This End User License Agreement (“EULA”) contains the terms by which you may use the Kroll Artifact Parser and Extractor software and any components thereof (including, without limitation, any modules and targets) (“KAPE”) and any and all hard copy or online user manuals, instructions or other materials that accompany KAPE (“Documentation,” and collectively with KAPE, the “KAPE Materials”) made available by Kroll Cyber Security, LLC (“Kroll,” “we,” “our,” “us”). You may access the latest version of this EULA at the Kroll website, available at https://learn.duffandphelps.com/kape-license-agreement. By downloading or using the KAPE Materials, or clicking a button or checking a box marked “I Agree” or similar, you signify that you have read, understood, and agree to be bound by the terms and conditions of this EULA.
PLEASE READ THIS EULA CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS EULA CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of the KAPE Materials.
1.1 Eligibility. This is a contract between you and Kroll. You must read and agree to this EULA before using the KAPE Materials. If you do not agree, you may not use the KAPE Materials. You may use the KAPE Materials only if you can form a binding contract with Kroll, and only in compliance with this EULA and all applicable local, state, national, and international laws, rules, and regulations. Any use of the KAPE Materials by anyone under eighteen (18) years of age is strictly prohibited and in violation of this EULA. The KAPE Materials are not available to any users previously prevented from using the KAPE Materials by Kroll. If you use the KAPE Materials on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this EULA, and that you agree to this EULA on the entity’s behalf.
1.2 Limited License. The KAPE Materials are licensed, not sold, to you by Kroll and its licensors. Subject to the terms and conditions of this EULA, you are hereby granted a limited, nonexclusive, nontransferable, non-assignable, non-sublicensable, freely revocable license to (a) install and execute KAPE, in executable object code form only, solely on a system or device you own or control, and (b) use the KAPE Materials, including any use of the modules and targets included therein, in the case of each of (a) and (b), solely for your internal business use. You agree to use your best efforts to prevent and protect the contents of the KAPE Materials from unauthorized disclosure or use. Kroll and its licensors reserve all rights, including, but not limited to, ownership and intellectual property rights in and to the KAPE Materials and Kroll Content (as defined below), not expressly granted to you. Kroll’s licensors are the intended third-party beneficiaries of this EULA and have the express right to rely upon and directly enforce the terms set forth herein. Kroll may terminate this license at any time for any or no reason.
1.3 Limitation on Use. You may not use the KAPE Materials except as expressly permitted in this EULA. Except with Kroll’s prior written consent or as permitted by this EULA, you may not: (a) alter, modify or create any derivative works of KAPE (other than as expressly permitted in above license), the underlying source code, or the Documentation in any way, including, without limitation, customization, translation, or localization; (b) use the KAPE Materials for developing other software or services; (c) port, reverse compile, reverse assemble, reverse engineer, or otherwise attempt to separate any of the components of KAPE or derive the source code for KAPE (except to the extent applicable laws specifically prohibit such restriction); (d) copy, redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the KAPE Materials (or any portion thereof); (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in or on the KAPE Materials; (f) block, disable, or otherwise affect any links to other sites and services, or other features that constitute an integral part of KAPE; or (g) use the KAPE Materials (or any portion thereof) in violation of applicable local, state, national, and international laws, rules and regulations or any third-party rights, including, without limitation, privacy rights. You may not release the results of any performance or functional evaluation of the KAPE Materials (or any portion thereof) externally without the prior written approval of Kroll for each such release. You may not cause or permit any third party to do any of the foregoing.
1.4 Automatic Updates. Kroll may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of KAPE and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to each such Update. If you do not want an Update, your remedy is to stop using KAPE. If you do not cease using KAPE, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use KAPE and you agree to promptly install all Updates that Kroll makes available.
1.5 Third-Party Materials. You acknowledge the KAPE Materials may contain copyrighted software, documentation, content, or materials of Kroll's licensors which are obtained under a license from such licensors (“Third-Party Materials”). All third-party licensors retain all right, title and interest in and to such Third-Party Materials and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third-Party Materials will be subject to, and you will comply with, the terms and conditions of this EULA, and the applicable restrictions and other terms and conditions set forth in any Third-Party Materials, including, without limitation, any end user license agreements.
1.6 Open Source. Certain items of software included in KAPE are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
2. Proprietary Rights.
2.1 Ownership. The KAPE Materials, Third-Party Materials, and all materials therein or transferred thereby, including, without limitation, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and all intellectual property rights related thereto (collectively, the “Kroll Content”), are the exclusive property of Kroll and its licensors. Except as explicitly provided herein, nothing in this EULA will be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from the Kroll Content. Use of the Kroll Content for any purpose not expressly permitted by this EULA is strictly prohibited.
2.2 Feedback. You may choose to or we may invite you to submit comments or ideas about the KAPE Materials, including, without limitation, about how to improve the KAPE Materials or our other products or services (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Kroll under any fiduciary or other obligation, and that we are free to use the Feedback without any compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Kroll does not waive any rights to use similar or related ideas previously known to Kroll, or developed by its employees or contractors, or obtained from sources other than you.
3. No Support. This EULA does not entitle you to receive from Kroll or its licensors any support, telephone assistance, or enhancements or updates to the KAPE Materials.
4. Term and Termination. This EULA and the licenses granted hereunder are effective on the date you first use any of the KAPE Materials, and will continue for as long as you continue to use any of the KAPE Materials, unless this EULA is terminated under this section. Kroll may terminate this EULA and/or permanently or temporarily terminate or suspend your use of the KAPE Materials at any time without notice and liability, for any or no reason, including, without limitation, if we determine in our sole discretion that you violate any provision of this EULA. Upon termination of this EULA for any or no reason, the licenses granted hereunder by us will terminate, you must stop all use of the KAPE Materials, and you will otherwise continue to be bound by this EULA.
5. Indemnity. You agree to defend, indemnify and hold harmless Kroll and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, settlements, costs or debt, and expenses (including, but not limited to, attorney’s fees) arising from: (a) your use of the KAPE Materials, including, without limitation, any results obtained therefrom; (b) your violation of any term of this EULA; (c) your violation of any third-party right, including, without limitation, any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; or (e) your gross negligence or willful misconduct.
6. NO WARRANTY. THE KAPE MATERIALS ARE PROVIDED ON AN “AS IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS. USE OF THE KAPE MATERIALS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE KAPE MATERIALS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE, DATA OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KROLL OR THROUGH THE KAPE MATERIALS OR USE THEREOF WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, KROLL, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE KAPE MATERIALS OR ANY RESULTS OBTAINED THEREFROM ARE OR WILL BE ACCURATE, RELIABLE OR CORRECT; THAT THE KAPE MATERIALS OR ANY RESULTS OBTAINED THEREFROM WILL MEET YOUR REQUIREMENTS; THAT THE KAPE MATERIALS WILL BE TIMELY, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE KAPE MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE KAPE MATERIALS ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEM OR DEVICE OR LOSS OF OR CORRUPTION TO DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE KAPE MATERIALS.
7. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, KROLL, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS EULA, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF KROLL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE KAPE MATERIALS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KROLL ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY INTERRUPTION OR CESSATION OF THE KAPE MATERIALS; (II) ANY BUGS, VIRUSES, OR OTHER HARMFUL MATERIALS THAT MAY BE CONTAINED IN OR TRANSMITTED THROUGH THE KAPE MATERIALS; OR (III) ANY ERRORS, MISTAKES, INACCURACIES, OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF THE KAPE MATERIALS. IN NO EVENT SHALL KROLL, ITS AFFILIATES, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AGGREGATE AMOUNT EXCEEDING USD $100.00.
8. LEGAL LIMITATIONS. FEDERAL LAW, SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES AND DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS EULA WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this EULA will cause Kroll irreparable damage for which recovery of money damages would be inadequate and that Kroll therefore may obtain timely injunctive relief to protect its rights under this EULA in addition to any and all other remedies available at law or in equity.
11. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
11.1 Governing Law. This EULA will be governed by the internal substantive laws of the State of New York without respect to its conflict of laws principles. The parties acknowledge that this EULA evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this EULA will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
11.2 Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM KROLL. For any dispute with Kroll, you agree to first contact [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Kroll has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this EULA, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York County, New York, unless you and Kroll agree otherwise. If you are an individual using the KAPE Materials for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section will be deemed as preventing Kroll from seeking injunctive or other equitable relief from the courts as described in the Injunctive Relief provision above.
11.3 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES SUBJCT TO THIS EULA, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND KROLL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12.1 Export Controls. The KAPE Materials and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to any person or entity on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. federal government list of persons or entities that have been sanctioned or penalized under economic sanctions or export control requirements. By downloading or using the KAPE Materials you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you agree to comply with all export laws and other applicable laws.
12.2 U.S. Government End Users. The KAPE Materials each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101. The KAPE Materials consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the KAPE Materials that are specifically provided by this EULA. Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this EULA.
12.3 Assignment. This EULA, and any and all rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kroll without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
12.4 Notification Procedures and Changes to this EULA. Kroll may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Kroll in our sole discretion. Kroll reserves the right to determine the form and means of providing notifications to our users. Kroll is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Kroll may, in its sole discretion, modify or update this EULA from time to time, and so you should review this EULA periodically. When we change this EULA in a material manner, we will update the “last modified” date at the bottom of the web https://learn.duffandphelps.com/kape-license-agreement and notify you that material changes have been made to this EULA. Your continued use of the KAPE Materials after any such change constitutes your acceptance of the new EULA. If you do not agree to any of these terms or any future terms of this EULA, do not use or continue to use the KAPE Materials.
12.5 No Waiver. No waiver of any term of this EULA will be deemed a further or continuing waiver of such term or any other term, and Kroll’s failure to assert any right or provision under this EULA will not constitute a waiver of such right or provision.
12.6 Entire Agreement; Severability. This EULA, together with any and all amendments and any and all additional agreements you may enter into with Kroll in connection with the KAPE Materials, will constitute the entire agreement between you and Kroll concerning the KAPE Materials. If any provision of this EULA is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement will be unenforceable.
12.7 Contact. Please contact us at [email protected] with any questions regarding this EULA.
Last modified: February 15th, 2019