v2024.2
IMPORTANT INFORMATION – READ CAREFULLY
UNLESS YOU HAVE OBTAINED PERMISSION TO ACCESS THE SUBSCRIPTION SERVICE UNDER A SEPARATE, DULY SIGNED SERVICES AGREEMENT OR AN EVALUATION AGREEMENT WITH BLACK DUCK OR AN AUTHORIZED DISTRIBUTOR, THE SUBSCRIPTION SERVICE AND RESULTS AND/OR ANY LICENSED PRODUCT LICENSES ARE PROVIDED UNDER THE FOLLOWING TERMS AND CONDITIONS AND ANY SUPPLEMENTAL TERMS REFERENCED BELOW AND YOUR RIGHT TO ACCESS THE SUBSCRIPTION SERVICE IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS.
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS AND YOU DO NOT HAVE A SEPARATE AGREEMENT AS REFERENCED ABOVE, YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICE OR USE AND/OR COPY THE RESULTS OR ANY LICENSED PRODUCT LICENSES AND YOU MUST DELETE ANY COPIES OF THE SUCH FROM YOUR SYSTEMS.
IF APPLICABLE DEPENDING ON THE SUBSCRIPTION SERVICE TYPE, ANY DATA YOU ENTER INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR YOU, DURING YOUR SUBSCRIPTION TERM MAY BE PERMANENTLY LOST UNLESS YOU RENEW YOUR SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES PRIOR TO THE END OF THE EXISTING SUBSCRIPTION TERM, OR EXPORT SUCH DATA BEFORE THE END OF SUCH PERIOD.
1. SCOPE AND KEY TERMS. The Subscription Service is the proprietary information of Black Duck or its suppliers who retain exclusive title to their intellectual property rights therein. Your rights to the Subscription Service, Results and the Licensed Product are limited to those expressly granted below and Black Duck reserves all rights not expressly granted in this Agreement. Nothing in this Agreement shall be deemed to confer any third party rights or benefits.
1.1 “Agreement” means terms and conditions set forth herein applicable to Your access to the Subscription Service and use of the Results and or the Licensed Product, if licensed hereunder.
1.2 “Authorized User” means a party’s, and its wholly-owned subsidiaries’ or affiliate’s employees or authorized contractors: (a) whose duties require access to or use of the Subscription Service, Results and/or Confidential Information for the benefit of that party; and (b) whose legal obligations to protect confidential and proprietary information require protection of the Subscription Service, Results and/or Confidential Information to at least the same extent as set out in this Purchasing Agreement. You shall not appoint any third party as an Authorized User that licensed all or any portions of the applications applicable to the Subscription Service.
1.3 “Content” means information obtained by Black Duck from its content licensors or publicly available sources and provided to You pursuant to the Subscription Service, as more fully described in the Documentation.
1.4 “Documentation” means the user documentation, in written, electronic or other format, which describes the Subscription Service and its operation and which Black Duck makes generally available to its users of the Subscription Service.
1.5 “Maintenance” means the updates or upgrades to the Subscription Service that are made generally available by Black Duck to its customers who subscribe to the Subscription Service as part of Subscription Maintenance Services.
1.6 “Subscription Maintenance Services” means the standard Maintenance and Support solely with respect to Your use of the Subscription Service provided by Black Duck to You as further described in Section 9 below.
1.7 “Purchasing Agreement” means a document or otherwise electronic means provided to You by Black Duck or its authorized representative, which references this Agreement and identifies the specific Subscription Services and Licensed Product (where applicable) and the respective rights being licensed hereunder, including the License Type, quantity, Subscription Term, and Your Data. A Purchasing Agreement also sets forth the fees and payment terms (if any) for the Subscription Services and Licensed Product licenses. You must refer to a copy of the applicable Purchasing Agreement to determine these conditions of the Agreement. If applicable, additional or different terms on Your purchase order shall not apply.
1.8 “Purchased Services” means Subscription Services that You or Your designee purchase under an order form provided to you by Black Duck, as distinguished from those provided pursuant to a free trial.
1.9 A “Service Issue” is an inquiry by You regarding the functionality or use of the Subscription Service as part of Subscription Maintenance Services.
1.10 “Subscription Services” means the services ordered by You under an Purchasing Agreement hereto or accepted by You on Black Duck’s web site (including the Free Trial site) and made available online by Black Duck including associated offline components, if any, as described in the Documentation.
1.11 “Licensed Product” means the specific products provided by Black Duck in conjunction with the Subscription Service identified in a Purchasing Agreement and all related Documentation for such Licensed Product provided to You by Black Duck.
1.12 “Support” means the e-mail and telephone technical services that Black Duck offers as part of Subscription Maintenance Services regarding the use and function of the Subscription Service.
1.13 “You” or “Your” means the person accepting this Agreement and authorized to access the Subscription Service and use the Results.
1.14 “Your Data” means electronic data and information, including any source or byte code and related information that you may submit to the Subscription Service, excluding Content, Black Duck Confidential Information and/or the Results.
2. USE OF SUBSCRIPTION SERVICE; LICENSE GRANT.
2.1 Use of Subscription Service. Upon Your acceptance of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will be entitled to use the Subscription Service and upload Your Data thereto for the Subscription Term solely for Customers personal and/or internal use relating to developing analyzing, building or testing Customers Data.
2.2 License Grant. Subject to Your compliance with the terms and conditions of this Agreement, Black Duck grants You a nonexclusive, non-transferable license, solely during the subscription term accepted by you when you registered for the Subscription Services at Black Duck’s applicable web site or as expressed in the applicable Purchasing Agreement hereto (“Subscription Term”), to (a) use and operate the Licensed Product provided to you in connection with the Subscription Service and use the results generated or produced, including the Documentation, from Your use of the Subscription Service on Your Data (“Results”), solely for Your personal and/or internal use relating to developing analyzing, building or testing Your Data, and (b) to copy the Results as reasonably necessary to exercise the license rights granted in subsection (a).
2.3 Free Trial. If You register on Black Duck’s website for a free trial, Black Duck will make the Subscription Service(s) available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Subscription Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Subscription Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Notwithstanding anything to the contrary herein, during the free trial the Subscription Services are provided “AS-IS” without any warranty, support, indemnity obligations and expressly disclaims all liability related to Your use of any such Free Trial.
2.4 Limited Subscription Service Offering. If You register on Black Duck’s website for a version of the Subscription Service offered to You by Black Duck free of charge, Black Duck will make the Subscription Service available to You, in a form and capacity described in more detail at the applicable Black Duck website, free of charge (“Limited Subscription Service”), for so long as Black Duck choses to offer the Limited Subscription Service. Additional Limited Subscription Service terms and conditions may appear on the Limited Subscription Service website. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Notwithstanding anything to the contrary herein, during the Limited Subscription Service period, the Subscription Services are provided “AS-IS” warranty, support, indemnity obligations and expressly disclaims all liability related to Your use of any such Limited Subscription Service. Any Limited Subscription Service offered by Black Duck is subject to change and termination by Black Duck, in its sole discretion, and Black Duck will use commercially reasonable efforts to provide notice regarding any such changes on the Limited Subscription Service’s website.
2.5 Conditions. Except as permitted elsewhere in the Agreement, the rights granted to You in Sections 2.1 through 2.4 above are conditional upon Your compliance with the following obligations:
2.5 Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Black Duck except (a) to provide the Subscription Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
2.6 Special Terms for Third Party Software. The Subscription Service may contain open source or community source software (“Open Source Software”) provided under separate license terms (the “Open Source License Terms”). The applicable Open Source License Terms are identified in a directory named “Licenses” provided with the access to the Subscription Service. Your use of the Open Source Software in conjunction with the Subscription Service in a manner consistent with the terms of this Agreement is permitted, however, You may have broader rights under the applicable Open Source License Terms and nothing in this Agreement is intended to impose further restrictions on Your use of the Open Source Software.
2.7 Feedback and Analytics. You may choose to, but are not required to, provide suggestions, data, feedback and other information to Black Duck, its subcontractors or authorized distributors regarding possible improvements in the operation, functionality access to or use of Black Duck’s Subscription Service and/or the Results. You hereby grant to Black Duck and its subcontractors and authorized distributors, without charge, the right to use, copy, modify and create derivative works of any such suggestions, data, feedback and information solely for the purpose of (i) improving the operation, functionality or use of its existing and future product and service offerings and commercializing such offerings. All data obtained from the License Manager shall be deemed Feedback.
3. FEES AND PAYMENT FOR PURCHASED SERVICES
3.1. Fees. You will pay all fees specified in Purchasing Agreements. Except as otherwise specified herein or in an Purchasing Agreement, (i) fees are based on Subscription Services and/or Licensed Product licenses purchased and not actual usage, (ii) payment obligations are non-cancelable and fees are non-refundable, and (iii) quantities cannot be decreased during the relevant Subscription Term.
3.2. Invoicing and Payment. You will provide Black Duck with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Black Duck. If You provide credit card information to Black Duck, You authorize Black Duck to charge such credit card for all Purchased Services listed in the Purchasing Agreement for the initial Subscription Term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Purchasing Agreement. If the Purchasing Agreement specifies that payment will be by a method other than a credit card, Black Duck will invoice You in advance and otherwise in accordance with the relevant Purchasing Agreement. Unless otherwise stated in the Purchasing Agreement, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Black Duck and notifying Black Duck of any changes to such information.
3.3. Overdue Charges. If any invoiced amount is not received by Black Duck by the due date, then without limiting Black Duck’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law.
3.4. Suspension of Subscription Service and Acceleration. If any amount owing by You under this or any other agreement for Black Duck’s Subscription Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Black Duck to charge to Your credit card), Black Duck may, without limiting Black Duck’ other rights and remedies, accelerate Black Duck’ unpaid fee obligations under such agreements, if any, so that all such obligations become immediately due and payable, and suspend the Subscription Services to You until such amounts are paid in full. Black Duck will give You at least 10 days’ prior notice that Your account is overdue before suspending Subscription Services to You.
3.5. Payment Disputes. Black Duck will not exercise its rights under Sections 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
3.6. Taxes. Black Duck’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Black Duck has the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.6, Black Duck will invoice You and You will pay that amount unless You provide Black Duck with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Black Duck is solely responsible for taxes assessable against Black Duck based on its income, property and employees.
3.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
4. CONFIDENTIALITY.
4.1. Confidential Information. “Confidential Information” means: (a) Black Duck’s Subscription Service; (c) Documentation, product and/or service road maps and development plans, and product and/or service pricing information; (d) any Results; (e) functionality of Black Duck’s system when accessing the Subscription Service; (f) Your Data and (g) any business, technical or training information that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (g) the specific terms set forth in this Agreement.
4.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or omission of the party receiving Confidential Information (“Receiving Party”); (b) is rightfully known by the Receiving Party prior to receiving such information from the other party (“Disclosing Party”) and without restriction as to use or disclosure; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information and without breach of this Agreement; or (d) is rightfully received by the Receiving Party from a third party without restriction on use or disclosure. The existence of this Agreement and the nature of the business relationship between the parties are not considered Confidential Information.
4.3. Use and Disclosure Restrictions. Receiving Party will not use the Disclosing Party’s Confidential Information except as necessary to exercise the rights granted under this Agreement or to evaluate opportunities to license additional Licensed Product or Subscription Services pursuant to this Agreement, and will not disclose such Confidential Information to any person except that Black Duck may provide access to its employees or its affiliates’ employees that have a need to know such information in conjunction with the provision of Subscription Services described hereunder. Without limiting the generality of the foregoing, You agree that you will not post the images of the Subscription Service, the Results or the Documentation on any network. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors that need to know in order to provide business advice to such party. In addition, and as applicable, each party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations; and (ii) on a confidential basis to present or future providers of venture capital and potential private investors in or acquirers of such party.
4.4. Right of Equitable Relief. The parties acknowledge that violations of the covenants and obligations of this Agreement may cause the non-breaching party irreparable injury for which an adequate remedy at law may not be available. Therefore, the non-breaching party shall be entitled to seek all remedies that may be available under equity, including immediate injunctive relief, in addition to whatever remedies may be available at law.
5. WARRANTY.
5.1. Mutual Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
5.2. You Warrant. You warrant that You have all the rights in Your Data necessary for You to access the Subscription Services and use the Results and the storage, use or transmission of Your Data doesn’t violate any third party’s intellectual property rights, any law or regulation, the terms of this Agreement or the TOU referenced below.
5.3. Black Duck Warrants. Black Duck warrants, for a period of forty five (45) days from earlier of the date that the Subscription Services or Licensed Product is first made available to You (“Warranty Period”) that (a) the media on which the Licensed Product is delivered will be free of defects in material and workmanship, (b) the Subscription Service or Licensed Product will substantially conform to the functional specifications set forth in the applicable Documentation, and (c) it has used commercially available virus-detection software to scan the Subscription Services and/or Licensed Product, and it has not knowingly introduced into the Subscription Services and/or Licensed Product any virus, Trojan horse, trap door, or other code that is intended to cause harm to the Your Data or other systems. Black Duck does not warrant that the Subscription Service, Licensed Product or the Results will meet Your requirements, that the Subscription Service or Licensed Product will operate in combinations with equipment, devices, software or systems provided by persons other than Black Duck, that the operation of the Subscription Service or Licensed Product will be error-free or uninterrupted, that the Subscription Service or Licensed Product will be made available to You for any guaranteed uptimes, or that the Subscription Service or Licensed Product will discover all errors and vulnerabilities that may reside in Your Data or any associated code bases.
5.4. Sole Remedy. If, during the Warranty Period Black Duck receives written notice from You of non-conformity of the Subscription Service or Licensed Product with the warranty set forth in Section 5.3, Black Duck will, as Your sole and exclusive remedy and Black Duck’s entire liability for such non-conformity: (a) deliver a correction or workaround for the non-conformity; or (b) if Black Duck is unable to deliver such a correction or workaround, provide written notice to You and, upon Your return or confirmed destruction of all copies of the non-conforming Licensed Product and confirmation that You have terminated Your use of the Subscription Service to Black Duck, refund the fees You paid to Black Duck for such non-conforming Subscription Service or Licensed Product, if any. THE FOREGOING STATES YOUR SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO THE SUBSCRIPTION SERVICE OR LICENSED PRODUCT.
5.5. Disclaimer. EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
6. LIMITATION OF LIABILITY.
6.1. Exclusion of Damages. Notwithstanding anything to the contrary, this Agreement does not limit liability due to death or personal injury caused by gross negligence, or liability due to fraudulent misrepresentations or willful conduct, or liability arising from breaches of confidentiality obligations or service access and/or license grants or conditions hereunder. SUBJECT TO THE FOREGOING SENTENCE, IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR the cost of procuring substitute products OR SUBSCRIPTION SERVICES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You may have other rights under applicable mandatory local laws. This Agreement does not change Your rights under applicable mandatory local laws if such laws do not permit it to do so.
6.2. Cap on Liability. Except as set forth in the first sentence of Section 6.1 above, neither party’s cumulative liability to the other for all claims of any kind resulting from performance or breach of this Agreement or the Subscription Service or Results furnished hereunder shall exceed $10,000. Black Duck would not be able to provide the Subscription Service or the Results without the limitations set forth in Sections 6.1 and 6.2 herein.
7. INTELLECTUAL PROPERTY INDEMNIFICATION
7.1. Black Duck will defend or settle any action brought against You by paying all costs, damages and reasonable attorneys’ fees that are finally awarded against You to the extent those amounts are based upon a third party claim that the Subscription Services or Licensed Product, as provided by Black Duck to You under this Agreement and used in accordance with this Agreement, directly infringes any U.S. patent or any U.S. copyright or misappropriates any U.S. trade secret. However, Black Duck’s obligations under this section are subject to the following conditions: (a) You must promptly notify Black Duck in writing of the action; (b) You grants Black Duck sole control of the defense and settlement of the action; and (c) You must provide Black Duck, at Black Duck’s expense, with all assistance, information and authority reasonably requested for the defense and settlement of the action. Black Duck will not be responsible for any compromise made or expense incurred without its consent. If use of any of the Subscription Services or Licensed Product is, or in Black Duck’s reasonable opinion is likely to be, the subject of an action specified in this Section 7.1, Black Duck may, at its sole option and at no additional charge: (i) procure for You the right to continue using such Subscription Services or Licensed Product; (ii) replace or modify such Subscription Services or Licensed Product so that it is non-infringing and substantially equivalent in function to the original Subscription Services or Licensed Product; or (iii) if options (i) and (ii) above are not accomplished despite Black Duck’s reasonable efforts, terminate Your rights and Black Duck’s obligations hereunder with respect to such Subscription Services or Licensed Product and refund the unamortized portion of the fees paid, if any, for such Subscription Services or Licensed Product, based upon a straight-line depreciation over the term of the license commencing as of the date You received such Subscription Services or Licensed Product. Notwithstanding the terms of this Section 7.1, Black Duck will have no liability for any infringement or misappropriation action or claim of any kind to the extent that it results from: (a) modifications to the Subscription Services or Licensed Product made by a party other than Black Duck, if the infringement or misappropriation would not have occurred but for such modifications; (b) the combination, operation or use of the Subscription Services or Licensed Product with equipment, devices, Licensed Product, systems or data not supplied by Black Duck, if the infringement or misappropriation would not have occurred but for such combination, operation or use; (c) Your failure to use updated or modified Subscription Services or Licensed Product provided by Black Duck to avoid infringement or misappropriation; (d) Your compliance with any designs or specifications provided by You; (e) Your use of the Subscription Services or Licensed Product other than as authorized by this Agreement.
7.2. THE PROVISIONS OF THIS SECTION 7 SET FORTH BOTH PARTIES’ SOLE AND EXCLUSIVE OBLIGATIONS AND REMEDIES WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS AND/OR INDEMNITY RIGHTS OR OBLIGATIONS OF ANY KIND. EXCEPT AS SET FORTH ABOVE, BOTH PARTIES DISCLAIM ALL IMPLIED OBLIGATIONS WITH RESPECT TO INDEMNIFICATION.
8. EXPIRATION AND TERMINATION.
8.1. Termination for Breach. Either party will have the right to terminate this Agreement or any rights to access the Subscription Service or use the Results granted hereunder if the other party breaches any material term of the Agreement, and if such breach is capable of cure, the breaching party fails to cure such breach within thirty (30) days after receiving written notice thereof. Either party will have the right to terminate this Agreement if the other becomes insolvent or makes an assignment for the benefit of creditors, or a trustee or receiver is appointed for such other party or for a substantial part of its assets, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against such other party. Termination of this Agreement under this section terminates all rights granted to You to access the Subscription Service or use the Results.
8.2. Effect of Termination or Expiration. Upon termination or expiration of this Agreement or the Subscription Term, all rights to use the Subscription Service, Licensed Product, Confidential Information and Results that are granted thereunder shall terminate. Upon termination of this Agreement or expiration of the Subscription Term, You will promptly return to Black Duck or destroy the applicable Confidential Information and all copies and portions thereof, in all forms and types of media, including any Results.
8.3. Survival. Sections 1, 2.4, 3, 4, 5.4, 5.6, 6, 8.2, 8.3 and 10, will survive the termination or expiration of this Agreement.
9. SUBSCRIPTION MAINTENANCE SERVICES. Subject to Your payment of applicable fees, Black Duck will provide the following standard Subscription Maintenance Services to You for the Subscription Term:
a. Maintenance and Support. Black Duck will provide Maintenance and Support and respond to Subscription Service Issues as further described below. You agree that Black Duck’s Support obligations concerning the Subscription Service’s use with third party products, including compilers, operating systems and other Licensed Product or services, shall be limited to those items set forth in the Documentation. Service Issues are assigned a classification at the time of Your initial contact with Black Duck and are classified according to the severity levels set forth below. Black Duck will initially respond in accordance with the response times applicable to Service Issues reported by telephone or e-mail during Black Duck’s regular service hours for the applicable region as set forth below. Failure to contact You within the response time period because You are unavailable (e.g., phone busy, no answer, in a meeting, or out of the office) does not constitute Black Duck’s noncompliance with the response commitment. You shall cooperate with Black Duck to provide reproducible results for any errors reported. Black Duck’s ability to provide Support will depend, in some cases, on Your ability to provide accurate and detailed information and to aid Black Duck in handling a Service Issue. You shall provide Black Duck with reasonable access to Your systems, premises and staff as needed to provide Support.
Service Issue Classification |
Response Time |
Next Steps |
Severity P1—Critical Business Impact: Subscription Service is not functioning or is stopped or severely impacted so that You cannot reasonably continue use of Subscription Service and no workaround is available. |
One business day |
Once the Subscription Service Issue is verified, Black Duck will engage development staff during Black Duck’s business hours (but in no event later than 12 hours after the Subscription Service Issue is verified) until a workaround is achieved. |
Severity P2—Major Business Impact: Subscription Service is functioning inconsistently causing significantly impaired Your usage and productivity, such as periodic work stoppages and feature crashes. |
One business day
|
Once the Subscription Service Issue is verified, Black Duck will engage development staff during Black Duck’s business hours (but in no event later than 24 hours after the Subscription Service Issue is verified) until a workaround is achieved. |
Severity P3—Minor Business Impact: Subscription Service is functioning inconsistently causing slightly impaired Your usage and productivity but You can work around such inconsistency or impairment. |
Two business days |
Once the Service Issue is verified, Black Duck will consider a workaround, if appropriate in Black Duck’s sole discretion, and Subscription Service enhancements for such Service Issue for inclusion in a subsequent update to the Subscription Service. |
Severity P4—No Business Impact: Subscription Service is functioning consistently but You request minor changes in Subscription Service such as Documentation updates, cosmetic defects or enhancements. |
Three business days |
Once contact has been made with You, Black Duck will consider Subscription Service enhancements for inclusion in a subsequent update to the Subscription Service. |
b. On-Site Support. You may elect to purchase specific on-site support packages, details of which can be found on Black Duck’s website. The purpose of on-site support is to help customers optimize deployment of the Subscription Service, including installation, setup, configuration, and additional support offerings.
c. Exclusions to Subscription Maintenance Services. Subscription Maintenance Services do not include the right to access new or bundled product or Subscription Service offerings made available by Black Duck, unless licenses for such offerings are separately purchased. Black Duck will not have any obligation to provide Subscription Maintenance Services for problems in the operation or performance of the Subscription Service to the extent caused by any of the following: (a) modifications to the Subscription Service made by a party other than Black Duck; (b) Your use of the Subscription Service other than as authorized by the applicable agreement licensing access to the Subscription Service or Results therefrom to You or as provided in the Documentation; or (c) Your use of scripts or other deliverables provided to You under On-Site Support services (as described in Section 9, subsection b above). If, in its sole discretion, Black Duck determines that a problem in the operation or performance of the Subscription Service is caused by the foregoing, then Black Duck will notify You and have no further Subscription Maintenance Service obligations related to such problem. If You request and Black Duck agrees to perform services beyond standard Subscription Maintenance Services, Black Duck will have the right to invoice You at Black Duck’s then-current published time and materials rates for the provision of such services.
d. Hours of Service and Contact Information.
For Customers located in Japan:
Contact us by: |
At |
During |
9am – 5pm JST |
||
Phone |
+81-03-6746-3666 |
9am – 5pm JST |
For Customers located in Korea:
Contact us by: |
At |
During |
9am – 5pm PT |
||
Phone |
+82-2-3404-9332 |
9am – 5pm PT |
For Customers located in India:
Contact us by: |
At |
During |
Phone |
+91.80.4018.5502 |
9am – 5pm IST |
For Customers located in Europe:
Contact us by: |
At |
During |
Monday 9 am JST– Friday 6pm PT |
||
Phone |
+44 (0) 1276 400352 |
9:00 – 17:00 CET |
For Customers located in North America and all other locations:
Contact us by: |
At |
During |
Monday 9am JST – Friday 6pm PT |
||
Phone |
+1 415.321.5239 |
7am – 6pm PT |
All contact information is subject to change upon notice from Black Duck.
10. GENERAL.
10.1. Export Control. You agree that the Licensed Product, Subscription, Services and Technical Support subject to this Agreement are subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (“EAR”), and sanctions regulations of the U.S. Department of Treasury, Office of Foreign Asset Controls and that Customer will comply with these laws and regulations. Without limiting the foregoing, if any of the Licensed Products, Services and Technical Support governed by this Agreement, or the direct product of any such Licensed Product, Services and Technical Support (each, a “Controlled Product”), is subject to the national security controls as identified on the Commerce Control List (the “Controlled Products”), Customer will not, without a U.S. Bureau of Industry and Security license or license exception, export, re-export, or transfer a Controlled Product, either directly or indirectly, to any national of any country identified in Country Groups D:1 or E:1 as defined in the EARs. In addition, Licensed Product, Services and Technical Support subject to this Agreement may not be exported, re-exported, or transferred to (a) any person or entity listed on the “Entity List”, “Denied Persons List” or the list of “Specifically Designated Nationals and Blocked Persons” as such lists are maintained by the U.S. Government, or (b) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (i) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (ii) the design, development, production, or use of missiles or support of missiles projects; and (iii) the design, development, production, or use of chemical or biological weapons.
10.2. Assignment. You may not assign this Agreement, in whole or in part, by operation of law or otherwise. Any attempt to assign this Agreement without such consent will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
10.3. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of laws known as conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
10.4. Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this agreement will be without prejudice to its other remedies under this Agreement or otherwise.
10.5. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action.
10.6. Notices. All notices required or permitted under this Agreement will be in writing. Notices will be effective upon delivery if delivered in person and upon mailing if delivered by courier service, overnight delivery services or by a form of certified or express mail. Notices affecting this Agreement to Black Duck shall be sent to Black Duck, Inc., 185 Berry Street, Suite 6500, San Francisco CA 94107, Attention: Black Duck Legal Department—Contracts and to You to the primary address You set forth in the registration page or to such other address as You or Black Duck may notify the other party in writing.
10.7. Entire Agreement; Modification; Interpretation. This Agreement, including all additional terms and conditions that may appear on the Subscription Service registration web page, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of this Agreement will be effective only if in writing and signed by You and an authorized representative of Black Duck. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The word “including” when used in this Agreement will mean including without limitation of the generality of any description, definition, term or phrase preceding that word.
10.8. Terms of Use Policy. You shall comply with Black Duck’s Terms of Use Policy (“TOU”), incorporated herein by reference and accessible here. Black Duck may update its TOU from time to time, and such changes shall be incorporated herein by reference automatically.
10.9. Third-Party Beneficiaries. Black Duck’s licensors shall have the benefit of Black Duck’s rights and protections hereunder with respect to the Subscription Services and Results. There are no other third-party beneficiaries under this Agreement.
10.10. U.S. Government Restricted Rights. The Subscription Services, including Results and related Licensed Product and technology, are provided by Black Duck for ultimate federal government end use with federal government rights being limited to those rights customarily provided to the public as defined in this Agreement. The Subscription Service is provided in accordance with FAR 12.211 (Technical Data) and, for Subscription Service provided to Department of Defense customers, DFAR 252.227-7015 (Technical Data – Commercial Items). Licensed Product is “Commercial Computer Licensed Product” as defined under FAR 252.227-7014. For Customers subject to the Defense Federal Acquisition Resolutions (DFAR), the Commercial Computer Licensed Product and associated documentation are sold pursuant to Black Duck’s standard commercial license pursuant to DFARS 227.7202-1.Commercial Products. For all other government customers, use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in subparagraph (b)(2) of Commercial Computer Licensed Product License 48 CFR 52.227-19, as applicable. No additional rights are granted to any federal government customers than those set forth in this Agreement.
10.11. Black Duck Entities. Black Duck Software, Inc. and its wholly-owned subsidiaries, including, but not limited to, Black Duck Software Limited, Black Duck Software Limited Taiwan Branch, Black Duck Software G.K., and Black Duck Software Shanghai Limited., have agreed to their respective rights and obligations regarding the distribution of the Licensed Products and the performance of obligations related to the Licensed Products. You acknowledge that: (a) Black Duck Software, Inc. or any directly or indirectly wholly-owned subsidiary or branch of Black Duck Software, Inc. may treat a purchase order addressed to that entity, representative office or branch as having been addressed to the appropriate entity or entities or branch with distribution rights for the geographic region in which the Licensed Products will be used; and (b) delivery will be completed by the Black Duck entity or branch with distribution rights for the geographic region in which the Licensed Products will be used or service will be provided. For products used or services provided in a country in the Americas, Israel or Africa or US dollar transactions in Russia or China Mainland, the distributing Black Duck entity is Black Duck Software, Inc., based in California, USA. For products used or services provided in Taiwan, the distributing Black Duck entity is Black Duck Software Limited Taiwan Branch, based in Taiwan. For products used or services provided in Japan, the distributing Black Duck entity is Black Duck Software G. K., based in Japan. For products used or services provided in China Mainland in Renminbi, the distributing Black Duck entity is Black Duck Software Shanghai Limited, based in China Mainland. For products used or services provided in any country other than those identified above, the distributing Black Duck entity is Black Duck Software Limited based in Ireland.
10.12. Counterparts and Execution. This Agreement may be accepted electronically or if executed, executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. An originally executed version of this Agreement or any Exhibit or attachment, that is delivered by one party to the other party, as evidence of signature, by facsimile, or by electronic mail after having been scanned as an image file (including, Adobe PDF, TIF, etc.) shall, for all purposes hereof, be deemed an original signature and neither party shall have the right to object to the manner in which the Agreement was executed as a defense to the enforcement of the Agreement. The English language version of this Agreement shall prevail over any translations of this Agreement.
10.13. UCITA Disclaimer. Customer agrees that the Uniform Computer Information Transaction Act or any version thereof, adopted by any state, in any form (“UCITA“), shall not apply to this Agreement. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.
END OF TERMS