MALWARE SAMPLES AGREEMENT

 This Malware Samples Agreement (“Agreement”) is entered into by and between Minerva Labs Ltd. (“Minerva”) and you (“User”).  This Agreement concerns User’s desire to access and use samples of malicious software (“Malware Samples”) for the sole purpose of evaluating Minerva security products (“Purpose”).

BY ACCEPTING THIS AGREEMENT, USER CONFIRMS THAT USER HAS READ THIS AGREEMENT, AND USER ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1.        Account and Registration.

1.1     User may not use the Malware Samples and may not accept this Agreement if (a) User is an individual, and User is not of legal age to form a binding contract with Minerva, or (b) User is barred from using or receiving the Malware Samples under the applicable laws of the United States or other countries including the country in which User is resident or from which User use the Malware Samples.

1.2     If User is using the Malware Samples on behalf of an entity, User represents and warrants that User has authority to bind that entity to the Agreement and by accepting the Agreement, User is doing so on behalf of that entity (and all references to “User” in the Agreement refer to that entity).

1.3     In order to access the Malware Samples, User will be required to provide certain information (such as identification or contact details) as part of the registration process for the Malware Samples, or as part of User’s continued use of the Malware Samples.  Any registration information User give to Minerva will always be accurate and up to date, and User shall inform Minerva promptly of any updates.

1.4     Minerva will assign User access credentials to access the Malware Samples.  The access credentials are personal to User and should not be shared with any third parties.  User is responsible for safeguarding its access credentials and for any actions taken using such access credentials.

2.        Use of Malware Samples. 

2.1     Subject to the terms and conditions of this Agreement, User may access, download and use the Malware Samples solely for the Purpose during the 30-day period immediate after the date on which User clicks the “ACCEPT” button, except that Minerva may, at its sole discretion, terminate or extend User’s authorization to access, download and use the Malware Samples at any time.  User may only use the Malware Samples for the Purpose and for no other purpose.

2.2     Minerva makes available to User certain written materials with suggestions on how to use the Malware Samples for the Purpose (the “Manual”). Minerva does not represent or warrant that the Manual provides adequate or complete guidance or instruction on the safe handling of the Malware Samples.  Minerva assumes no responsibility, and shall not be liable, for any action or inaction taken in reliance on the Manual.

2.3     User shall comply with all applicable laws and regulations in connection with its use of Malware Samples.  User may not use the Malware Samples for any unlawful, illicit, unethical or fraudulent purposes.  User may not allow any third party to access the Malware Samples or provide any third party with any Malware Samples, and User may not allow any Malware Samples to infect, disrupt, disable, harm or otherwise impede any software, hardware or device (including any computer, tablet computer, handheld device, disk or storage device) of any third party.

2.4     User understands and acknowledges that the Malware Samples are collected from malicious sources and may contain “back doors,” “drop dead devices,” “time bombs,” “Trojan horses,” “viruses” and “worms” (as such terms are commonly understood in the software industry) and other code designed or intended to have, or capable of performing or that without user intent will cause, any or all of the following functions: (i) disrupting, disabling, harming or otherwise impeding the operation of, or providing unauthorized access to, any software, hardware or device (including any computer, tablet computer, handheld device, disk or storage device) that is infected, managed or otherwise operated by such Malware Samples, or on which such Malware Samples are stored or installed; (ii) damaging or destroying data and files without the user’s consent; or (iii) sending information to third parties without the user’s consent.  Furthermore, User understands and acknowledges that Malware Samples (A) may contain “malware”, “spyware”, “ransomware” or “trackware” (as such terms are commonly understood in the software industry), (B) may record a user’s actions without such user’s knowledge or (C) may employ a user’s Internet connection without such user’s knowledge to gather or transmit information on such user or such user’s behavior.  User consents to and assumes the risks of the activities described in this section, and any and all consequences of use of the Malware Samples by User, including any analysis and any associated transmission of data, is deemed authorized by User.

3.        Warranty Disclaimer.  THE MALWARE SAMPLES ARE PROVIDED TO USER SOLELY FOR THE PURPOSE OF EVALUATION ON AN ‘AS IS’ AND ‘WITH ALL FAULTS’ BASIS.  THE MALWARE SAMPLES ARE BEING PROVIDED FOR USER’S USE IN A COMPLETELY ISOLATED TEST ENVIRONMENT.  USER ASSUMES ALL RISKS RELATED TO ITS ACCESS, DOWNLOAD AND USE OF THE MALWARE SAMPLES, AND MINERVA DISCLAIMS ALL LIABILITIES WHATSOEVER ARISING OUT OF USER’S ACCESS, DOWNLOAD AND USE OF MALWARE SAMPLES, INCLUDING, BUT NOT LIMITED TO, FAILURE TO PROPERLY CONFIGURE A TEST ENVIRONMENT, FAILURE TO USE THE MALWARE SAMPLES IN A PROPERLY CONFIGURED TEST ENVIRONMENT, AND INTENTIONAL MISUSE OF THE MALWARE SAMPLES.  MINERVA HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND THOSE ARISING FROM COURSE OF DEALING, USAGE OR TRADE.  MINERVA IS NOT LIABLE FOR ANY LOSSES OR DAMAGES CAUSED BY OR DUE TO USER’S ACCESS TO OR USE OF THE MALWARE SAMPLES.  MINERVA DISCLAIMS ANY INDEMNIFICATION OBLIGATION WITH RESPECT TO THE MALWARE SAMPLES.

4.        Indemnification.  User shall indemnify and hold harmless Minerva, and its affiliates, directors, officers, and employees, against any and all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation, claim or legal proceeding arising out of or relating to: (i) User’s breach of the Agreement or (ii) User’s access to or use of the Malware Samples.

5.        Limitation of Liability.

5.1                 IN NO EVENT SHALL MINERVA’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED FIFTY DOLLARS ($50), NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

5.2                 IN NO EVENT WILL Minerva HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, EVEN IF Minerva HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

6.        Publicity.  User may not make any statement regarding its use of the Malware Samples which suggests partnership with, sponsorship by, or endorsement by Minerva without Minerva’s prior written approval.

7.        Termination. 

7.1     User may stop using the Malware Samples at any time with or without notice.  Further, if User want to terminate the Agreement, User must provide Minerva with prior written notice and upon termination, cease User’s use of the Malware Samples.  Minerva reserves the right to terminate this Agreement or discontinue User’s access to the Malware for any reason and at any time without liability or other obligation to User.

7.2     Upon any termination of the Agreement or discontinuation of User’s access to the Malware Samples, User shall immediately stop using the Malware Samples, and User shall cause all copies of Malware Samples downloaded by User to be deleted and agree to certify to such deletion if requested by Minerva. 

7.3     The termination or expiration of this Agreement for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the provisions concerning, limitation on liability, indemnity and the warranty disclaimers).

8.        General. 

8.1             Modification.  Minerva may modify the Agreement or any portion to, for example, reflect changes to the law or changes to the Malware Samples.  Minerva will post notice of modifications to the Agreement to this website.  If User does not agree to the modified Agreement for the Malware Samples, User should discontinue its use of the Malware Samples.

8.2                 Force Majeure.  Minerva is not liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control. 

8.3                 Governing Law and Jurisdiction.  This Agreement is governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.  Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.  Notwithstanding the above, nothing in this Agreement shall be deemed as preventing Minerva from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as necessary to protect a Minerva’s name, proprietary information, trade secrets, know-how, or any other intellectual property or proprietary rights.  In any action to enforce this Agreement, the prevailing party will be awarded all court and arbitration costs and reasonable attorneys’ fees incurred, including all costs and attorneys’ fees incurred in enforcing and collecting any judgment and on appeal.

8.4                 Assignment.  User shall not, voluntarily, by operation of law, or otherwise, assign its rights under this Agreement or delegate any performance without the prior written consent of Minerva, and any attempt to assign or delegate in violation of the foregoing is void. Subject to the foregoing, this Agreement is binding on, and will inure to the benefit of, the parties of this Agreement and their respective successors and permitted assigns.

8.5                 Severability.  If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision will be amended to achieve as closely as possible the economic effect of the original provision and all other provisions shall continue in full force and effect.

8.6                 Waiver.  No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by a party to, or waiver of, a breach by the other party, whether express or implied, shall constitute that party’s consent to, waiver of, or excuse of any other, different, or subsequent breach by the other party.

8.7                 Entire Agreement.  This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, with respect to such subject matter.

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