BY ISSUING AN ORDER TO CARBON BLACK (OR ITS AUTHORIZED RESELLER) OR OTHERWISE USING OR ACCESSING THE SOFTWARE OR SERVICES MADE AVAILABLE BY CARBON BLACK HEREUNDER, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” “YOUR” AND “CUSTOMER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES. ANY PURCHASE ORDER OR SIMILAR TERMS SHALL NOT APPLY.
This Cb Defense Agreement (this “Agreement”) is a legal agreement between the end user entity that has executed this Agreement (“You” or “Your”) and Carbon Black, Inc., a Delaware corporation (“Carbon Black”). This Agreement sets forth the terms and conditions that govern orders placed by You to access and use Carbon Black’s proprietary cloud-based software service (and any updates and modifications thereto) which is intended to provide a solution to detect and stop cyberattacks, Cb Defense software made available to You in object code only, including any patch, update, upgrade, modification or other enhancement or documentation made available by Carbon Black with respect to such software (collectively, the “Software”) and all related services (services and Software collectively, the “Services”) under this Agreement. If the Services have been made available to You for evaluation purposes (“Evaluation Services”), the terms and conditions set forth below shall apply unless specific alternative terms are expressly set forth for the Evaluation Services.
RIGHTS GRANTED: Carbon Black hereby grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, worldwide right to access and use the ordered Services only for Your own internal business operations. You may not sell or transfer reproductions of the Services to third parties in any way. You may only use the functionality in the Services and units as specified in an order, quote or invoice from Carbon Black that has been accepted by You (the “Order”).
Evaluation Services may be used solely for Your internal evaluation of the suitability of the Services and in no event for production use. You may not use the Services for any purposes not specifically permitted hereunder or, in the case of Software, on operating systems not specified in the Order or make the Software available to more operating systems than the number specified in the Order, or, if Evaluation Software, on no more than two hundred (200) operating systems or endpoints.
OWNERSHIP; COPYRIGHT: Title to the Software, and patents, copyrights and all other property rights applicable thereto and to the Services, shall at all times remain solely and exclusively with Carbon Black and Carbon Black’s licensors (“Carbon Black IP”), and You shall not take any action inconsistent with such title. The Services are protected by United States and other applicable laws and by international treaty provisions. Any rights not expressly granted herein are reserved to Carbon Black and Carbon Black’s licensors.
OTHER RESTRICTIONS: You may not cause or permit other to:
- disclose, copy, rent, license, sublicense, lease, disseminate or otherwise distribute the Services by any means or in any form, without the prior written consent of Carbon Black;
- use the Services to conduct a service bureau or similar business for the benefit of third parties;
- modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Services, including the Software, to human readable form;
- access or use the Software and Services in order to build or support, and/or assist a third party in building or supporting software or services competitive to Carbon Black;
- perform or disclose any of the following security testing of the Services environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing or penetration testing.
Carbon Black may make changes or updates to the Services, including but not limited to infrastructure, security, technical configurations, application features, during the term, to reflect changes in technology, industry practices, patterns of system use, and availability of third party content.
USE OF THE SERVICES: You are responsible for identifying and authenticating all employees, contractors, and end users, as applicable (collectively, “Users”) that You authorize to use the Services in accordance with this Agreement and your Order, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. Carbon Black is not responsible for any harm caused by Users, including individuals who were not authorized to have access to the Services, but who were able to gain access because usernames, passwords and accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords and accounts or as a result of Your or Your Users’ access to the Services, and agree to notify Carbon Black immediately of any unauthorized use. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
You are required to accept all patches, bug fixes, updates, maintenance and service packs necessary for the proper function and security of the Services as are generally released by Carbon Black. Carbon Black is not responsible for performance or security issues encountered with the Services that result from Your failure to accept the application of such patches that are necessary for the proper function and security of the Services.
LIMITED WARRANTY, DISCLAIMERS AND EXCLUSIVE REMEDIES: Carbon Black warrants that the Services will conform in all material respects to the documentation for the applicable Services offering. This limited warranty: (i) does not apply in the event of any alteration of the Services or any use of the Services other than as permitted hereby or in accordance with its published documentation; and (ii) does not apply to any information or data, including but not limited to, threat intelligence data originating from third parties and enabled through the Services or by links provided by Carbon Black, which are licensed from and owned by third parties, the distribution or use of which may be subject to additional or different terms set forth in the applicable terms of service, policies, rules or licenses, and all of which are provided on an “AS-IS” basis only and Carbon Black hereby disclaims any liability with respect to its accuracy, completeness and/or use.
NOTWITHSTANDING THE FOREGOING, EVALUATION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.
EXCEPT AS EXPLICITLY STATED ABOVE, CARBON BLACK AND CARBON BLACK’S LICENSORS, RESELLERS AND/OR DISTRIBUTORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT ERROR FREE OPERATION OR NON-INTRUSION DUE TO HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS. FURTHER CARBON BLACK DOES NOT GUARANTY THAT, (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED OR THAT CARBON BLACK WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATION, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY CARBON BLACK, (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT CARBON BLACK DOES NOT CONTROL THE TRANSFER OF DATA OVER THE COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACIILTIES AND CARBON BLACK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CARBON BLACK IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF ANY SERVICES PROVIDED BY CARBON BLACK, OR ANY INFORMATION, CONTENT, OR DATA CONTAINED THEREIN, 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. YOU ACKNOWLEDGE THAT IT IS IMPOSSIBLE UNDER ANY AVAILABLE TECHNOLOGY FOR ANY APPLICATION TO IDENTIFY AND ELIMINATE ALL MALWARE.
FOR ANY BREACH OF THE FOREGOING SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND CARBON BLACK’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY WITHIN A REASONABLE TIME AND WITHOUT CHARGE, OR, IF CARBON BLACK CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY TERMINATE THE DEFICIENT SERVICES AND CARBON BLACK WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO CARBON BLACK FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
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 LICENSE SERVICE, 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.
DATA COLLECTION AND USE: As part of the Services, Carbon Black will collect and use information about your binaries, devices, files, systems, software, and endpoints (“Technical Data”), to support your use of the Services. The Technical Data may also be used by Carbon Black and distributed (in aggregated and non-attributable form) to improve the operation and functionality of the Services, and for threat detection, threat intelligence, and related analysis. By accessing and using the Services, Customer agrees to the collection, use, distribution, transfer, back-up and storage of the Technical Data by Carbon Black and its service providers. Customer also agrees that Carbon Black and its service providers may, as part of Customer’s use of the Services, distribute, transfer, copy, backup and store your Technical Data in the United States, Europe, or other jurisdictions where data protection standards may be different. Carbon Black shall not be responsible for the deletion, correction, destruction, damage, or loss of any such data collected. Carbon Black reserves the right to establish or modify its general practices and limits relating to storage of such data, and/or to delete or destroy any or all such data periodically.
CONFIDENTIALITY: The Services and all information disclosed by Carbon Black to You hereunder or otherwise in connection with the Services, together with, for Evaluation Services, all results of Your evaluation (collectively “Confidential Information”), are confidential information of Carbon Black and shall not be disclosed by You to any third party. You shall only use the Confidential Information as expressly permitted by this Agreement, and in no other manner. You agree to take all necessary precautions to avoid disclosure and misuse of the Confidential Information. You shall promptly notify Carbon Black if You become aware of any breach of this confidentiality obligation and agrees to remedy any such breach.
TERM; TERMINATION: This Agreement is valid for the term specified on the applicable Order which this Agreement accompanies and may be terminated by either party for cause as expressly provided in this Agreement. The Agreement will terminate immediately without notice from Carbon Black if You fail to comply with any provision of this Agreement. Upon any such termination, access to the Services shall end and You shall pay to Carbon Black all sums as set forth in the Order then remaining unpaid. The provisions regarding Confidentiality, Limitation of Liability and Evaluation Software Indemnity shall survive termination of this Agreement indefinitely.
EVALUATION SOFTWARE INDEMNITY: You agree to 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 Services.
THIRD-PARTY INFRINGEMENT INDEMNIFICATION: Carbon Black shall (a) defend, indemnify and hold Customer and its officers, directors, employees and agents harmless from and against all claims and causes of action arising out of an allegation that the Services infringes a third party copyright, trademark or U.S., Canadian or European Union patent, and (b) pay the resulting cost and damages finally awarded against Customer by a court of competent jurisdiction or the amount stated in a written settlement signed by Carbon Black, as long as Customer gives Carbon Black (1) prompt written notice of such claim or action; (2) the right to control and direct the investigation, preparation, defense, and settlement of the action; and (3) reasonable assistance and information with respect to the claim or action. If a final injunction is obtained against Customer’s right to continue using the Software or, if in Carbon Black’s opinion the Services are likely to become the subject of a claim, then Carbon Black may, at its election, either (a) obtain the right for Customer to continue to use the Services; or (b) replace or modify the Services so that it no longer infringes but functions in a materially equivalent manner. If Carbon Black determines that neither of these alternatives is reasonably available, then Carbon Black may terminate this Agreement and refund any prepaid fees for such Services on a pro rata basis. This section shall not apply to infringement or misappropriation claims arising in whole or in part from (1) designs, specifications or modifications originated or requested by Customer; (2) the combination of the Services or any part thereof with other equipment, software or products not supplied by Carbon Black if such infringement or misappropriation would not have occurred but for such combination; or (3) Customer’s failure to install a maintenance update, where same would have avoided such claim. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CARBON BLACK’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.
EXPORT: Export laws of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern Your use of the Services and any Services deliverables provided under this Agreement and You agree to comply with all such export laws and regulations. You agree that no data, information, software programs and/or materials resulting from the Services will be exported, directly or indirectly, in violation of these laws, or will be used for any purposes prohibited by these laws and You agree to indemnify and hold Carbon Black harmless from and against claims, losses, costs, or liability, arising in connection with Your breach of this Section.
GOVERNMENT RESTRICTED RIGHTS: The Software and documentation are “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 Software or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
GOVERNING LAW: This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, U.S.A., excluding (a) its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980; and (e) the Uniform Computer Information Transactions Act (UCITA) as adopted by any state. You hereby submit to the exclusive jurisdiction of the federal and state courts located in Boston or Suffolk County, Massachusetts in connection with any dispute arising out of or relating to this Agreement and waive any objection to such venue.
FORCE MAJEURE: 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 and such additional period as may be reasonably necessary to allow that party to resume its performance.
GENERAL: This Agreement constitutes the entire understanding between Carbon Black and You with respect to subject matter hereof. Any change to this Agreement must be in writing, signed by Carbon Black and You. Terms and conditions as set forth in any Order which differ from, conflict with, or are not included in this Agreement shall not become part of this Agreement unless specifically accepted by Carbon Black in writing. You shall be responsible for and shall pay, and shall reimburse Carbon Black on request if Carbon Black is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Carbon Black’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Services. Notwithstanding anything to the contrary in this Cb Defense Agreement, if You are purchasing Cb Defense for VMware, You will be provided with a separate Agreement specific to the use of Cb Defense for VMware that will apply and supersede any contradictory terms in this Cb Defense Agreement.
Cb ThreatSight Terms:
In the event you are purchasing Cb ThreatSight (the “ThreatSight Services”) the following additional provisions shall apply:
RIGHTS GRANTED: Carbon Black hereby grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, worldwide right to access and use the ThreatSight Services only for Your own internal business operations. You may only use ThreatSight Services to support the number of endpoints specified in an order, quote or invoice that has been accepted by You (the “Order”).
OWNERSHIP; COPYRIGHT: As between the parties, Carbon Black reserves all right, title and interest in and to the ThreatSight Services (and any and all modifications to or derivative works of the underlying Carbon Black software) and any and all Intellectual Property Rights embodied in such underlying software and ThreatSight Services.
USE OF THE THREATSIGHT SERVICES: The ThreatSight Services are designed to provide additional information regarding potential threats to Your endpoints. You are responsible for determining whether or how best to respond to any real or potential threats detected by the ThreatSight Services. You hereby acknowledge that the performance of the ThreatSight Services is dependent on factors including Your configuration of the Cb Defense Service, Your specific operating environment, and other factors beyond the control of Carbon Black. Nothing in this Agreement modifies the terms of the agreement governing the use and provision of the Cb Defense service.
LIMITED WARRANTY, DISCLAIMERS AND EXCLUSIVE REMEDIES: Carbon Black warrants that the ThreatSight Services will performed materially in accordance with the Service Description. Customer will provide to Carbon Black prompt written notice of any non-conformity with the above warranty, and provide Carbon Black a reasonable opportunity, not to exceed thirty (30) days, to remedy such non-conformity. This limited warranty: (i) is void in the event of any alteration of the ThreatSight Services or any use of the ThreatSight Services other than as permitted hereby or in accordance with its published documentation; and (ii) does not apply to any information or data, including without limitation, threat intelligence data originating from third parties and enabled through the ThreatSight Services or links provided by Carbon Black, all of which are provided “AS-IS”, and Carbon Black hereby disclaims any liability with respect to the accuracy, completeness and/or use of such information or data. For any breach of the foregoing service warranty, Your exclusive remedy and Carbon Black’s entire liability shall be to terminate the ThreatSight Service and in such event Carbon Black will refund to you the prepaid unused fees for the terminated ThreatSight Service following the effective date of termination.
NOTWITHSTANDING THE FOREGOING, EVALUATION SERVICES, IF APPLICABLE, ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.
EXCEPT AS EXPLICITLY STATED ABOVE, CARBON BLACK AND CARBON BLACK’S LICENSORS, RESELLERS AND/OR DISTRIBUTORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE THREATSIGHT SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ERROR FREE OPERATION OR PERFORMANCE, OR NON-INTRUSION DUE TO HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS. FURTHER CARBON BLACK DOES NOT WARRANT OR REPRESENT THAT, (A) THE THREATSIGHT SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED OR THAT CARBON BLACK WILL CORRECT ALL THREATSIGHT SERVICES ERRORS, (B) THE THREATSIGHT SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATION, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY CARBON BLACK, (C) THE THREATSIGHT SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT CARBON BLACK DOES NOT CONTROL THE TRANSFER OF DATA OVER THE COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE THREATSIGHT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACIILTIES AND CARBON BLACK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CARBON BLACK IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE THREATSIGHT SERVICES THAT ARISE FROM YOUR CONTENT, YOUR OPERATING ENVIRONMENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF ANY SERVICES PROVIDED BY CARBON BLACK, OR ANY INFORMATION, CONTENT, OR DATA CONTAINED THEREIN, WHETHER MADE BY CARBON BLACK EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY OR REPRESENTATION BY CARBON BLACK FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF CARBON BLACK WHATSOEVER.