For Customers incorporated in Australia or New Zealand, the following provisions shall apply. All other provisions of the Agreement shall remain the same except as provided herein. To the extent of any inconsistency or contradiction between this Addendum and the body of the Agreement, the terms of this Addendum shall prevail.

1. Section 11.1 of the Agreement is hereby replaced with the following:

“11.1      Limited Warranties. Notwithstanding any other provisions in this Agreement, Checkmarx does not exclude, restrict or modify any conditions or warranties or guarantees which may be implied or imposed by Australian Consumer Law when you acquire goods and services as a Consumer.  Checkmarx warrants to Customer that: (a) for a period of thirty (30) days after initial delivery to Customer, the Software, when properly installed or delivered, and used by Customer, will operate in substantial conformity with the functional specifications set out in the Documentation; and (b) to the extent the Services include any work, Checkmarx will perform this work in a timely, professional and workmanlike manner and in substantial conformity with the applicable Scope of Work. “

2. Section 11.2 of the Agreement is hereby replaced with the following:

“11.2      Remedies. If Customer determines that the above-referenced warranties have been breached, Customer shall provide Checkmarx with prompt written notice documenting each such non-conformity. Within a reasonable time after receipt of Customer’s notice, Checkmarx shall, at Checkmarx’s sole discretion and to the extent permitted by applicable law as Customer’s sole and exclusive remedy: (a) deliver to Customer a workaround or correction of the non-conformity within a commercially reasonable time; or (b) as to the Software, if it is not feasible to offer Customer a workaround or correction within a reasonable timeframe, offer to Customer a similar product with substantially the same functionality as the non-conforming Software. If Checkmarx is unable to remedy the non-conformity as set out above and Customer has ordered the Software licenses or Services and paid the Fees directly to Checkmarx, Checkmarx shall apply a prorated credit (or prorated refund, if already paid by Customer) of Fees applicable to the non-conforming Service or Software. Alternatively, if Customer has ordered the Software licenses or Services and paid the Fees to an authorized Checkmarx reseller, Checkmarx will assist with coordinating a prorated refund of Fees paid or a prorated credit of Fees applicable to the non-conforming Service or Software from the authorized Checkmarx reseller.”

3. Section 11.4 of the Agreement is hereby replaced with the following:

“11.4      Disclaimer of Warranties. SUBJECT TO SECTION 11.6 AND THE LIMITED WARRANTY PROVIDED IN SECTION 11.1 AND TO THE EXTENT PERMITTED BY LAW, ALL SOFTWARE, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND CHECKMARX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. CHECKMARX EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CHECKMARX DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SERVICES OR DOCUMENTATION WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED AND/OR ERROR FREE, OR THAT THE SOFTWARE WILL DETECT OR RENDER CUSTOMER’S CODE FREE FROM ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.”

4. A new Section 11.6 is hereby added to the Agreement as follows:

“11.6.     Australian Consumer Law. When you acquire our Software and Services as a Consumer (as that term is defined in Australian Consumer Law), our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”

5. Section 13 of the Agreement is hereby replaced with the following:

“13. Limitations of Liability. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW (INCLUDING AUSTRALIAN CONSUMER LAW TO THE EXTENT APPLICABLE), CHECKMARX AND ITS AFFILIATES SHALL NOT BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OR DAMAGE TO DATA, REMEDIATION COSTS, LOSS OF GOODWILL, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, AND ANY AND ALL LOSSES SUFFERED BY A PARTY THAT CANNOT REASONABLY BE CONSIDERED TO ARISE NATURALLY FROM THAT BREACH OR EVENTS GIVING RISE TO THE LOSSES; REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE LIABILITY OF CHECKMARX AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO CHECKMARX UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.”

6. Section 16.1 of the Agreement is hereby replaced with the following:

“16.1 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of Victoria, Australia, and the Parties submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.”

7. Section 16.2.1 of the Agreement is hereby replaced with the following:

“16.2.1 Customers in Australia. For Customers incorporated in Australia or New Zealand, binding arbitration shall be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) and administered by the ICC. The arbitration shall be conducted in the English language in Melbourne, Victoria, Australia, unless otherwise agreed by the Parties.”

8. Section 17.18 of the Agreement is hereby replaced with the following:

“17.18    Contracting Entity. For Customers incorporated in Australia or New Zealand, the Checkmarx contracting entity is defined as Checkmarx Australia Pty Ltd.”