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END-USER LICENSE AGREEMENT

END-USER LICENSE AGREEMENT

(“EULA”)

BINARY DEFENSE SYSTEMS VISION SOFTWARE SYSTEM

NOTICE ‑‑ READ these terms and

conditions carefully BEFORE ACCEPTING

CLICKING “ACCEPT” INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, CLICK “REJECT.”

This is a legal agreement between each user that accepts this EULA (each, a “Licensee”) and Binary Defense Systems, Inc., a Delaware Corporation, with its principal place of business at 600 Alpha Parkway, Stow, OH. 44224 (“Licensor”).  Licensor owns the Vision software system made available with this EULA which monitors Licensee computer systems for changes and deviations that are common for compromised computer systems, which include, without limitation, all associated computer software, media, printed materials, and “online” or electronic documentation (collectively, the “Licensed System”).  Licensor provides to Licensee the right to access and use the Licensed System pursuant to the terms of this EULA.  For purposes of this EULA, the term “Affiliate” means a person or entity controlling, controlled by, or under common control with a stated party.

RECITALS:

A.         The Licensed System is available through Licensor directly.  Licensor provides to Licensee the right to permit its employees and other personnel who have been authorized by Licensee (“Authorized Users”) and for which Licensee has paid to Licensor the System Fee (defined below) to access and use the Licensed System pursuant to this EULA.  The right to access and use the Licensed System is subject to acceptance of this EULA by a Licensee, the terms and conditions set forth herein, and the execution of a Master Services Agreement and Statement of Work.

B.         The Licensed System are protected by applicable federal, state, local and foreign laws, rules, regulations and treaties, including, without limitation, United States and foreign copyright laws and international copyright treaties.

            NOW, THEREFORE, in exchange for the mutual promises set forth in this EULA, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.         Grant of License; System Fee. 

a.          Grant of License.  Provided that a Licensee accepts this EULA and complies with all terms and conditions of this EULA, Licensor hereby grants Licensee a limited, non-exclusive, non-transferable, non-assignable, revocable license for Licensee’s internal purposes within Licensee’s organization to permit Licensee to install, implement and use the Licensed System pursuant to this EULA.

b.         System Fee.  The System Fee for the Licensed System shall be as set forth on Licensor invoice or Statement of Work therefor.  The System Fee is net and is not subject to trade or other discounts and does not include local, state or federal taxes or costs of special packaging and insurance, which, when applicable, shall be paid by Licensee. 

2.         Term and Termination

a.          Term.  This EULA shall remain in effect unless the EULA is earlier terminated as permitted under this EULA, a Statement of Work, or the Master Services Agreement (the “Term”).

b.         Termination.  Without prejudice to any other rights, Licensor may terminate this EULA, in whole or in part immediately upon delivery of written notice of termination to Licensee if Licensee fails to comply with any of the terms and conditions of this EULA, the Master Services Agreement, or the applicable Statement of Work.  Additionally, Licensor may terminate this EULA immediately upon delivery of written notice of termination to Licensee after a receiver has been appointed in respect of the whole or a substantial part of Licensee’s assets or a petition in bankruptcy or for liquidation filed by or against Licensee which petition is not dismissed within sixty (60) days following its initiation. Additionally, either party may terminate this EULA, in whole or in part, for convenience during the Term by providing to the other party with notice of termination not less than thirty (30) days prior to the effective date of termination.

c.          Effect of Termination or Expiration.  In the event of the termination or expiration of this EULA, the license granted hereunder shall terminate and Licensee shall immediately cease installing, implementing and using the Licensed System.  Termination or expiration of this EULA shall be without prejudice to any other right or remedy to which Licensor may be entitled under this EULA or applicable law.  Termination or expiration of this EULA shall not relieve Licensee from its obligations arising hereunder before termination or expiration of this EULA or which survive termination or expiration of this EULA.

3.         Additional Software.  Any software which updates or supplements the original software included within the Licensed System is part of the Licensed System, as the case may be, and is governed by this EULA, unless other terms of use are provided with such updates or supplements whereupon such other terms of use shall apply. Any software provided along with the Licensed System that is associated with a separate end-user license or other agreement is licensed to the Licensee under the terms of that separate agreement, except if this EULA specifically sets forth the terms of use for such software, in which event the terms set forth in this EULA shall apply thereto.

4.         Description of Other Rights and Limitations

a.          In connection with the license of the Licensed System by Licensor to Licensee hereunder, the parties acknowledge and agree that Licensor is expressly not selling to Licensee, and Licensee is not acquiring any right, title or interest in or to, Licensor intellectual property or rights, (“Licensor Intellectual Property”) but that Licensee will be granted a limited, personal, non-exclusive, non-transferable, non-assignable license by Licensor to use the Licensor Intellectual Property (including all software code incorporated therein) only as incorporated into the Licensed System for purposes of enabling Licensee to use the Licensed System in the form provided by Licensor and for no other purposes. 

b.         All rights in and to the Licensor Intellectual Property (including, without limitation, all software code incorporated therein) not expressly granted hereunder are reserved to and retained by Licensor. The parties expressly acknowledge and agree that all right, title and interest in and to the Licensor Intellectual Property and all patent, trademark, copyright, trade secret and other intellectual property and proprietary rights in and to the Licensor Intellectual Property are and will be owned by Licensor.  

c.          Restrictions on Use.   Licensee shall not and shall cause its Authorized Users to not:

(i)          market, sell, distribute, sublicense, use, modify, translate, reproduce, create derivative works from, dispose of, rent, lease, or authorize or permit access or use of any portion of the Licensed System except as expressly permitted in this EULA;

(ii)         reverse engineer, decompile, or disassemble the Licensed System, except and only to the extent that such activity is expressly permitted by applicable law;

(iii)        export or use the Licensed System in violation of U.S. law, including Department of Commerce export administration regulations;

(iv)        remove any copyright and other proprietary notices contained in the Licensed System;

(v)         use the Licensed System in a manner which infringes or violates any of the intellectual property, proprietary, or other rights of any third party;

(vi)        incorporate or permit to be incorporated into the Licensed System or any computer or other systems of Licensor any Malicious Code.  For purposes of this EULA, the term “Malicious Code” means any virus, worm, Trojan horse, time bomb or other malicious code intended to harm or negatively affect the operation, integrity, control or security of computer programs, systems, environments or data; or

(vii)        access and use the Licensed System in any manner that is inconsistent with the terms of this EULA, the Master Services Agreement, and any Statement of Work. 

d.         Additional Obligations. 

(i)          Licensee shall comply in full, and shall cause its Authorized Users to comply in full, with all federal, state, local and foreign laws, rules and regulations in connection with its access to, and use of, the Licensed System, or the use thereof, by any employee or agent of Licensee. 

(ii)         The Licensed System may be accessed and used only in a form and manner approved by Licensor in its sole discretion, and only in accordance with the terms and conditions of this EULA, the Master Services Agreement, and any Statement of Work. 

(iii)        To the extent that the Licensed System includes any trademark, service mark, trade name, or the company name of Licensor or its licensors (collectively, “Marks”), Licensee will use, and will cause its Authorized Users to use, such Marks strictly in accordance with Licensor’s trademark standards, policies and procedures as specified by Licensor from time to time. 

(iv)        The right to access and use the Licensed System hereunder is limited to Authorized Users for which Licensee has paid a System Fee and only for Licensee’s internal activities. 

(v)         Licensee shall not remove, and shall cause its Authorized Users to not remove, Licensor’s copyright notices and other proprietary notices on the Licensed System, and all copies thereof shall be subject to all terms, conditions, and obligations of this EULA.

5.         DISCLAIMER.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, ACCESS TO AND USE OF THE LICENSED SYSTEM IS PROVIDED “AS IS”, “WITH ALL FAULTS”. LICENSOR DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OR USE OF THE LICENSED SYSTEM.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA,  NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE LICENSED SYSTEM, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT.   Please note that some jurisdictions may not allow the above exclusion of implied warranties, so some of the above exclusions may not apply to Licensee.

6.         LIABILITY CAP AND LIMITATION OF LIABILITY

a.          LIABILITY CAP.  IN THE EVENT OF A BREACH OF THIS EULA BY LICENSOR, LICENSOR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY AND A LICENSEE’S SOLE AND EXCLUSIVE REMEDY SHALL BE, AT LICENSOR’S OPTION:  (A) RETURN OF THE FEES PAID (IF ANY) BY A LICENSEE FOR THE LICENSED SYSTEM UNDER THIS EULA, OR (B) REPAIR OR REPLACEMENT OF, THE LICENSED SYSTEM; PROVIDED, HOWEVER, THAT A LICENSEE SHALL NOT BE ENTITLED TO THE FOREGOING REMEDY IF ANY ERROR OR PROBLEM WITH THE LICENSED SYSTEM ARISES FROM OR RESULTS FROM VIOLATION OF THIS EULA, ACCIDENT, ABUSE, MISAPPLICATION, ABNORMAL OR UNAUTHORIZED ACCESS OR USE, OR THE INTRODUCTION OF A VIRUS OR OTHER MALICIOUS CODE, BY LICENSEE OR ANY AFFILIATE, EMPLOYEE, AGENT OR CONTRACTOR OF LICENSEE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE TOTAL SYSTEM FEES ACTUALLY PAID TO LICENSOR BY LICENSEE UNDER THIS EULA. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

b.         LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, NEITHER LICENSOR NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE, UNDER ANY CIRCUMSTANCES, LIABLE TO LICENSEE OR ANY OTHER PERSON, FIRM OR ENTITY (WHETHER IN AN ACTION ARISING FROM CONTRACT, TORT OR OTHER LEGAL THEORY) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES RESULTING FROM THE ACCESS OR USE OF THE LICENSED SYSTEM, OR OTHERWISE, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES ARISING FROM (I) INFORMATION OR DATA OBTAINED FROM OR THROUGH THE LICENSED SYSTEM, (II) RELIANCE BY ANY PERSON ON INFORMATION OR DATA OBTAINED FROM OR THROUGH THE LICENSED SYSTEM, (III) VIRUS TRANSMISSION OR DELETION OR LOSS OF FILES OR E-MAIL, (IV) LOSS OF DATA OR INFORMATION OF ANY KIND, (V) LOSS OF PROFIT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (VI) LIABILITY FOR PERSONAL INJURY, OR (VII) LIABILITY TO THIRD PARTIES.

7.         Misuse by Licensee.  Notwithstanding anything to the contrary contained in this EULA, a Licensee shall not be entitled to any remedy under this EULA or otherwise, and Licensor shall have no liability whatsoever, if any error or problem with the Licensed System arises from or results from violation of this EULA by Licensee or any employee, agent, contractor, Affiliate, representative, successor or assign of Licensee, or from accident, abuse, misapplication, abnormal or unauthorized access or use, or the introduction of a virus or other Malicious Code, by Licensee or any employee, agent, contractor, affiliate, representative, successor or assign of Licensee.

8.          Intellectual Property Ownership.

a.          The Licensed System is the intellectual property of and is owned by Licensor and/or its suppliers. The structure, design, organization and code of the Licensed System are the exclusive property, valuable trade secrets and confidential information of Licensor and/or its suppliers and title to the Licensed System shall at all times remain with Licensor and/or its suppliers. Except as expressly stated herein, this EULA does not grant Licensee any intellectual property rights in the Licensed System, or any component or element thereof, and all rights not expressly granted to Licensee under this EULA are reserved to and retained by Licensor and/or its suppliers.  Notwithstanding anything contained in this EULA to the contrary, Licensor reserves the right to make, available, distribute or release the Licensed System under different license terms or to stop distributing, making available or releasing the Licensed System at any time. 

b.         Licensee represents, warrants and covenants to Licensor that Licensee’s use of the Licensed System does not and shall not infringe or violate the intellectual property (i.e., patent, copyright, trademark or trade secret), proprietary or other rights of any third party.

9.          Support Services. Licensor or its suppliers may provide Licensees with support services related to the Licensed System (“Support Services”). Use of Support Services is governed by the policies and programs described in the user manual for the Licensed System, in “online” documentation, in the Statement of Work, and/or other Licensor-provided materials. Any supplemental software code provided to a Licensee as part of the Support Services shall be considered part of the Licensed System, as applicable, and subject to the terms and conditions of this EULA. With respect to technical information Licensee provides to Licensor as part of the Support Services, Licensor may use such information for its business purposes, including providing the Support Services, or for other product support and development

10         Indemnity.

a.          Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, arising in connection with or related to:  (i) the material breach of this EULA by Licensee; (ii) the acts and omissions of Licensee and its Affiliates, Authorized Users, employees, agents and representatives (individually, a “Licensee Affiliated Party” and collectively, the “Licensee Affiliated Parties”) in connection with access to and use of the Licensed System; (iii) the violation, infringement or misappropriation by Licensee or any Licensee Affiliated Party, of the intellectual property, proprietary or other rights of any third party.  

b.         If any claim is commenced against a party entitled to indemnification under this paragraph (“Indemnified Party”), the Indemnified Party will provide notice of the claim and copies of all related documentation to the party obligated to provide indemnification (“Indemnifying Party”) and the Indemnifying Party will assume control of the defense of such claim at its cost and expense. Such notice and documentation will be provided as promptly as possible; provided, that in no event shall the Indemnifying Party be relieved of its indemnification obligations hereunder unless the failure to provide notice promptly hereunder results in, and then only to the extent of, actual prejudice to the rights of the Indemnifying Party. The Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in the investigation, trial and defense of such claim and any appeal.  In such case, the Indemnifying Party will reasonably cooperate with the Indemnified Party’s attorneys.

11.        Export Rules. Licensee agrees that access to and use of the Licensed System will not be provided by Licensee or any employee or agent of Licensee to any citizen of a country to which access or use thereof is barred, or to which exports or shipments are barred, by the United States government.  Further, the Licensed System will not be shipped, transferred or exported by Licensee or any employee or agent of Licensee into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Licensed System is identified as export controlled items under the Export Laws, Licensee represents and warrants that neither Licensee nor any of its Authorized Users is a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, North Korea, and Serbia) and that neither Licensee nor any of its Authorized Users is otherwise prohibited under the Export Laws from receiving access to or using the Licensed System. All rights to access and use the Licensed System are granted on condition that such rights are forfeited if Licensee or any Authorized User fails to comply with the terms of this EULA.

12.        Applicable Law.  This EULA is governed, construed and enforced in accordance with the laws of the State of Ohio, without giving effect to any principles of conflicts of laws. Jurisdiction and venue for all actions arising under this EULA shall be in the federal and state courts located in Cuyahoga County, Ohio.   The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this EULA.

13.        Entire Agreement.  This EULA, the Master Services Agreement, any applicable Statements of Work, and any documentation related to Support Services is the entire agreement between a Licensee and Licensor relating to the subject matter of this EULA and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter of this EULA. 

14.        Notices and Questions.  All notices and demands hereunder shall be in writing and shall be served by personal service, electronic mail, or by mail at the address of the receiving party set forth in this EULA (or at such different address as may be designated by such party by written notice to the other party).  All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt.  Should a Licensee have any questions concerning this EULA, or if Licensee desires to contact Licensor for any reason, please contact Licensor by email at [email protected].

15.        Confidentiality.  Licensee acknowledges that Licensee or a Licensee Affiliated Party may receive or become aware of confidential information and trade secrets of Licensor (“Confidential Information”).  Licensee agrees to maintain and protect, and cause all Licensee Affiliated Parties to maintain and protect, the confidentiality of all Confidential Information of which it becomes aware (whether or not identified or marked as confidential at the time of its disclosure) and not disclose any Confidential Information, except as required by law (for example, under a court order or subpoena), to any person, firm, or entity other than the Licensee Affiliated Parties who have a need to know such Confidential Information for purposes of the license granted to Licensee hereunder, and Licensee shall preserve and protect, and cause all Licensee Affiliated Parties to preserve and protect, the confidentiality of all Confidential Information of which it becomes aware using the same degree of care that it uses to protect its own trade secrets, but never less than reasonable care.  Further, Licensee shall not use or disclose, and shall cause all Licensee Affiliated Parties not to use or disclose, any Confidential Information for any purpose not permitted by this EULA.  Licensee agrees to formulate and adopt appropriate safeguards in light of its own operating activities to ensure protection of the confidentiality of all Confidential Information of which it becomes aware. The restrictions on disclosure set forth above shall not apply when, and to the extent that, Confidential Information: (a) is part of the public domain through no action or failure to act by Licensee; (b) is made available to the general public by Licensor or a third party who is lawfully in possession of such information, not as a result of any action or failure to act on the part of Licensee; (c) was previously known to Licensee free of any obligation to keep it confidential; (d) is subsequently disclosed to Licensee free of any obligation to keep it confidential; or (e) is independently developed by Licensee or a third party other than in breach of this EULA.  In addition, Licensee will not be considered to have breached its obligations under this EULA to the extent Confidential Information is required to be disclosed by court order or order of a governmental authority or by applicable law, provided Licensee, to the extent practicable, advises Licensor in writing prior to making such disclosure so that the Licensor may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information. Violations of this Section 15 are likely to cause irreparable harm and therefore Licensor may seek immediate injunctive relief without the need of posting bond in the event of a violation of this Section 15.

16.        Dispute Resolution.  The parties will attempt to settle any claim or controversy arising out of this EULA through consultation and negotiation in good faith in a spirit of mutual cooperation.  If those attempts fail, then the dispute will be mediated by a mutually accepted mediator to be chosen by the parties within forty-five (45) days after written notice by either party to the other demanding mediation.  No party may unreasonably withhold consent to the selection of a mediator.  The parties will share the cost of the mediation equally.  By mutual agreement, the parties may postpone mediation until some specified but limited discovery about the dispute has been completed.  The parties may also agree to replace mediation with some other form of alternative dispute resolution.  Any dispute which cannot be resolved by the parties through negotiation, mediation or other form of agreed alternative dispute resolution within one hundred twenty (120) days following the date of the initial demand for it by one of the parties may then be submitted to the courts for resolution.  Nothing in this section will prevent a party from resorting to judicial proceedings if:  (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful; (b) interim, injunctive or other equitable relief from a court is necessary to prevent serious and irreparable injury to one party or to others; or (c) litigation is required to be filed prior to the running of the applicable statute of limitations.  The use of any alternative dispute resolution procedure will not be construed under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party.  All of the above alternative dispute resolution procedures shall be confidential.

17.        Force Majeure.  Licensor shall not be responsible for delays or failure of performance resulting from acts beyond the reasonable control of Licensor.  Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failures, Internet or telecommunications failures, earthquakes, or other disasters. 

18.        Compliance with License and Laws/Audit Rights.  Licensee shall comply with, and all cause all Licensee Affiliated Parties to comply with, all federal, state, local and foreign laws, regulations, rules and ordinances pertaining to the operations and conduct of its business and the license granted to Licensee under this EULA.  In the event that any part of this EULA is determined to violate any applicable federal, state, local or foreign laws, rules or regulations, then the remaining provisions of this license shall remain in full force and effect and shall be enforced to fullest extent permitted by law and the parties agree to negotiate in good faith revisions to the provision or provisions that are in violation.  In the event the parties are unable to agree to modified terms as required to bring the entire EULA into compliance, either party may terminate this EULA by not less than ten (10) days prior written notice to the other party.  Licensor shall have the right to audit Licensee’s compliance with the terms of this EULA upon reasonable prior written notice, during Licensee’s regular business hours.  Licensee shall cooperate with and assist Licensor in the conduct of any such audit.  In addition to any other rights or remedies that may be available to Licensor under this EULA or applicable law, in the event that any audit reveals that Licensee has not paid to Licensor the full amount of the System Fees due and payable to Licensor hereunder, upon notice from Licensor, Licensee shall immediately pay to Licensor an amount equal to the unpaid System Fees, plus interest at the rate of the lesser of (i) 1 ½ percent per month, or (ii) the maximum amount permitted under applicable law, on the unpaid balance System Fees due and payable hereunder until such balance is paid in full.

19.        Survival. Sections 1, 2b, 2c, and 3 – 22 shall survive the termination or expiration of the EULA for any reason.

20.        Headings.  The titles and headings of the various sections and paragraphs in this EULA are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this EULA.  The opening two paragraphs and the Recitals to this EULA are incorporated herein.

21.        Forms.  No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this EULA.

22.        Waiver/Assignment.  A waiver of any provision of this EULA shall only be effective if in a writing signed by the party against which the waiver is claimed.  This EULA may not be assigned by Licensee without the prior written consent of Licensor.  This EULA may be assigned by Licensor, by operation of law or otherwise, without the consent or approval of Licensee or any other person, firm or entity.

IN WITNESS WHEREOF, the parties hereto have entered into this EULA.