BIT9, INC. PARITY™
KNOWLEDGE SERVICE LICENSE AGREEMENT
This
is a License Agreement (the "Agreement") for the Bit9 Parity
Knowledge Service (as further defined below) owned by Bit9, Inc. (“Bit9”). Please read this Agreement. By enabling Your users to access and utilize the Bit9 Parity Knowledge
Service, You agree to these terms. If You do not agree
to the terms of this Agreement, You may not, nor allow others to, install,
access or utilize the Bit9 Parity Knowledge Service for any purpose. If the Licensed Materials have been provided
to You for evaluation purposes (“Evaluation
Materials”), the terms and conditions set forth below shall apply unless
specific alternative terms are set forth for the Evaluation Materials.
1. Definitions. In this Agreement, the following
definitions shall apply (in addition to those set forth in the body of this
Agreement):
“You” or
“Your” means the party purchasing
the Bit9 Parity
Knowledge Service subscription.
“Initial
Term” means the initial subscription term specified in the Order. Upon the conclusion of the Initial Term, this
Agreement may be renewed for successive periods.
“Licensed
Materials” means the Parity Knowledge Service and all associated written or electronic
documentation (“Documentation”) that is provided by Bit9 to You
for use in conjunction with the operation of the Parity Knowledge Service. The information delivered to You by the Parity Knowledge Service may be internally
generated by Bit9 or externally gathered from third-parties and while such
information is believed to be reliable, such third-party information may not
have been independently authenticated, tested, or verified in whole or in part.
“Order”
means an order by You for a subscription license to the
Parity Knowledge
Service.
“Parity Knowledge Service”
means the web-based software identification and information service for Windows
computers provided by Bit9 through Bit9’s Parity product (“Parity”) or directly
through Bit9’s website located at http://www.bit9.com and related websites (the
“Website”).
2. Orders; Fees. You shall place Orders
directly with Bit9 or as directed by Bit9.
No Order will be binding unless acknowledged and accepted in writing or
by e-mail by Bit9. The fees for licensing
the Licensed Material shall be set forth in the Order (the “Fees”), and do not
include taxes. You assume the obligation for and shall pay when due all present
and future taxes, excluding any taxes on or measured by Bit9’s net income. All
Fees are payable net thirty (30) days from the date of invoice, in U.S. dollars
only.
3. License; Restrictions.
In consideration of Your payment to Bit9 of the Fees, You are granted
(for the Term specified in the Order), for Your internal use only, a non‑exclusive,
non-transferable license, without right to sublicense, to (a) allow the number
of named users specified in the Order access and use of Parity Knowledge
Service; and (b) use the Documentation. Named users shall not be reassigned by You, to different individuals, except in the event of a job
change or termination of employment of such named user. All Licensed Materials
under this Agreement are licensed and not sold and shall remain, the sole and
exclusive property of Bit9. Bit9
reserves all other rights to the licensed Materials and all intellectual property
relating thereto not specifically licensed in this Agreement. You shall not sell, transfer, rent, copy,
duplicate, reverse engineer, reverse compile, modify or create derivative works
of, tamper with or grant any rights in Licensed Materials, nor may you use Parity
Knowledge Service to conduct a service bureau or similar business for the
benefit of third parties. You agree to display of any copyright and trademark
notices incorporated by Bit9.
If You are using the FileAdvisor™ version of
Parity Knowledge Service, either party may terminate Parity Knowledge Service
with notice to the other party. For
other licensees of Parity Knowledge Service, the license shall terminate at the
end of the term set forth in an applicable Order, unless otherwise terminated
as set forth herein. In addition, any Bit9 software that may be downloaded by
You or provided to You by Bit9 in connection with Your use of Parity Knowledge
Service, including, without limitation, (i) Parity; and (ii) any patch, update,
upgrade, modification or other enhancement provided by Bit9 with respect to
such software, is licensed subject to the terms and conditions of the user
agreement for such software (the “License Agreement”). Your Parity license serves as Your
Registration to the extent it so indicates.
If the Licensed Materials have been provided to You as
Evaluation Materials, such use shall be (a) limited to thirty (30) days from
delivery (the “Evaluation Period”), and (b) Evaluation Materials may be used
solely for Your internal evaluation of the suitability of the Evaluation
Materials and in no event for production use. In addition, promptly upon
expiration of the Evaluation Period, You shall destroy all information obtained
from use of the Evaluation Materials and all related. At Bit9’s request, You
will certify the destruction and return of the Evaluation Materials,
information and related materials.
You shall
defend, indemnify and hold harmless Bit9 from all claims, damages, and losses,
howsoever arising and whether direct, indirect, or consequential, including all
legal fees and expenses, arising from claims brought by any third party
relating to Your use of the Evaluation Materials.
4. Ownership. Unless otherwise agreed to in writing by
Bit9, all written materials, including programs, files, specifications and
documentation and any work product, patents, information, inventions or
copyrightable material that are produced by Bit9 or any of its employees or
consultants during the course of its performance hereunder or results from the
performance of any services by Bit9 shall be the sole property of Bit9. You are
granted a license to use such material to the extent necessary to obtain the
benefits contemplated by the license granted by this Agreement.
5. Warranties; Disclaimer. Bit9
warrants that for the Initial Term (“Warranty
Period”), the Parity Knowledge Service will conform in all material
respects to the applicable specifications. If Parity Knowledge Service does not
meet Bit9’s warranty during the Warranty Period, Bit9 will (at its option), as Your
sole and exclusive remedy, (a) repair, replace or modify Parity Knowledge
Service so it will comply with the applicable warranty, or (b) refund the Fee for
Parity Knowledge Service on a pro rata basis within thirty (30) calendar days
of the termination of the respective license. Bit9
warranties are for the benefit of You only
and are void if Parity Knowledge Service is used in violation of the applicable
Documentation or Bit9’s instructions.
Notwithstanding any other provision of this Agreement, the information
provided by Parity Knowledge Service is provided on an “as is” basis only.
THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS AND
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, ERROR FREE OPERATION OR NON-INTRUSION DUE TO
HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS. IN ADDITION, PARITY KNOWLEDGE SERVICE MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS. BIT9 IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM
SUCH PROBLEMS.
NOTWITHSTANDING THE GENERALITY
OF THE FOREGOING, HOWEVER, EVALUATION MATERIALS ARE PROVIDED “AS IS” ONLY,
WITHOUT WARRANTIES OF ANY KIND.
6. Limitation of Liability.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BIT9 OR ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SHAREHOLDERS OR CONTRACTORS (“RELATED PARTIES”) BE LIABLE TO YOU FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING
BUT NOT LIMITED TO LOST REVENUES, PROFITS OR DATA OR OTHER ECONOMIC LOSS)
REGARDLESS OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH
DAMAGES. IN ADDITION, THE MAXIMUM
LIABILITY OF BIT9 AND ITS RELATED PARTIES, TAKEN AS A WHOLE, FOR ANY AND ALL
CLAIMS IN CONNECTION WITH THIS AGREEMENT AND THE LICENSE MATERIALS, REGARDLESS
OF THE FORM OF ACTION, SHALL IN NO CIRCUMSTANCE EXCEED THE FEES PAID TO BIT9
FOR THE LICENSED MATERIALS GIVING RISE TO THE LIABILITY, OR, FOR EVALUATION MATERIALS,
$100.00.
7. Termination. Either party may
immediately terminate the Order if the other party: (a) fails to cure a
material breach of these terms and conditions (provided such breach is capable
of cure) within thirty (30) calendar days after its receipt of written notice
regarding such breach; (b) becomes insolvent or commits an affirmative act of
insolvency or makes an assignment for the benefit of creditors or takes similar
action; (c) files a voluntary bankruptcy or similar petition or acquiesces to
any involuntary bankruptcy or similar petition which is not dismissed within
ninety (90) days; or (d) is adjudicated bankrupt or to similar effect. In the event of such termination, the
non-defaulting party shall have no liability to the defaulting party in
connection herewith, except that You shall pay Bit9
the Fees due pro rata based on the term of the applicable Order(s). All provisions of this Agreement that
reasonably may be interpreted or construed as surviving termination of this
Agreement shall survive the termination of this Agreement.
8. Confidentiality; Privacy. As used in this
Agreement, "Confidential Information" means all information of either
party that is not generally known to the public, whether of a technical,
business or other nature (including, without limitation, trade secrets,
know-how and information relating to the technology, strategic partners,
customers, business plans, promotional and marketing activities, finances and
other business affairs of such party), that is disclosed by one party to the
other party or that is otherwise learned by the receiving party in the course
of its discussions or business dealings with the disclosing party. Confidential Information of Bit9 also
includes the terms, conditions and pricing of this Agreement. The obligations
of either party herein shall not extend to any information that recipient can
demonstrate through written documentation was already known to the recipient
prior to its disclosure to the recipient, was or becomes known or generally
available to the public (other than by act of the recipient), is disclosed or
made available in writing to the recipient by a third party having a bona fide right
to do so, is independently developed by recipient without the use of any
Confidential Information, or is required to be disclosed by process of law,
provided that the recipient shall notify the disclosing party promptly upon any
request or demand for such disclosure. Further, in order to identify and provide
information about software, Parity Knowledge Service may collect certain file
information, such as file name and path name, status information regarding
computers at different security levels and connection status, and server
configuration information during Your use of Parity
Knowledge Service. No end-user identifiable or computer identifiable
information is collected by Parity Knowledge Service at any time. Bit9 takes
its privacy obligations seriously. Bit9
takes comprehensive measures to safeguard Your
information from unauthorized access, in accordance with Bit9’s privacy policy (found
at www.bit9.com/privacy) (the
“Privacy Policy”). You hereby consent to the processing of Your
information in accordance with the Privacy Policy.
9. Amendment. This Agreement may be
changed only in writing signed by Bit9 and You, and no effect shall be given to
terms set forth in any purchase order, confirmation or similar document
provided by You to Bit9.
10. Miscellaneous.
(a) You agree
that You will not use, distribute, transfer, or
transmit the Licensed Materials or Confidential Information in violation of
U.S. export regulations.
(b) This
Agreement shall be governed by the laws of the Commonwealth of Massachusetts,
U.S.A., excluding (i) its conflicts of laws principles; (ii) the United Nations
Convention on Contracts for the International Sale of Goods; and (iii) the
Uniform Computer Information Transactions Act (UCITA) as adopted by any state.
(c) Neither party
may assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the other party (which consent
shall not be unreasonably withheld), except either party may assign its rights
or delegate its duties under this Agreement to the surviving entity in a merger
or consolidation or to a purchaser of all or substantially all the assets of
its business. Any assignment or delegation in contravention of this provision
shall be null and void. All the terms
and provisions of this Agreement will be binding upon and inure to the benefit
of and be enforceable by the parties and their respective successors and
permitted assigns. Nothing in the
foregoing shall be deemed to prevent Bit9 from using subcontractors in meeting
its obligations hereunder.
(d) The failure
by either party hereto at any time to require performance by the other party or
to claim a breach of any provision of this Agreement shall not be construed as
affecting any subsequent right to require the performance or to claim a breach
with respect thereto.
(e) The
provisions of this Agreement shall not be construed to establish any form of
partnership, agency or other joint venture of any kind between You and Bit9, or to constitute either party as the agent,
employee or legal representative of the other.
(f) If the
performance by a party of any of its obligations under this Agreement (other
than payment obligations) shall be interfered with by reason of any
circumstances beyond the reasonable control of that party, including without
limitation, fire, explosion, acts of God, war, revolution, terrorism, civil
commotion, unavailability of supplies, or sources of energy or
telecommunications, power failure, breakdown of machinery, labor strikes,
slowdowns, picketing or boycotts, or governmental/administrative restrictions
on the importation or exportation of products, then that party shall be excused
from such performance while such circumstances exist.
(g) Any provision
of this Agreement that is unenforceable shall not cause any other remaining
provision to be ineffective or invalid.
(h) In the event
a dispute between the parties hereunder with respect to this Agreement, the
prevailing party shall be entitled to receive reimbursement for all associated
reasonable costs and expenses (including, without limitation, attorneys’ fees).
(i) The Licensed
Materials are "commercial computer software" or "commercial
computer software documentation." Absent a written agreement to the
contrary, the U.S. Government's rights with respect to such Licensed Materials
are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or
DFARS § 227.7202-1(a), as applicable.