Cb Collective Defense Cloud Agreement
This Cb Collective Defense Cloud Agreement (the “Agreement”) is for Carbon Black Collective Defense Cloud (as further defined below) owned by Carbon Black, Inc. (“Carbon Black”). By enabling Your users to access and utilize Cb Collective Defense Cloud, You agree to these terms. If You do not agree to the terms of this Agreement, You may not, nor allow others to, install, access or utilize Cb Collective Defense Cloud for any purpose. If the Cb Collective Defense Cloud has been provided to You for evaluation purposes (“Evaluation Service”), the terms and conditions set forth below shall apply unless specific alternative terms are set forth for the Evaluation Service.
1. Definitions. In this Agreement, the following definitions shall apply (in addition to those set forth in the body of this Agreement):
“You” or “Your” means the party purchasing the Cb Collective Defense Cloud subscription.
“Initial Term” means the initial subscription term specified in the Order. Upon the conclusion of the Initial Term, this Agreement may be renewed for successive periods.
“Order” means an order by You for a subscription license to Cb Collective Defense Cloud.
“Cb Collective Defense Cloud” means the cloud-based software identification and information service provided by Carbon Black through Carbon Black’s software and services. Cb Collective Defense Cloud and all associated written or electronic documentation (“Documentation”) that is provided by Carbon Black to You for use in conjunction with the operation of Cb Collective Defense Cloud. The information delivered to You by Cb Collective Defense Cloud may be internally generated by Carbon Black or externally gathered from third-parties and while such information is believed to be reliable, such third-party information may not have been independently authenticated, tested, or verified in whole or in part.
2. Orders; Fees. You shall place Orders directly with Carbon Black or as directed by Carbon Black. No Order will be binding unless acknowledged and accepted in writing or by e-mail by Carbon Black. The fees for licensing the Cb Collective Defense Cloud shall be set forth in the Order (the “Fees”), and do not include taxes. You assume the obligation for and shall pay when due all present and future taxes, excluding any taxes on or measured by Carbon Black’s net income. All Fees are payable net thirty (30) days from the date of invoice, in U.S. dollars only.
3. Restrictions. You are granted (for the Term specified in the Order), for Your internal use only, a non exclusive, non-transferable right to access and use (in accordance with the Documentation) the Cb Collective Defense Cloud for the Carbon Black software in connection with Your license, access and/or use of the Carbon Black software only, for the number of licensed seats or units specified in the Order. The Cb Collective Defense Cloud provided under this Agreement is and shall remain, the sole and exclusive property of Carbon Black. Carbon Black reserves all other rights to the Cb Collective Defense Cloud and all intellectual property relating thereto not specifically granted in this Agreement. You shall not sell, transfer, rent, copy, duplicate, reverse engineer, reverse compile, modify or create derivative works of, tamper with or grant any rights in Cb Collective Defense Cloud, nor may you use Cb Collective Defense Cloud to conduct a service bureau or similar business for the benefit of third parties. You agree to display of any copyright and trademark notices incorporated by Carbon Black.
In addition, any Carbon Black software or services that may be used or downloaded by You or provided to You by Carbon Black in connection with Your use of Cb Collective Defense Cloud, including, without limitation any patch, update, upgrade, modification or other enhancement provided by Carbon Black with respect to such software or services, is solely provided to You subject to the terms and conditions of the applicable end user license agreement for such software or services (the “License Agreement”). Your Carbon Black software or services license serves as Your Registration to the extent it so indicates.
If access to the Cb Collective Defense Cloud has been provided to You as Evaluation Service, such use shall be (a) limited to thirty (30) days from delivery (the “Evaluation Period”), and (b) Evaluation Service may be used solely for Your internal evaluation of the suitability of the Evaluation Service and in no event for production use. In addition, promptly upon expiration of the Evaluation Period, You shall destroy all information obtained from use of the Evaluation Service and all related materials. At Carbon Black’s request, You will certify that Cb Collective Defense Cloud access has been disabled and return of all applicable, information and related materials.
You shall defend, indemnify and hold harmless Carbon Black from all claims, damages, and losses, howsoever arising and whether direct, indirect, or consequential, including all legal fees and expenses, arising from claims brought by any third party relating to Your use of the Evaluation Service.
4. Ownership. Unless otherwise agreed to in writing by Carbon Black, all written or electronic materials, including programs, files, specifications and documentation and any work product, patents, information, inventions or copyrightable material that are produced by Carbon Black or any of its employees or consultants during the course of its performance hereunder or results from the performance of any services by Carbon Black shall be the sole property of Carbon Black. You are granted a license to use such material to the extent necessary to obtain the benefits contemplated by the license granted by this Agreement.
5. Warranties; Disclaimer. Carbon Black warrants that for the Initial Term (“Warranty Period”), Cb Collective Defense Cloud will conform in all material respects to the applicable specifications. If Cb Collective Defense Cloud does not meet Carbon Black’s warranty during the Warranty Period, Carbon Black will (at its option), as Your sole and exclusive remedy, (a) repair or modify Cb Collective Defense Cloud so it will comply with the applicable warranty, or (b) refund the Fee for Cb Collective Defense Cloud on a pro rata basis within thirty (30) calendar days of the termination of the respective subscription license. Carbon Black warranties are for Your benefit only and are void if Cb Collective Defense Cloud is used in violation of the applicable Documentation or Carbon Black’s instructions. Notwithstanding any other provision of this Agreement, the information provided by Cb Collective Defense Cloud is provided on an “AS-IS” basis only. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR FREE OPERATION OR NON-INTRUSION DUE TO HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS. IN ADDITION, CB COLLECTIVE DEFENSE CLOUD MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CARBON BLACK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. FURTHER, NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES PROVIDED BY CARBON BLACK, OR ANY INFORMATION, CONTENT, OR DATA CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, CB COLLECTIVE DEFENSE CLOUD, WHETHER MADE BY CARBON BLACK EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY CARBON BLACK FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF CARBON BLACK WHATSOEVER.
NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, HOWEVER, EVALUATION SERVICE ARE PROVIDED “AS-IS” ONLY, WITHOUT WARRANTIES OF ANY KIND.
6. Limitation of Liability. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL CARBON BLACK OR ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RESELLERS, DISTRIBUTORS, OR CONTRACTORS (“RELATED PARTIES”) BE LIABLE TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS OR DATA OR OTHER ECONOMIC LOSS) REGARDLESS OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ADDITION, THE MAXIMUM LIABILITY OF CARBON BLACK AND ITS RELATED PARTIES, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO CIRCUMSTANCE EXCEED THE FEES PAID TO CARBON BLACK FOR THE SERVICE GIVING RISE TO THE LIABILITY, OR, FOR EVALUATION SERVICE, $100.00.
7. Term and Termination. Your right to access or use Cb Collective Defense Cloud shall terminate at the end of the subscription term set forth in an applicable Order, unless otherwise terminated as set forth herein. Either party may immediately terminate the Order if the other party: (a) fails to cure a material breach of these terms and conditions (provided such breach is capable of cure) within thirty (30) calendar days after its receipt of written notice regarding such breach; (b) becomes insolvent or commits an affirmative act of insolvency or makes an assignment for the benefit of creditors or takes similar action; (c) files a voluntary bankruptcy or similar petition or acquiesces to any involuntary bankruptcy or similar petition which is not dismissed within ninety (90) days; or (d) is adjudicated bankrupt or to similar effect. In the event of such termination, the non-defaulting party shall have no liability to the defaulting party in connection herewith, except that You shall pay Carbon Black the Fees due pro rata based on the term of the applicable Order(s). All provisions of this Agreement that reasonably may be interpreted or construed as surviving termination of this Agreement shall survive the termination of this Agreement.
9. Amendment. This Agreement may be changed only in writing signed by Carbon Black and You, and no effect shall be given to terms set forth in any purchase order, confirmation or similar document provided by You to Carbon Black.
(a) You agree that You will not use, distribute, transfer, or transmit the Licensed Service or Confidential Information in violation of U.S. export regulations.
(b) This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, U.S.A., excluding (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; and (iii) the Uniform Computer Information Transactions Act (UCITA) as adopted by any state.
(c) Neither party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld), except Carbon Black may assign its rights or delegate its duties under this Agreement to the surviving entity in a merger or consolidation or to a purchaser of all or substantially all the assets of its business. Any assignment or delegation in contravention of this provision shall be null and void. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. Nothing in the foregoing shall be deemed to prevent Carbon Black from using subcontractors in meeting its obligations hereunder.
(d) The failure by either party hereto at any time to require performance by the other party or to claim a breach of any provision of this Agreement shall not be construed as affecting any subsequent right to require the performance or to claim a breach with respect thereto.
(e) The provisions of this Agreement shall not be construed to establish any form of partnership, agency or other joint venture of any kind between You and Carbon Black, or to constitute either party as the agent, employee or legal representative of the other.
(f) If the performance by a party of any of its obligations under this Agreement (other than payment obligations) shall be interfered with by reason of any circumstances beyond the reasonable control of that party, including without limitation, fire, explosion, acts of God, war, revolution, terrorism, civil commotion, unavailability of supplies, or sources of energy or telecommunications, power failure, breakdown of machinery, labor strikes, slowdowns, picketing or boycotts, or governmental/administrative restrictions on the importation or exportation of products, then that party shall be excused from such performance while such circumstances exist.
(g) Any provision of this Agreement that is unenforceable shall not cause any other remaining provision to be ineffective or invalid.
(h) In the event a dispute between the parties hereunder with respect to this Agreement, the prevailing party shall be entitled to receive reimbursement for all associated reasonable costs and expenses (including, without limitation, attorneys’ fees).
(i) The Licensed Service utilizes “commercial computer software” or “commercial computer software documentation.” Absent a written agreement to the contrary, the U.S. Government’s rights with respect to such Licensed Service are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.