The Licensee acknowledges that the Software may not be free of bugs or errors, and agrees that the existence of minor errors shall not constitute a breach of the Licence.

7.4 If, within the Warranty Period, the Licensee notifies the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from the Licensee having amended the Software or used it in contravention of the terms of the Licence, the Licensor will, at its sole option, either repair or replace the Software, provided that the Licensee makes available all the information that may be necessary to help the Licensor to remedy the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.

8. LICENSOR'S LIABILITY: ATTENTION IS DRAWN PARTICULARLY TO THE PROVISIONS OF THIS CONDITION

8.1 Nothing in the Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation or any other liability that cannot be limited by law.

8.2 Subject to condition 8.1, the Licensor's liability for losses suffered by the Licensee arising out of or in connection with the Licence (including any liability for the acts or omissions of its employees, agents and subcontractors) and Licensee’s use of the Software, whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall not include liability for:

8.2.1 loss of turnover, sales or income;

8.2.2 loss of business profits or contracts;

8.2.3 business interruption;

8.2.4 loss of the use of money or anticipated savings; 8.2.5 loss of information;

8.2.6 loss of opportunity, goodwill or reputation;

8.2.7 loss of, damage to or corruption of software or data; or

8.2.8 any other incidental, special, exemplary, punitive, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract, breach of warranty, strict liability or otherwise, and whether or not such party has been advised of the possibility of such loss or damage.

8.3 The Licence sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in the Licence. Any condition, warranty, representation or other term concerning the supply of the Software which might otherwise be implied into, or incorporated in, the Licence, or any collateral contract, whether by statute, common law or otherwise, including implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any warranties arising out of a course of dealing or usage of trade, is hereby disclaimed by Licensor and excluded to the fullest extent permitted by law.

8.4 The Licensor’s maximum aggregate liability under or in connection with the Licence, any collateral contract, or Licensee’s use of the Software, whether in contract, tort (including negligence), breach of warranty, strict liability or otherwise, shall be limited to the sum equal to 100% of the licence fee paid by Licensee to Licensor in the twelve (12) months preceding the date on which the cause of action giving rise to the liability occurred.
8.5 Licensor acknowledges and agrees that the limitations of liability in this condition 8 are an essential part of the basis of the bargain between Licensor and Licensee, and will apply even if the remedies available hereunder are found to fail their essential purpose.

9. DATA PROTECTION

9.1 By entering into the Licence, the Licensee consents that the Licensor may process the personal data that it collects from the Licensee in accordance with the Licensor's privacy policy https://www.mdsec.co.uk/privacy-policy/. The Licensee is responsible for ensuring it has in place all relevant consents, permissions or rights to share any personal data with the Licensor for the Licensor's use in accordance with the privacy policy and this Licence. In particular, the Licensor may use information it holds about the Licensee or its designated contacts for the purposes of, inter alia, sending out renewal reminders, questionnaires to certain categories of users including non- renewers and feedback requests.

Any questions, comments and requests regarding the Licensor's data processing practices may be addressed to nighthawk@mdsec.co.uk.

10. TERMINATION

10.1 The Licensor may terminate the Licence immediately by written notice to the Licensee if the Licensee or any of its users commit a material or persistent breach of the Licence, including without limitation, breach of conditions 2.2.15 – 2.2.18 or any failure to make any payment due to the Licensor by its due date, which the Licensee fails to remedy (if remediable) within 14 days after the service of written notice requiring the Licensee to do so.

10.2 Upon termination for any reason:

10.2.1 all rights granted to the Licensee under the Licence shall cease;

10.2.2 the Licensee must cease all activities authorised by the Licence;

10.2.3 the Licensee must immediately delete or remove the Software from all computer equipment in
its possession, and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Licensor that it has done so; and

10.2.4 the Licensee must immediately pay to the Licensor any sums due to the Licensor under the Licence.

11. TRANSFER OF RIGHTS AND OBLIGATIONS

11.1 The Licence is binding on the Licensee and the Licensor, and each of their respective
successors and assigns.

11.2 The Licensee may not transfer, assign, charge or otherwise dispose of the Licence, or any of its rights or obligations arising under it, without the Licensor's prior written consent.

11.3 Where Licensee is a company, the licences granted hereunder shall not extend to the Licensee's group members (meaning, in relation to any company, (a) that company, its subsidiaries, its ultimate holding company and all subsidiaries of such ultimate holding company, as such terms are defined in the Companies Act 2006, and (b) any entity that a party directly or indirectly controls, is controlled by, or is under common control with such party).

11.4 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of the Licence, or any of the Licensor's rights or obligations arising under it, at any time during the term of the Licence.

12. NOTICES

All notices given by the Licensee to the Licensor must be given to MDSec Consulting Ltd at nighthawk@mdsec.co.uk or 32A Park Green Macclesfield SK11 7NA, England. The Licensor may give notice to the Licensee at either the e-mail or postal address the Licensee provided to the Licensor when purchasing the Software, or if the Licensee has updated their account details on the website following the purchase of the Software, these details shall be used. Notice will be deemed received and properly served immediately when posted on the Licensor's website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

13. EVENTS OUTSIDE LICENSOR'S CONTROL

13.1 The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of the Licensor's obligations under the Licence that is caused by events outside its reasonable control (Force Majeure Event).

13.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond the Licensor's reasonable control and includes in particular (without limitation) the following:

13.2.1 strikes, lock-outs or other industrial action;

13.2.2 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat of or preparation for war;

13.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster;

13.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

13.2.5 impossibility of the use of public or private telecommunications networks; and

13.2.6 the acts, decrees, legislation, regulations or restrictions of any government.

13.3 The Licensor's performance under the Licence is deemed to be suspended for the period that the Force Majeure Event continues, and the Licensor will have an extension of time for performance for the duration of that period. The Licensor will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under the Licence may be performed despite the Force Majeure Event.

14. WAIVER

14.1 If the Licensor fails, at any time during the term of the Licence, to insist upon strict performance of any of the Licensee's obligations under the Licence, or if the Licensor fails to exercise any of the rights or remedies to which the Licensor is entitled under the Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.

14.2 A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.

14.3 No waiver by the Licensor of any of the provisions of the Licence shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.

15. SEVERABILITY

If any of the terms of the Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
16. NO PARTNERSHIP OR AGENCY

The Licence does not create or imply any relationship of agency or partnership between the Licensor and the Licensee.

16 ENTIRE AGREEMENT

16.1 The Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and the Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

16.2 We each acknowledge that, in entering into the Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us prior to entering into the Licence except as expressly stated in the Licence.

16.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in the Licence.

17. NO THIRD PARTY BENEFICIARIES

17.1 No provision of the Licence is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties to the Licence and their respective successors and assigns.

18. LAW AND JURISDICTION

18.1 The Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.

18.2 You acknowledge and accept that damages may be an inadequate remedy for breach or suspected or threatened breach of the Licence and that the Licensor may seek injunctive or other equitable relief against you.

Nighthawk® Licence Agreement 29/11/24