IMPORTANT - READ CAREFULLY: This Black Duck Software, Inc. (“Black Duck”) End User License (“Agreement”) is a legal contract by and between you, either an individual or a single business entity, hereinafter referred to as (“Customer”) and Black Duck, and is made as of the date that you acknowledge and accept these terms (the “Effective Date”).
By installing or using the Program (as defined below), you acknowledge that you have read this Agreement, that you understand it, and that you agree to be bound by its terms. If you do not agree to this Agreement, promptly exit this page without installing or using the Program.
1. DEFINITIONS.
1.1. “Application” means the software code associated with a single software build, including multiple versions thereof.
1.2. “Code Contributor” means the individuals within or contracted by the Customer’s organization who contribute or work with code for an Application that will be scanned or analyzed by the Program. The number of Code Contributors includes all developers, engineers, analysts, architects, testers and managers who have written, modified or reviewed code for any scanned or analyzed Application during the Subscription Period, as well as any individuals who interact with the Program via UI, email/text alerts, API, or third party integration. Code Contributors do not include, however, those individuals within the Customer’s organization who perform only software related documentation or project management tasks.
1.3. “Confidential Information” is defined in Section 6.2 (Definition).
1.4. “Documentation” means the materials and help text for a Program made available to Customer and updated from time to time, electronically or otherwise.
1.5. “Knowledgebase” means the database of open source software projects, components and metadata developed, maintained and curated by Black Duck and included as part of the Program.
1.6. “Managed Code Base” means a code base controlled by Customer that is input into and scanned by the Program and managed using that Program over the course of the applicable Subscription Period. As further described in the applicable Order Form, the size of the Managed Code Base equals either (a) the aggregate amount of code added to the Managed Code Base, whether or not any of that code is eventually deleted by Customer or (b) the aggregate number of Application(s).
1.7. “Order Form” means a form, in the format furnished by Black Duck, indicating Customer’s desire to license a Program or acquire Services, pursuant to the terms of this Agreement.
1.8. “Program” means a machine-readable version of a computer software product described in an Order Form including, but not limited to, the Knowledgebase, and any and all Documentation, report formats and Updates provided to Customer by Black Duck. “Program” does not include functionality that may be delivered to Customer but to which access is restricted by the issuance of license keys or other access control device (e.g. if Customer orders a limited version of a Program). “Program” does not include any application programming interfaces unless specifically included in an Order Form.
1.9. “Services” means installation, training and other services provided by Black Duck to Customer, as further described in the applicable Order Form, but expressly excluding Support.
1.10. “Subscription Fees” means the fees to be paid by Customer in connection with the license of a Program for the duration of the defined Subscription Period, as further described in the applicable Order Form.
1.11. “Subscription Period” means the period as further described in the applicable Order Form, during which Customer is entitled to use the applicable Program.
1.12. “Support” means the support provided by Black Duck with each Program as described in Section 2.5 (Customer Support).
1.13. “Update(s)” means corrections, fixes and other updates to a Program, as well as any new version or release of a Program, if and when made generally available by Black Duck to its active subscription customers.
1.14. “Usage Data” means data to be provided (either directly or through the operation of a Program) to evidence Program operation and to evidence compliance with the terms and conditions of this Agreement. “Usage Data” includes the Program version in use, the number of Code Contributors, the number of Applications, the Managed Code Base size and, where available, the operating system name and version of the host server. “Usage Data” does not include any personally identifiable information.
2. PROGRAM ORDERS AND LICENSE GRANT.
2.1. Ordering. Each order of a Program or Service will be set forth in a mutually-agreed Order Form, which will be binding on both parties upon execution by authorized representatives of the parties. Each Order Form will be governed by this Agreement, and upon execution by both parties, will automatically become a part of this Agreement. Additional or different terms in any purchase order or similar document provided by Customer will not modify or add to the terms of this Agreement or any Order Form.
2.2. Deliverables. Black Duck will deliver each requested Program and Services upon the terms set forth in this Agreement and the applicable Order Form. On a periodic basis, Black Duck will deliver Updates to each licensed Program.
2.3. License. Subject to the terms and conditions of this Agreement and the applicable Order Form, Black Duck hereby grants to Customer the following nonexclusive, nontransferable license, during the applicable Subscription Period:
(a) to install the Program on the number of servers and at the locations designated in the applicable Order Form; and
(b) For the number of Applications or Code Contributors designated in the applicable Order Form to use the Program internally, solely in accordance with its Documentation and in connection with a Managed Code Base of a size no greater than the megabyte limit set forth in the applicable Order Form.
2.4. License Restrictions. This is not a perpetual license, and Customer has no right to retain or to use the Program or the Knowledgebase after termination of the applicable Subscription Period for any reason. Customer may not permit access or use of the Programs for any users other than Code Contributors, Customer users or those persons using the Program exclusively for the benefit of Customer. Customer may make a reasonable number of copies of the Program exclusively for inactive back-up, disaster recovery, failover or archival purposes. Customer has no right to rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the Program available to any third party. Unless otherwise expressly stated in this Agreement or the applicable Order Form, the Program or the Knowledgebase may not be used (a) in the performance of services for or on behalf of any third party or as a service bureau or (b) in connection with the analysis of any code other than the Managed Code Base. Except to the extent Black Duck may, in certain jurisdictions, be required by law to permit reverse engineering, Customer may not modify, disassemble, decompile or otherwise reverse engineer the Program or the Knowledgebase nor permit any third party to do so. Black Duck reserves all rights not expressly granted to Customer under this Agreement. The use of Black Duck’s intellectual property beyond the scope of the license expressly granted is acknowledged and agreed to be outside the subject matter of this Agreement. The Program or the Knowledgebase may contain open source components which shall be governed by the terms of such applicable open source licenses.
2.5. Customer Support. During the Subscription Period, Black Duck will provide Support to Customer pursuant to its standard support plan then in effect. Any other Services requested by Customer will be set forth in an Order Form executed by Black Duck and Customer. In no event will Black Duck be obligated to furnish Support for: (a) any version of a Program that Customer has modified or altered in any way, excluding the setting of parameters as permitted by the Program; or (b) any version of a Program other than the most recent version and one version back. With the exception of the Support and Services expressly provided for in this Agreement (including in an Order Form), this Agreement does not apply to other services that Black Duck may offer from time to time.
2.6. Equipment. Unless otherwise stated in the applicable Order Form, Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Program, including, without limitation, computers, computer operating system and web browser (collectively, "Equipment"). Customer shall ensure that Equipment complies with all configurations and specifications set forth in Black Duck's Documentation.
2.7. Renewal of Subscription. Except as otherwise specified in the applicable Order Form, each Subscription Period will automatically renew for successive 12 month periods at the then current list price for the Program. If Customer does not wish to renew the Subscription for an additional 12 months, Customer must notify Black Duck in writing at least 60 days before the end of the applicable Subscription Period.
3. FEES AND PAYMENT TERMS.
3.1. Fees and Payment Terms. Customer will pay the Subscription Fees, and any fees for Services, in US dollars (unless otherwise stated by Black Duck), as further described in each applicable Order Form. Fees are due within 30 days from the date of the invoice.
3.2. Expenses. If Customer orders Services under this Agreement to be performed at a location other than Black Duck’s offices, Customer will reimburse Black Duck for all reasonable travel-related expenses incurred by Black Duck including, without limitation, transportation, lodging, and meal expenses.
3.3. Usage Data and Other Information. Customer acknowledges that the Programs are designed to collect certain usage data, which may be used solely by Black Duck for customer support, verifying the need for and providing Updates to the Programs and, verifying Customer’s compliance with the terms and conditions of this Agreement. Upon Black Duck’s written request, Customer will provide Black Duck with usage data that cannot be collected automatically through the Programs. If Customer has used the Program outside the parameters set forth in the Applicable Order Form, Customer acknowledges that it may be required to pay additional fees to cover such additional use.
3.4. Taxes. The Fees paid under this Agreement are exclusive of all Taxes, as defined herein. Customer will pay all taxes or other charges levied in connection with the Program and Services, including import duties, sales, services, use and value-added taxes, and withholding taxes (collectively, “Taxes”) which are imposed by or under the authority of any government or any political subdivision thereof. All payments due from Customer shall be made without any deduction or withholding on account of any Taxes, charge or penalty, except required by law, in which case the sum payable by Customer from which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, Black Duck receives and retains (free from any liability with respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required.
3.5. Late Payment. If Customer fails to pay an invoice in a timely manner, Black Duck will give Customer written notice. If such notice has been provided and payment has not been made within 5 days of the receipt of the notice by Customer, then interest will accrue on all amounts payable from the original date due to the date paid, at the lesser of the rate of 12% per year or the highest rate allowed by applicable law. In addition, if, after receipt of the late payment notice, Customer does not pay the applicable invoice within 5 business days, Black Duck may deny access to all or any part of the applicable Program or Service.
4. PERFORMANCE WARRANTY.
4.1. Warranty. Subject to the terms and conditions of this Section 4 (Performance Warranty), Black Duck warrants that each Program will perform substantially as described in its Documentation for the duration of the Subscription Period, provided that it is used in accordance with the Documentation, including in the specified operating environment. This warranty is only for the benefit of Customer.
4.2. Exclusive Remedy. Customer’s sole and exclusive remedy for breach of the warranty in Section 4.1 will be as follows:
(a) For the period commencing on the 1st day of the Subscription Period and ending 30 days thereafter, if the Program does not operate substantially in conformity with the Documentation, Customer will notify Black Duck no later than 10 days after the expiration of the 30 day period. Black Duck will use reasonable commercial efforts to supply a correction or work-around within 15 days (“Warranty Cure Period”). If Black Duck is unable to correct or work around the nonconformity within such Warranty Cure Period, then Customer may elect to terminate the applicable Order Form and, subject to the provisions of Section 8.2 (Customer Obligations on Termination), Customer will be entitled to a full refund of the Subscription Fees paid for such Program. Customer must elect such termination in writing within 15 days of the end of the Warranty Cure Period.
(b) For the period commencing on the 31st day of the Subscription Period and ending on the last day of the Subscription Period, if the Program does not operate substantially in conformity with the Documentation, Customer will notify Black Duck and Black Duck will use reasonable commercial efforts to supply a correction or work-around in accordance with its Support policy as further described in Section 2.5 (Customer Support).
4.3. Disclaimer. Except as expressly provided herein, Black Duck makes no warranties with respect to the Program, Knowledgebase, Services, Support or any other product provided or service provided by Black Duck and hereby disclaims all other warranties, express, implied, or statutory, including warranties of merchantability, fitness for a particular purpose, title and non-infringement. No warranty is made that the Program will operate error-free or regarding the results to be achieved. No warranty is made that the Program, Services or Support will meet Customer’s requirements.
The Program, Services and Support are not intended to provide legal or security advice, and any license annotations or similar features are provided only for convenience. any License or security annotations are not intended to be comprehensive or applicable in all situations. Black Duck does not guarantee that the Program will identify all instances of open source or third party code, all potential license conflicts, or all security vulnerabilities. For legal advice, Customer should consult with its attorneys.
5. INTELLECTUAL PROPERTY INDEMNIFICATION.
5.1. Indemnification. At its sole expense, Black Duck will defend and indemnify Customer against any third party claim arising out of: (a) any personal injury or tangible property damage caused by Black Duck during the performance of the Services; or (b) any allegation that the Program infringes any copyright, trademark or misappropriates any trade secret of a third party. Black Duck will pay all damages awarded or agreed to in settlement of such claim.
5.2. Conditions. As conditions of Black Duck’s obligations under this Section 5, Customer must: (a) promptly notify Black Duck in writing of such claim and furnish a copy of each communication or notice relating to the alleged infringement; (b) give Black Duck sole control over the defense and negotiation of any settlement of such claim; and (c) give Black Duck, at Black Duck’s expense, all reasonable assistance as requested by Black Duck.
5.3. Exclusions. Black Duck’s obligations under this Section 5 do not apply to any Program to the extent that it (i) has been modified by persons or entities other than Black Duck, if the alleged infringement relates to such modification, (ii) has been combined with other products, processes or materials not supplied or recommended by Black Duck, where the alleged infringement relates to such combination, (iii) is the result of Black Duck’s compliance with Customer’s direction to modify the Program or Documentation, or (iv) continues to be used after Black Duck has made available to Customer a non-infringing release of the Program.
5.4. Other Terms. In the event of any claim brought or threatened against any party that would enjoin or otherwise limit the use of the Program, then Black Duck may, at its option: (a) obtain for Customer the right to continue to use the Program; or (b) replace or modify the Program so it becomes non-infringing. If the resolutions described in sub-sections (a) and (b) are not reasonably available to Black Duck, Black Duck may terminate the applicable Order Form and refund a prorated amount of the remaining Subscription Fees. This Section 5 states the entire liability of Black Duck with respect to any claim concerning infringement of intellectual property.
6. CONFIDENTIALITY.
6.1. Obligations. Each party agrees not to permit access to, nor to disclose or display, the other party’s Confidential Information other than to its authorized employees, contractors and advisors who are bound by confidentiality agreements that are similarly restrictive and who need to use or have access to the other party’s Confidential Information as permitted by this Agreement. Each party will use such Confidential Information solely in connection with the performance the activities described in this Agreement. Each party will use at least the same degree of care in protecting the other party’s Confidential Information as such party generally exercises in protecting its own similar proprietary information. Notwithstanding any provision to the contrary, either party may disclose the other party’s Confidential Information as required by a court order or other legal demand; provided that such party gives reasonable notice to the other party of such request to allow the other party to seek a protective order or similar legal protection. Each party agrees that, in the event of a threatened or actual unauthorized disclosure of Confidential Information, the disclosing party will be entitled to such equitable or injunctive relief as may be deemed proper by a court of competent jurisdiction.
6.2. Definition. “Confidential Information” includes documents, data, software and information which, when provided by one party to the other, are clearly identified as “Confidential” or “Proprietary”, or that a reasonable person would understand to be confidential or proprietary based on the content of the information and the circumstances of its disclosure. “Confidential information” does not include information which: (a) is already known to the receiving party at the time of disclosure; (b) is or subsequently becomes publicly available through no wrongful act of the receiving party; (c) is disclosed to or provided to the receiving party by a third party without restriction; or (d) is developed independently by the receiving party without use of or access to the disclosing party’s Confidential Information. Notwithstanding the requirements described in Section 6.1 (Obligations), Customer’s Confidential Information expressly includes the usage data and Black Duck’s Confidential Information expressly includes any Program. In addition, in no event will suggestions for new or enhanced functionality for Black Duck’s products or services be considered confidential or proprietary to Customer.
7. LIMITED LIABILITY. Except in the case of breach of the obligations set forth in Section 6 (Confidentiality) or distribution or use of a Program outside the scope of the license set forth herein, neither party will be liable to the other party for any indirect, incidental, special or consequential damages, including lost profits, loss of data or interruption of business, even if such party has been advised of the possibility of such loss. Except with respect to the indemnification obligations set forth in Section 5 (Intellectual Property Indemnification), in no event will Black Duck’s liability hereunder exceed the Subscription Fees paid by Customer for the twelve month Period immediately preceding the event that gave rise to the claim. Customer acknowledges that the provisions of this section represent a reasonable allocation of risk that is reflected in the amounts paid by Customer in each order form.
8. TERMINATION.
8.1. Termination.
(a) Term. The term of this Agreement will begin on the Effective Date and may be terminated as set forth in this Section 8.1. In any event, this Agreement will continue in full force and effect for the duration of any Subscription Period or period during which Services are provided.
(b) Termination for Program Discontinuation. Upon 6 months prior written notice, in the event Black Duck chooses to discontinue a particular Program, Black Duck may terminate this Agreement with respect to such Program; provided that, the effective date of such termination (i.e. the date 6 months from the Program discontinuation notice date) will not occur before the end of Customer’s then-current Subscription Period.
(c) Termination for Breach. In addition to any other termination rights provided in this Agreement, either party may terminate this Agreement immediately upon written notice if the other party materially breaches any provision of this Agreement and fails to cure such breach within 30 days after delivery of a written notice describing the breach provided, however, that termination by Black Duck arising out of Customer’s material breach shall not relieve Customer of paying any outstanding Subscription Fees.
(d) Access to Programs. Upon any termination of this Agreement, Black Duck is entitled to discontinue Customer’s access to any Programs in Customer’s possession or control, using the authentication mechanisms incorporated into each Program.
8.2. Customer Obligations upon Termination. Upon termination of this Agreement or any Order Form, Customer will: (a) cease use of the applicable Program and Knowledgebase; and (b) return to Black Duck or destroy all whole or partial copies of the applicable Program and Knowledgebase. Black Duck may request a certificate signed by an authorized representative of Customer confirming Customer’s compliance with the provisions of this Section 8.2.
8.3. Survival. The provisions of the following Sections will survive any termination of this Agreement: Section 2.4 (License Restrictions), Section 3 (Fees and Payments), Section 4.3 (Disclaimer), Section 5 (Intellectual Property Indemnification), Section 6 (Confidentiality), Section 7 (Limited Liability), Section 8 (Termination) and Section 9 (General).
9. GENERAL.
9.1. No Third Party Beneficiaries. There are no third party beneficiaries of this agreement. Customer will not expressly represent or imply to any third party that Black Duck has made any representation or warranty regarding the Program, Services, Support or any results thereof.
9.2. Trademarks/Publicity. Neither party will use the other party’s name or trademarks, or refer to the other party, either directly or indirectly in any advertisement, publication or presentation, or in any manner that might imply endorsement, verification or certification, except as mutually agreed in writing by the parties; provided, however, that Black Duck may include Customer on its list of customers and may display that customer list on its web site and in other publications.
9.3. U.S. Government Restricted Rights. The Program is commercial computer software and commercial documentation that have been developed solely with private funds, and is provided to any United States Government end user with RESTRICTED AND LIMITED RIGHTS. If the Program is being acquired by or on behalf of the United States Government or by a United States Government prime contractor or subcontractor (at any tier), then in accordance with DFARS 227.7201 through 227.7202-4 (for DOD acquisitions) and with FAR 12.212 and FAR 27.400 through 27.409 (for non-DOD acquisitions), the Government’s rights in the Program will be only as expressly set forth in this Agreement. The manufacturer is Black Duck Software, Inc., 800 District Ave., Burlington, MA 01803.
9.4. Remedies. Nothing in this Agreement waives or limits remedies or causes of action available to Black Duck to protect its intellectual property rights in the Programs. Customer acknowledges that the Programs contain certain trade secrets and proprietary information owned by Black Duck and its licensors and that, in the event of a threatened or actual unauthorized disclosure of such information, Black Duck will be entitled to such equitable or injunctive relief as may be deemed proper by a court of competent jurisdiction.
9.5. Waiver. If one party fails to enforce any provision of this Agreement, it will not be precluded from enforcing the same provision at another time.
9.6. Severability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be deemed modified the minimum extent necessary to render the provision enforceable in a manner that most closely represents the original intent of the parties. In such event, the remaining terms and conditions of this Agreement will remain in full force and effect.
9.7. Notices. All notices, requests and demands, and other communications required or permitted under this Agreement will be in writing and will be deemed effective only: (a) upon delivery; if delivered personally to a party; (b) 1 business day after deposit, if delivered to a nationally recognized courier service offering guaranteed overnight delivery; or (c) 3 business days after having been deposited in the United States mails, certified mail, postage prepaid, return receipt requested. All notices for the Customer will be sent to the addresses set forth in the Order Form and notices for Black Duck will be sent to 800 District Ave., Burlington, MA 01803 Attn: General Counsel. 9.8. Counterparts and Facsimile. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and which together will constitute one and the same instrument. The signature of any of the parties may be evidenced by a facsimile copy of this Agreement bearing such signature and such signature will be valid and binding as if an original executed copy of the Agreement had been delivered.
9.9. Force Majeure. Neither party will be responsible for delays or failures in performance resulting from acts beyond its control. Such acts include acts of God, labor conflicts, acts of war or civil disruption, governmental regulations imposed after the fact, public utility out failures, industry wide shortages of labor or material, or natural disasters.
9.10. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, United States of America without regard to its conflict of laws provisions. The parties consent to jurisdiction and venue of the state and federal courts of the Commonwealth of Massachusetts for any disputes hereunder. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act.
9.11. Export Compliance. Customer will not export or reexport any Program (in whole or in part) to any country outside the United States without first obtaining the required written approval or export license from the appropriate agency of the U.S. Government or any other government having jurisdiction over such export, reexport, or use, pursuant to any applicable statute, regulation, or governmental order. Customer represents that it will comply with U.S. Government export policy and regulations and undertakes to be and remain in full compliance with such policy and regulations.
9.12. Assignment. This Agreement and the rights granted under it may not be assigned or transferred by either party without the written consent of other party, except to a successor in interest in the event of a merger or acquisition of such party. If Customer assigns this Agreement as described in this Section, such assignee shall be limited by the usage restrictions set forth in the applicable Order Form or, absent such description, at such levels of use made by Customer prior to the assignment.
9.13. Auditing Rights and Required Records. Customer will maintain complete and accurate records during any Subscription Period and for a period of two (2) years thereafter with respect to Customer’s compliance with the Program usage limitations set forth herein and in any applicable Order Form. Black Duck will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit Customer’s records and use of the Products for purposes of determining Customer’s compliance. Customer agrees to cooperate with Black Duck in the performance of any such audit, and shall provide to Black Duck such access to relevant records, data, information, personnel and/or facilities as Black Duck may reasonably request for such limited purposes. If Black Duck’s inspection and audit reveals that the Customer has under reported or underpaid, Customer shall promptly pay such amounts as are necessary to rectify such under reporting or underpayment. If the amount of such under reporting or underpayment equals or exceeds five percent (5%) of the total amounts due and payable by Customer during such period, Customer shall reimburse Black Duck for the cost of such inspection and audit.
9.14. Attorneys’ Fees. In the event of any adjudication of any dispute under this Agreement, the prevailing party in such action will be entitled to reimbursement of its attorneys’ fees and related costs by the other party.
9.15. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties governing the provision of products and services by Black Duck to Customer. This Agreement supersedes all other agreements and communications, oral or written, with respect to its subject matter. It may be amended only by a written agreement between the parties.