End User License Agreement (Rev1.1)

This End User License Agreement (the “EULA”) is granted by Ridgeback Network Defense, Inc. (“RND”), a Maryland corporation with its principal place of business at 5520 Research Park Drive, Suite 100, Baltimore, Maryland 21228 to _______________________________  (“Licensee”place of business at __________________________________________________________.

1. Definitions.

Documentation” means published written documentation related to the use or maintenance of the Software, Equipment or Updates provided by RND or a Supplier under this EULA.

Equipment” means any hardware or development platforms provided by RND or a Supplier under this EULA which may include, without limitation.

Library Elements” means any functions or algorithms developed by RND or a Supplier and made generally available by RND to purchasers of Equipment for the purpose of application development by the Licensee.

Licensed Materials” means any Software, Equipment, Documentation, Educational materials or other Updates delivered with this EULA.

Software” means Development System Software, Library Elements, or Standalone Software provided by RND or a Supplier pursuant to this EULA.

Standalone Software” means any Software provided by RND to Licensee in machine readable (object code) form separately from any Equipment.

Suppliers” means any providers of third party software that is included with Software provided under this EULA. 

Updates” means any corrections, enhancements, bug fixes or other modifications for the Licensed Materials provided to Licensee by RND pursuant to this EULA.   

2. License.

(a) Grant.  Subject to the terms and conditions of this EULA, RND, grants to Licensee a limited, non-exclusive, non-transferable perpetual license, without the right to sublicense.

(b) Restrictions.  The license set forth above does not include any rights to and Licensee shall not (i) reproduce, modify, translate or create any derivative work of all or any portion of the Licensed Materials, (ii) sell, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Licensed Materials, (iii) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Licensed Materials, (iv) use the Licensed Materials for third-party training, outsourcing, commercial time-sharing or service bureau use, (v) remove, alter, cover or obfuscate any copyright notices, trademark notices or other proprietary rights notices placed or embedded on or in the Licensed Materials, (vi) use any component of the Licensed Materials other than solely in conjunction with operation of the Software and as applicable, Equipment, (vii) unbundle any component of the Licensed Materials or (viii) cause or permit any third party to do any of the foregoing.

(c) Copies.  Licensee may not make copies of the Software back-up purposes; provided that any such copy is the exclusive property of RND and its Suppliers and includes all copyright and other intellectual property right notices that appear on the original.

(d) Updates.  RND may provide Updates at its sole discretion.  Updates to any component of the Software may only be used as permitted for such component in Section 2(a)

(e) Audit.  RND shall have the right to inspect and audit Licensee’s use, deployment, and exploitation of the Licensed Materials for compliance with the terms and conditions of this EULA.

(f) Transfer.  Licensee shall have the right to transfer RND products within the enterprise/business entity or governmental organization listed as the customer on the EULA. All conditions of this EULA and such third party agrees in writing to be bound by all the terms and conditions of this EULA and registering with RND.

3. Ownership. RND owns all rights, title and interest (including without limitation all intellectual property rights), in and to the Licensed Materials and any modifications or improvements thereto, whether or not made by RND.  Licensee acknowledges that the licenses granted under this EULA do not provide Licensee with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this EULA.  Except as expressly set forth in Section 2, RND reserves all rights and grants Licensee no licenses of any kind hereunder.  Licensee hereby assigns to RND all information, including but not limited to feedback or suggestions, provided to RND with respect to the Licensed Materials, and such information shall be deemed Confidential Information (as defined in Section 4).

4. Confidentiality.  Licensee agrees that the Licensed Materials contain confidential information, including trade secrets, know-how, and information pertaining to or the technical structure or performance of the Licensed Materials (collectively, “Confidential Information“), that is the exclusive property of RND as between Licensee and RND.  During the period this EULA is in effect and at all times thereafter, Licensee shall maintain Confidential Information in confidence and use the same degree of care, but in no event less than reasonable care, to avoid disclosure of Confidential Information as it uses with respect to its own confidential and proprietary information of similar type and importance.  Licensee agrees to disclose Confidential Information only to its employees who have a bona fide need to know solely to exercise Licensee’s rights under this EULA and to use the Confidential Information only incidentally in the customary operation of the Licensed Materials.  Licensee shall not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available the Confidential Information to any third party nor use such information except as authorized by this EULA.  Licensee agrees to immediately notify RND of the unauthorized disclosure or use of the Licensed Materials or Confidential Information and to assist RND in remedying such unauthorized use or disclosure.  It is further understood and agreed that any breach of this Section 3 or Section 2(b) is a material breach of this EULA and any such breach would cause irreparable harm to RND and its Suppliers, entitling RND or its Suppliers to injunctive relief in addition to all other remedies available at law.

5. Indemnification

(a) RND shall defend Licensee against any third party action alleging that the Licensed Materials infringe any valid U.S. patent or copyright, and RND shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) awarded against Licensee in connection with such action, provided Licensee (i) notifies RND promptly in writing of any such action, (ii) gives RND exclusive control and authority over the defense or settlement of such action, (iii) does not enter into any settlement or compromise of any such action without the prior written consent of RND and (iv) provides all reasonable assistance to RND at the request and expense of RND.  If any Licensed Material becomes, or in the opinion of RND may become, the subject of an infringement claim, RND may, at its option, (i) procure for Licensee the right to continue using such Licensed Material, (ii) modify or replace such Licensed Material with substantially equivalent noninfringing products, or (iii) require the return of such Licensed Material and refund to Licensee a pro-rata portion of the purchase price of such Licensed Material on a three-year straight line amortization of the purchase price. 

(b) RND shall have no indemnification obligations with respect to any third party action alleging that (i) the use of any Licensed Materials, or any part of them, in combination with products or technology not supplied by RND, or (ii) any service or other process utilizing any Licensed Materials infringes any third party intellectual property right, and in such event Licensee will defend RND, and its officers, directors and employees, against any such action, and Licensee will pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) awarded against such party in connection with such action, provided RND (i) notifies Licensee promptly in writing of any such action, (ii) gives Licensee exclusive control and authority over the defense or settlement of such action, (iii) does not enter into any settlement or compromise of any such action without Licensee’s prior written consent and (iv) provides all reasonable assistance to Licensee at the request and expense of Licensee.

(c) THIS SECTION 5 STATES THE ENTIRE LIABILITY FOR RND AND THE SOLE REMEDY FOR LICENSEE FOR ANY CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.

6. Warranty Disclaimer; Support.    

(a) THE LICENSED MATERIALS ARE PROVIDED “AS IS”, AND RND AND ITS SUPPLIERS MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO LICENSED MATERIALS OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER RND NOR ANY OF ITS SUPPLIERS WARRANT THAT THE LICENSED MATERIALS OR ANY PART THEREOF WILL MEET LICENSEE’S REQUIREMENTS OR BE UNINTERRUPTED, OR ERROR-FREE, OR THAT ANY ERRORS IN THE LICENSED MATERIALS WILL BE CORRECTED.

(b) For a period of ninety (90) days from the date of purchase of any Licensed Materials, RND will provide reasonable support regarding installation and set-up of such Licensed Materials. Ridgeback should be contacted via e-mail.

7. Term and Termination.  This EULA commences on the date this EULA is signed by the Licensee and continues until terminated.  Licensee may terminate this EULA at any time by destroying all copies of the Standalone Software and returning the remaining Licensed Materials (including the copy made pursuant to section 2(d)) to RND.  This EULA and all licenses granted hereunder will terminate immediately without notice from RND if Licensee fails to comply with any provision of this EULA.  Upon any termination, Licensee must destroy all copies of the Licensed Materials. Sections 2(b) and 3 – 11 shall survive any termination of this EULA.

8. Export. The Licensed Materials are specifically subject to U.S. Export Administration Regulations.  Licensee agrees to strictly comply with all export, re-export and import restrictions and regulations of the Department of Commerce or other agency or authority of the United States or other applicable countries, and not to transfer, or authorize the transfer of, directly or indirectly, the Licensed Materials or any direct product thereof to a prohibited country or otherwise in violation of any such restrictions or regulations.  Licensee’s failure to comply with this Section is a material breach of this EULA. 

9. Government Restricted Rights.  As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the Licensed Materials provided in connection with this EULA are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.”  Consistent with DFAR section 227.7202, FAR section 12.212 and other sections, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.  Any technical data provided that is not covered by the above provisions shall be deemed “technical data-commercial items” pursuant to DFAR section 227.7015(a).  Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR section 227.7015(b). 

10. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RND OR ITS SUPPLIERS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (OR DIRECT DAMAGES IN THE CASE OF THE SUPPLIERS) ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR UNDER THIS EULA OR ANY USE OR INABILITY TO USE THE LICENSED MATERIALS OR EQUIPMENT, OR FOR BREACH OF THIS EULA.  RND’S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS EULA, OR USE OR INABILITY TO USE THE LICENSED MATERIALS OR EQUIPMENT, OR FOR BREACH OF THIS EULA, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID FOR THE APPLICABLE LICENSED MATERIALS.  THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF RND AND/OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11. General

(a) Governing Law and Jurisdiction.  This EULA is governed and interpreted in accordance with the laws of the State of Maryland, U.S.A. without reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods. The parties consent to the exclusive jurisdiction of, and venue in, Baltimore County, Maryland, U.S.A. 

(b) Assignment. Licensee shall not transfer, assign or delegate this EULA or any rights or obligations hereunder, whether voluntarily, by operation of law or otherwise, without the prior written consent of RND.  Subject to the foregoing, the terms and conditions of this EULA shall be binding upon and inure to the benefit of the parties to it and their respective heirs, successors, assigns and legal representatives. 

(c) Merger, Modification and Waiver.  This EULA constitutes the entire EULA between RND and Licensee with respect to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard thereto.  No modification of or amendment to this EULA, nor any waiver of any rights under this EULA, by RND shall be effective unless in writing.  If there is any conflict between the terms and conditions of this EULA and the terms and conditions of any purchase order or other document, the terms and conditions of this EULA shall prevail.  The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

(d) Severability.  If any of the provisions of this EULA is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted.

(e) Notices.  All notices permitted or required under this EULA shall be in writing and shall be delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this EULA or such address as either party may specify in writing.  Such notice shall be deemed to have been given upon receipt.

(f) Counterparts.  This EULA may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

IN WITNESS WHEREOF, the Licensee has caused this EULA to be executed by their duly authorized representative:

Signature: ________________________________________________

Name: ___________________________________________________

Title: ____________________________________________________

Date: ____________________________________________________