This is a legal agreement between the end user (“You” or “Your”) and Carbon Black, Inc., a Delaware corporation (“Licensor” or “Carbon Black”). This Agreement is part of a package (the “Package”) that also includes, as applicable, executable files that You may download or a CD-ROM or other tangible media, in either case containing CB Protection software application in object code form only (both referred to herein as the “Software”) and certain written materials (the “Documentation”). Any patch, update, upgrade, modification or other enhancement provided by Licensor with respect to the Software or the Documentation shall be included within the meanings of those terms, for the purposes of this Agreement, except to the extent expressly provided below. If the Software has been provided to You for evaluation purposes (“Evaluation Software”), the terms and conditions set forth below shall apply unless specific alternative terms are expressly set forth for the Evaluation Software.
If the Package is provided in the form of a CD-ROM or other tangible media, such media may contain software applications other than the Software. This Agreement shall not govern the licensing of such separate software applications if such separate software applications are provided under separate license agreements.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE:
1) YOU (EITHER YOU AS AN INDIVIDUAL OR, IF THE SOFTWARE WILL BE USED BY AN ENTITY, ON BEHALF OF THAT ENTITY) REPRESENT AND AGREE THAT YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF OR, IF APPLICABLE, THE APPLICABLE ENTITY, TO THE TERMS OF THIS AGREEMENT, THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM; AND
2) YOU UNDERSTAND THAT, IF YOU PURCHASED THE PACKAGE FROM AN AUTHORIZED RESELLER OF CARBON BLACK, THAT RESELLER IS NOT CARBON BLACK’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON LICENSOR’S BEHALF OR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.
If You do not agree to the terms of this Agreement, promptly return the entire Package to the place You obtained it for a full refund. If You should have any difficulty in obtaining such refund, please contact Carbon Black at +1 (617) 393-7400.
LIMITED LICENSE: Carbon Black hereby grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable right and license to use the Software only for Your own internal business purposes. You may not sell or transfer reproductions of the Software or Documentation to third parties in any way. You may only use the functionality in the Software available in the type of license and for operating system and number of operating systems and/or endpoints specified in an order, quote or invoice from Licensor that has been accepted by You (the “Order”); Evaluation Software may be used solely for Your internal evaluation of the suitability of the Software and in no event for production use. You may not use the Software for any purposes not specifically permitted hereunder or 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.
CERTIFICATION AS TO USE: At Licensor’s request not more than once annually, You agree to certify to Licensor Your compliance with the license terms set forth in this Agreement and to allow Licensor or its designee to inspect Your data processing systems and records to verify such compliance, provided that any such inspections will be made on not less than ten (10) days written notice and during regular business hours and that all information obtained during such inspection shall be kept strictly confidential and used by Licensor solely to enforce Carbon Black’s rights under this Agreement. If the inspection reveals an underpayment to Licensor of license fees, You shall promptly pay to Licensor the deficit. Licensor shall bear the expense of such inspection unless the inspection reveals an underpayment of license fees in excess of five percent (5%), in which case You shall bear all reasonable costs associated with the inspection.
OWNERSHIP; COPYRIGHT: Title to the Software and the Documentation, and patents, copyrights and all other property rights applicable thereto, shall at all times remain solely and exclusively with Carbon Black and Carbon Black’s licensors, and You shall not take any action inconsistent with such title. The Software and the Documentation 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 the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software or the Documentation by any means or in any form, without the prior written consent of Licensor. You may not use the Software to conduct a service bureau or similar business for the benefit of third parties. You may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software to human readable form.
ULTRAHAZARDOUS ACTIVITIES: The Software is not designed, manufactured or intended for use in any environment in which the failure of the Software could lead to death, personal injury or severe physical or environmental damage, which uses and environments may include, but are not limited to, the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or weapons systems or the on-line control of equipment in any hazardous environment requiring fail-safe performance (“Ultrahazardous Activities”). You represent and warrant to Licensor that You will not install or use the Software for such purposes.
Carbon Black warrants that for a period of ninety (90) days after the delivery of the Software (“Software Warranty Period”), the Software will conform in all material respects to the applicable Documentation. This limited warranty: (i) applies to the initial licensee only and may be acted upon only by the initial licensee; (ii) does not apply in the event of any alteration of the Software or any use of the Software other than as permitted hereby or in accordance with its published specifications; and (iii) does not apply to (x) any patch, update, upgrade, modification, or other enhancement provided by Licensor with respect to the Software or the Documentation or (y) any information or data, including but not limited to, threat intelligence data originating from third parties and enabled through the Software or by links provided by Carbon Black, which are provided on an AS IS BASIS ONLY and Carbon Black hereby disclaims any liability with respect to accuracy, completeness and/or use.
NOTWITHSTANDING THE FOREGOING, EVALUATION SOFTWARE IS 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 THIS SOFTWARE, 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, 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, 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.
If You believe You have found any such error or defect in the Software during the Software Warranty Period, call Carbon Black’s Customer Service Department at +1 (617) 393-7487 or 877-248-9098 between the hours of 8:00 a.m. and 8:00 p.m. Monday through Friday (Eastern Time), holidays excluded, and provide Your Product number. Carbon Black’s and Carbon Black’s licensors’ entire liability and Your exclusive remedy for breach of this limited warranty shall be the repair or replacement of the Software with a corrected version of the Software, within a reasonable period of time and without charge.
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 PACKAGE, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO CIRCUMSTANCE EXCEED THE PURCHASE PRICE OF THE PACKAGE OR, FOR EVALUATION SOFTWARE, $100.00.
CONFIDENTIALITY: The Software and all information disclosed by Licensor to You hereunder or otherwise in connection with the Software, together with, for Evaluation Software, all results of Your evaluation (collectively “Confidential Information”), are confidential information of Licensor 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 Licensor if You become aware of any breach of this confidentiality obligation and agrees to remedy any such breach.
TERMINATION: This Agreement is effective until terminated. You may terminate the Agreement at any time if there is an uncured material breach of this Agreement by destroying all copies of the Software, and all media and documentation and by providing Licensor with written notice and confirmation. The Agreement will terminate immediately without notice from Licensor if You fail to comply with any provision of this Agreement. Upon any termination, You must destroy all copies of the Software and all media and Documentation and 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 Software.
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 Software 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 Software 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 Licensed Material; or (b) replace or modify the Software 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 (a) with respect to any perpetual licenses, refund any monies paid by Customer for the Software less depreciation for use, assuming straight line depreciation over a five-year useful life, or (b) with respect to any subscription licenses, refund any prepaid fees for such subscription 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 Software 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 AND IMPORT COMPLIANCE: In the event You export the Software from the country in which You first received it, You assume the responsibility for compliance with all applicable import, export and re-export regulations, as the case may be, including but not limited to, any regulations of the Office of Export Administration of the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. You acknowledge and agree the Software shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software, You represent and warrant that You are not located in, or are under the control of, or a national or resident of, an Embargoed Country or Designated National. You agree to comply strictly with all applicable laws and assume sole responsibility for obtaining licenses to import, export or re-export as may be required.
The Software may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Carbon Black makes no representation the Software is appropriate or available for use in locations outside the United States. If You use the Software from outside the United States, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion or use of the Software contrary to United States law is prohibited.
You represent and warrant to Carbon Black that You will not use the Software or any portion thereof in violation of applicable laws or regulations, 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 Suffolk County, Massachusetts in connection with any dispute arising out of or relating to this Agreement and waive any objection to such venue.
EQUITABLE RELIEF: You agree that, because of the proprietary nature of the Software, Carbon Black’s remedies at law for a breach by You of Your obligations under this Agreement will be inadequate and that Licensor shall, in the event of a breach or threatened breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to all other remedies provided under this Agreement or available at law.
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 Licensor 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 Licensor in writing. You shall be responsible for and shall pay, and shall reimburse Licensor on request if Licensor is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Licensor’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 Package.