CARBON BLACK THREAT
INTEL LICENSE AGREEMENT
This is a License Agreement (the
"Agreement") for Carbon Black Threat Intel (as further defined below)
owned by Carbon Black, Inc. (“Carbon Black”). Please read this Agreement. By
enabling Your users to access and utilize Cb Threat Intel, 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 Threat Intel for any purpose. If
the Licensed Service have 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 Threat Intel 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.
“Licensed Service” means
Cb Threat
Intel
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 Threat Intel.The information delivered to You by
Cb Threat
Intel
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.
“Order” means an order by You for a subscription license to Cb Threat Intel.
“Carbon Black Threat Intel”
means the cloud-based
software identification and information service provided by Carbon Black
through Carbon Black Enterprise Protection software and/or Carbon Black Enterprise
Response software.
Cb Threat Intel
includes, without
limitation, the Software Reputation Service (SRS) infrastructure and services,
the Alliance Server infrastructure and services, other Carbon Black cloud-based
infrastructure and services, and any data provided by these infrastructures and
services.
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 Licensed Service 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.
License; Restrictions
.
In consideration of Your payment to Carbon Black of the Fees, You are granted
(for the Term specified in the Order), for Your internal use only, a non‑exclusive,
non-transferable license, without right to sublicense, to access and use (in
accordance with the Documentation) the Cb Threat Intel services for the Cb
Enterprise Protection and/or Cb Enterprise Response software in connection with
Your licensed use of the Cb Enterprise Protection and/or Cb Enterprise Response
software only, for the number of licensed seats specified in the Order. The Licensed
Service under this Agreement is licensed and not sold and shall remain, the sole
and exclusive property of Carbon Black. Carbon Black reserves all other rights
to the Licensed Service and all intellectual property relating thereto not
specifically licensed 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 Licensed Service, nor may you use Cb
Threat Intel 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 that may be downloaded by You
or provided to You by Carbon Black in connection with Your use of Cb Threat
Intel, including, without limitation, (i) Cb Enterprise Protection; (ii) Cb
Enterprise Response, and (iii) any patch, update, upgrade, modification or
other enhancement provided by Carbon Black with respect to such software, is
licensed subject to the terms and conditions of the applicable end user license
agreement for such software (the “License Agreement”). Your Cb Enterprise
Protection and/or Cb Enterprise Response license serves as Your Registration to
the extent it so indicates.
If the Licensed Service have 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 Threat Intel 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 Threat Intel
will conform in all material respects to the applicable
specifications. If
Cb Threat Intel
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 Threat Intel
so it will comply with the applicable warranty, or (b) refund the
Fee for
Cb Threat Intel
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 Threat Intel
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
Threat Intel 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 THREAT INTEL
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 THREAT INTEL, 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 LICENSE SERVICE, REGARDLESS OF
THE FORM OF ACTION, SHALL IN NO CIRCUMSTANCE EXCEED THE FEES PAID TO CARBON
BLACK FOR THE LICENSED SERVICE GIVING RISE TO THE LIABILITY, OR, FOR EVALUATION
SERVICE, $100.00.
7.Term and Termination.
The
license for
Cb Threat Intel
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.
8.
Confidentiality;
Privacy
. As used in this Agreement,
"Confidential Information" means all information of either party that
is not generally known to the public, whether of a technical, business or other
nature (including, without limitation, trade secrets, know-how and information
relating to the technology, strategic partners, customers, business plans,
promotional and marketing activities, finances and other business affairs of
such party), that is disclosed by one party to the other party or that is
otherwise learned by the receiving party in the course of its discussions or
business dealings with the disclosing party. Confidential Information of
Carbon Black also includes the terms, conditions and pricing of this Agreement.
The obligations of either party herein shall not extend to (i) any information
that recipient can demonstrate through written documentation was already known
to the recipient prior to its disclosure to the recipient, (ii) was or becomes
known or generally available to the public (other than by act of the
recipient), (iii) is disclosed or made available in writing to the recipient by
a third party having a bona fide right to do so, (iv) is independently
developed by recipient without the use of any Confidential Information, or (v) is
required to be disclosed by process of law, provided that the recipient shall
notify the disclosing party promptly upon any request or demand for such
disclosure.
Further, in order to identify and provide
information about software and other threat intelligence indicators,
Cb
Threat Intel
may collect certain information which may
include, but is not limited to, executable file information, including file
name and file path, status information regarding computers at different
security levels and connection status, Cb Enterprise Protection and/or Cb
Enterprise Response server configuration information, and computer
configuration and behavioural information during Your use of
Cb Threat
Intel.
The types and amount of
information
Cb Threat Intel
collects can be configured
based on customer requirements during the installation process and can be
updated after installation. Carbon Black may use information collected by
Cb
Threat Intel to improve Cb Threat Intel
services, data, infrastructure, Cb Enterprise Protection and/or Cb
Enterprise Response. No personally identifiable information or personal health
information is intentionally collected by
Cb Threat Intel at any time.
Carbon
Black takes its privacy obligations seriously. Carbon Black takes comprehensive
measures to safeguard Your information from unauthorized access, in accordance
with Carbon Black’s privacy policy (found at
www.carbonblack.com/license-agreements/privacy-policy/
) (the “Privacy Policy”). You hereby consent to the processing of Your
information in accordance with the Privacy Policy.
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.
10. Miscellaneous.
(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.