ThreatDown Software License Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE THREATDOWN SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT, THE “SOFTWARE-AS-A-SERVICE” DELIVERY SERVICES (“SAAS SERVICES”) THAT MAY BE USED TO PROVIDE ACCESS TO SUCH SOFTWARE, OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT AND THE THREATDOWN ORDERING DOCUMENT YOU EXECUTED OR AGREED TO, AND (WHERE APPLICABLE) ANY THREATDOWN LICENSE KEY INFORMATION, IN EACH CASE GOVERNING YOUR LICENSE TO THE SOFTWARE (COLLECTIVELY, THE “PURCHASE RECEIPT”) (THIS SOFTWARE LICENSE AGREEMENT AND THE PURCHASE RECEIPT COLLECTIVELY, THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU AND COMPANY AND GOVERN USE OF THE SOFTWARE UNLESS YOU AND COMPANY HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING USE OF THE SOFTWARE.
“COMPANY” OR “THREATDOWN” MEANS: (A) IF YOU ACQUIRED THE SOFTWARE IN THE UNITED STATES OR CANADA, MALWAREBYTES CORPORATE HOLDCO INC., A DELAWARE CORPORATION; OR (B) IF YOU ACQUIRED THE SOFTWARE IN ANY OTHER COUNTRY, MALWAREBYTES CORPORATE HOLDCO IRELAND LTD., A COMPANY INCORPORATED IN IRELAND.
Company is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By clicking to accept where indicated below or by downloading, installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. You represent and warrant that you have the authority to bind the company or other legal entity you represent to the terms of this Agreement, and, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Company is unwilling to license the Software to you and you are prohibited from using it.
(a) Trial Licenses.
If you have obtained atrial or evaluation version of the Software from Company or from a Company authorized reseller, then conditioned upon your compliance with the terms and conditions of this Agreement, Company grants you a non-exclusive and non-transferable license to Execute the Software solely in executable form. The foregoing license permits Execution of only such number of copies of the Software, and on such number of devices (including mobile devices), computers or virtual machines (“Devices”), as is expressly permitted by Company with respect to your trial with each instance of an operating system on a partitioned or virtualized machine counted as a Device. If no such number of copies or Devices is specified by Company, the foregoing license permits Execution of a single copy of the Software on a single Device. Notwithstanding the foregoing, the trial or evaluation version of the Software is not licensed for, and shall not be Executed on, any Device which runs an operating system designed for servers. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and/or run the Software locally on a single Device in order to benefit from its functionality as designed by Company.
(b) Paid License.
If you purchased a license to the Software from Company or from a Company authorized reseller, then upon payment of the associated fees, as and when such fees become due, and conditioned upon your compliance with the terms and conditions of this Agreement, Company grants you a non-exclusive and non-transferable license to Execute the number of copies of the Software for which you have paid solely in executable form on the corresponding number of Devices owned or used by you. Furthermore, you may not Execute the Software on any Device(s) running a server operating system unless it is a Company server product as reflected in its official product name or detailed in the associated official release notes. For the sake of clarity, to the extent detailed in its release notes, Company Breach Remediation (not available as a standalone product) may be executed on a server. You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current license term or any new releases), or dependent on any oral or written public comments made by Company regarding future functionality or features.
(a) Trial License.
If you have a trial license, your license permits you to use the Software solely for evaluation purposes, and not for production use, in such event you may only use the trial Company Software downloaded via the business link to remediate up to five (5) Devices for a 30 day period.
(b) Paid License.
If you have a paid license, your license permits you to use the Software solely for your internal business purposes. Other than the limited exception stated in the immediately following sentence, once Executed on a Device, you may not transfer the Software to a different Device, even if you uninstall and remove the Software from the first Device. During each year of your licensed subscription you may transfer Software that has been Executed on a Device to a different Device, provided that each of the following requirements are met: (a) the amount of Devices subject to transfer does not exceed 10% of your licensed Devices for such Software (“Transfer Allowance”); (b) only single transfers are permitted (the transferred Software cannot be transferred to a third Device in the same year); and (c) you have uninstalled and removed the Software from the first Device. Unused amounts of your Transfer Allowance will not carry over to subsequent subscription years.
(c) All Licenses. Whether you have a trial, evaluation, or paid license: (i) you may make a reasonable number of copies of the Software for back-up or archival purposes; (ii) the Software may only be used by your employees and consultants (“Authorized Users”), who have agreed to abide by the terms of this Agreement and who may only use the Software for the purposes of performing their job functions for you; (iii) you are responsible for the use of the Software by your Authorized Users (and their compliance with this Agreement); and (iv) once Executed on a Device, the Software may be operated by any Authorized User using the Device, directly or (where that person is providing support services to you with respect to that Device) via remote connection; provided that each such Device is running an authorized copy of the applicable Software. Other than for the sole purpose of assisting the management and administration of Software on Devices within a network, you may not combine the Software with any third-party script, application, hardware or tools which would cause it to run on an automated or unattended basis.
(d) Optional Software Utilities, Beta Features and Beta Releases.
From time-to-time, Company, at its sole discretion, may make available to you optional Software, including but not limited to utilities for supporting the usage of the Company Software, beta features that can be enabled within the Software, and beta releases of Software (collectively “Optional Items”). Unless a particular Optional Item includes its own separate and specific terms and conditions, this Agreement shall govern the usage of Optional Items. Conditioned upon your compliance with the terms and conditions of this Agreement, Company grants you a non-exclusive and non-transferable license to Execute the Optional Items solely in executable form and solely for your internal business purposes of supporting the Software, and in the case of beta features and releases, for evaluation purposes. Software such as Optional Items are sometimes provided by software providers as preview releases of new features and programs, as well as quick fixes for resolving specific issues. Optional Items are not fully tested by Company and may include significant issues. You acknowledge that Optional Items are likely to present risks associated with their use. Company strongly recommends that you back up all of your data prior to using such type of software from any source. Notwithstanding anything to the contrary in this Agreement, Optional Items are provided “as is”, and do not carry any warranties or maintenance or support; similarly, in no event shall Company be liable for any damage arising from the use of Optional Items.
Except as specifically permitted under Section 2(g) below, you must have a license to the Software for every Device on which you operate the Software. You may run the Software on a network, provided that you have a license to the Software for each: (1) Device that the Software is Executed on; and (2) Device or user instance that can access the Software over that network that is not included in (1). You may not use on behalf of, or make the functionality of the Software available to, third parties for any purpose, such as for providing any computer repair, help desk or troubleshooting service. Except as expressly specified or permitted in this Agreement, you may not: (i) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; (iii) make the functionality of the Software available to any third party through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, SaaS or any other type of services; or (iv) use the Software for any illegal purpose or conduct. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Company and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software or Database (defined below), in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will comply with any additional restrictions contained in your Purchase Receipt or other purchasing documentation.
(f) SaaS Delivery.
For Software provided through SaaS Services, Company shall use commercially reasonable efforts to make such SaaS Services available to you, subject to downtime for scheduled or emergency maintenance. You may only use the SaaS Services in connection with your access to the Software and solely for your internal business purposes.
(g) Site License.
Company licenses certain Software products on a Site License basis. Where you have a “Site License”, it shall be identified in the product description of the Purchase Receipt. A Site License grants you the ability to execute the Software for your internal use, in accordance with this Agreement., within the band purchased and is not limited to a fixed amount of Devices. Site License pricing is banded with bands determined by employee count. The Parties will reevaluate the Site License band at the end of the Software subscription term.
(h) Prohibited Uses.
While using the Software and/or SaaS Services you agree not to, directly or indirectly, use the Software and/or SaaS Services, or assist others in using the same for: anything unlawful or illegal; violating a third party’s rights, including privacy and property rights, and harassing others; harming, or attempting to harm, others (“Prohibited Uses”). We may suspend your account where we deem it necessary to prevent or terminate any suspected Prohibited Use or violation of law. Such suspension shall not toll or pause your license term from elapsing or entitle you to any refunds.
Each copy of the Software is licensed, not sold. For purposes of this Agreement, the terms “purchase,” “sell” and like terms refer to purchase or sale of a license to use the Software and not to a purchase or sale of title to or ownership of any rights or other interests in the Software. You own the media on which the Software is recorded, but you acknowledge and agree that Company retains ownership of the Software itself and any related data or databases used by Company or the Software (the “Database”), including all intellectual property rights therein. The Software and Database are protected by U.S. copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you. Company reserves all rights in the Software and Database not expressly granted to you in this Agreement.
From time to time, Company may, but has no obligation to, provide updates to the Software. You are advised to update the Software regularly, or to set it to update automatically if that feature is available in your version of the Software. If you are a paying customer with a current subscription purchased from Company or a Company authorized reseller, we will make available to you the standard updates and maintenance and support that we make generally available at no additional cost to paying subscribers from time to time. Nothing in this Agreement entitles you to receive any support, maintenance, updates, content or new versions of the Software, unless you are a paying customer with a current subscription purchased from Company or a Company authorized reseller. You understand and agree that your purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features. Company reserves the right to designate any updates, additional content or features as requiring separate payment or purchase of a separate subscription at any time. Company specifically reserves the right to cease providing, updating, maintaining or supporting the Software or Database at any time in its sole discretion, in accordance with the Company Lifecycle Policy located at https://www.threatdown.com/lifecycle. If you have ordered maintenance and support from Company, then Company will provide Software maintenance and support in accordance with the terms of the agreement located at https://www.threatdown.com/legal/support-services-agreement, not this Agreement.
(a) Paid Subscription License Term.
If you have purchased a license to the Software, then the initial term of this Agreement commences on the date specified in the Purchase Receipt or applicable purchasing documentation accompanying the Software (or if no such date is specified, the date you initially Execute a copy of the Software on a Device (regardless of the number of copies of the Software that you are permitted to use in accordance with this Agreement)), and, in each case, continues for the period of time set forth in the Purchase Receipt or applicable purchasing documentation (or, if no such date is specified, for one year).
Your subscription shall automatically renew (unless you opt out of autorenewal on your Purchase Receipt). Where you opt in to autorenewal and later change your mind, you can avoid automatic renewal by providing us with at least thirty (30) days’ written notice (email sufficient) prior to the renewal date.
(b)Trial License Term.
If you have obtained a trial license to the Software, then your license will continue for such time period as may be specified by Company with respect to such trial (or, if no such period is specified, for 30 days). In addition, Company may terminate your trial license at any time at its sole discretion.
(c) Termination Rights.
Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and such breach remains uncured after thirty (30) days’ written notice of such breach. Furthermore, the license granted under this Agreement will automatically terminate, with or without notice from Company, if you breach any term of this Agreement. If you have a paid license, and if you fail to pay the applicable license fees as specified in the Purchase Receipt or applicable purchasing documentation, your existing license to the Software ends automatically and you shall, within thirty (30) days after such date, erase from all computers, servers, networks, and other media and hardware all copies of the Software (except to the extent, if any, your retention of a copy is required for regulatory purposes). If you have a trial license, your license to the Software ends automatically at the end of the applicable trial period. You acknowledge that upon expiration or termination of your license, the Software and any license key may automatically deactivate and you may no longer be able to access and use the Software. If you assert any patents against us or any of our other customers based on use of the Software, your license to the Software ends automatically.
(d) Effect of Termination.
Upon termination or expiration of this Agreement, your rights to use the Software cease. If this Agreement is terminated by you in accordance with the section 5(c) above, Company will refund you any prepaid fees covering the remainder of the term of all Purchase Receipts after the effective date of termination. If this Agreement is terminated by Company in accordance with the section 5(c) above, you shall pay any unpaid fees covering the remainder of the term of all Purchase Receipts to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees payable to Company for the period prior to the effective date of termination. Sections 3, 5(d), 7, 8, 9, 11, 12, 13 and 14 of this Agreement, and any provisions which explicitly state that they shall continue, will survive any termination or expiration of this Agreement.
6. Payment Terms.
The price payable by you is the price stated in the Purchase Receipt or applicable purchasing documentation (or, if no such price is specified, the price set out in our then current standard published price list). Our prices are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). If we issue an invoice to you, all invoices are payable within 30 days of the invoice date unless specified differently in the invoice or purchasing documentation. You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Company’ net income. All amounts are payable and charged at the beginning of the applicable subscription term. You will not receive a refund for the fees you already paid for your current subscription period. If you purchased the Software from a Company authorized reseller, the payment obligation and pricing terms are determined between you and the authorized reseller.
7. Privacy and Data Protection.
(a) Company as a Controller.
(b) Company as a Processor.
Where Company acts as a “processor”, “service provider”, or another similar term under applicable data protection laws, each party shall comply with its obligations under the data processing addendum at https://www.threatdown.com/legal/ (“DPA”), the terms of which are incorporated herein by reference.
(c) Additional Data Protection Terms.
8. Limited Warranty; Disclaimer.
Provided that you purchased the Software from Company or a Company authorized reseller, Company warrants that any physical media manufactured by Company on which the Software is distributed will be free from defects for a period of 60 days from the date of delivery of the Software to you. Your sole and exclusive remedy, and Company’ sole liability, in the event of a breach of the foregoing warranty will be that Company will, at its option, replace any defective media returned to Company within the warranty period or refund the money you paid for the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8 IS EXCLUSIVE AND LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8, COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INDEMNITIES, OBLIGATIONS, AND OTHER LIABILITIES IN CONNECTION WITH ANY INTEGRATION WITH THE SOFTWARE. Company does not warrant that the Software will meet your requirements, that the Software will operate in the combinations, on the operating system or in the environments that you may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. Company specifically disclaims any warranty or representation as to the Software’s ability to eliminate any specific malware threats or the completeness of the Database or protection modules. You are solely responsible for the data, software and other content carried on your Devices and for backing-up your data, software and other content.
9. Limitation of Liability.
COMPANY’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO COMPANY BY YOU FOR THE APPLICABLE SOFTWARE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
10. U.S. Government End Users.
The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software will be only those specified in this Agreement.
11. Export Laws.
You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
12. Feedback; Marketing.
If you provide any ideas, suggestions, or recommendations regarding the Software or the Database (“Feedback”), Company will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant Company a worldwide, perpetual, irrevocable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner such Feedback. You grant Company the right to use your trade name (and the corresponding trademark or logo) on the Company website and marketing materials to identify you as a customer.
Except as set forth below, each party agrees to the governing laws and the exclusive jurisdiction, without regard to choice or conflicts of law rules, based on your domicile as shown in the table below:
|Canada, or the United States of America
|If you are a U.S. resident, Section 12 (“Agreement to Arbitrate – U.S. Customers”) applies. If you are not a U.S. resident, the state of federal courts located in the Northern District of California
|Europe, the Middle East, or Africa
|The courts located in Dublin, Ireland.
|Asia and Oceania
|The courts located in Singapore.
If you are accepting the Agreement on behalf of a United States federal government entity, then the following applies instead of the paragraph above: the laws of the United States of America, excluding its conflict of laws rules, will apply to any disputes arising out of or related to this Agreement. Solely to the extent permitted by United States Federal law: (i) the laws of the State of Delaware (excluding Delaware’s conflict of laws rules) will apply in the absence of applicable federal law; and (ii) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SOFTWARE, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
If you are accepting this Agreement on behalf of a United States city, county, or state government entity, then the following applies instead of the paragraph above: the parties agree to remain silent regarding governing law and venue.
The United Nations Convention on Contracts for the International Sale of Goods will not apply.
You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Company’ prior written consent, and any attempt by you to do so, without such consent, will be void. Company may assign or transfer this Agreement to any of its affiliates without notice to you. 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. All notices or approvals required or permitted under this Agreement will be in writing and delivered by email (we will email you at the email address you provided us when you initially purchased your license), and in each instance will be deemed given upon receipt. The failure by either party 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 any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Company have executed a separate agreement. Any terms or conditions contained in your purchase order or other purchasing document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Company and will be deemed null. You acknowledge that Company is not a Business Associate or subcontractor (as those terms are defined in Health Insurance Portability and Accountability Act commonly referred to as ‘HIPAA’) or a payment card processor and that the Software, SaaS Services, and any services provided may not be HIPAA nor PCI DSS compliant.
14. Audit Rights.
During the term of this Agreement and for one (1) year thereafter, you will permit Company, or its duly authorized representatives, on reasonable prior notice, to audit your systems and access your account(s) associated with the Software and/or SaaS Services, with respect to all matters related to: (A) the number and type of Devices utilizing the Software and/or SaaS Services, or (B) your compliance with its obligations under this Agreement.
In the event the audit identifies that you are using the Software and/or SaaS Services with a greater number of Devices than the number and type you have ordered and paid for (each referred to as a “Prohibited Device”), then you shall be liable for and pay as liquidated damages an amount equal to (as calculated based on Company’ then current list prices): the fees for the Software license and/or SaaS Services for each Prohibited Devices plus any related support services for a term equal to the greater of: (i) the period of time the Prohibited Devices began using the Software and/or SaaS Services, or (ii) twelve (12) months. Additionally, Customer shall be liable for the total reasonable costs of the audit where any Prohibited Devices are discovered. Where the audit confirms that you are in compliance with its obligations under this Agreement, Company shall bear the total costs it incurred associated with the audit.
15. Contact Us.
If you have any questions regarding this Agreement, you may contact Company support by visiting the support portal at www.threatdown.com. If you wish to send us a legal notice, please start the subject line of your email with “Attention: Legal Department”.