BIT9 USER AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. IT GOVERNS YOUR ACCESS TO AND USE OF THE BIT9 WEB-BASED FILE IDENTIFICATION AND INFORMATION SERVICE (the, “SERVICE”).
BY SELECTING “I ACCEPT,” BY USING THE SERVICE, BY ACCESSING THE WEBSITE OR BY INSTALLING THE SOFTWARE, YOU AGREE TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, YOU MUST PROMPTLY (A) DELETE THE SOFTWARE FROM ANY AND ALL OF YOUR COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION AND ALL ACCOMPANYING MATERIALS, AND (B) CEASE ALL OF USE OF SERVICE INCLUDING ACCESSING THE WEBSITE.
The Service is web-based file identification and information service provided by Bit9 Inc. (“Bit9” “we,” or “us”) through its Bit9 Parity product (the “Parity Product”), the Bit9 “Right-click” utility (the “Utility”) or directly through its website located at http://www.bit9.com and related websites (the “Website”). Any software that maybe downloaded by you in connection with the Service including the Utility is referred to herein as the “Software,” including any patch, update, upgrade, modification or other enhancement provided by us with respect thereto. The origins of materials (including file identification information) that you receive as a result of using the Service (the “Material”) may be internally or externally generated. While third-party Materials are believed to be reliable, such third-party Materials may not have been independently authenticated, tested, or verified in whole or in part by us. All Materials, including any Material from third parties, is "AS-IS," and we make no express or implied claims, representations or warranties as to its accuracy, validity, or veracity. We shall not be liable, in any way, for your use of these Materials, any results that may occur from such use, or any consequences from decisions made in reliance on these Materials.
The Service is licensed, not sold. The limitations of this Agreement and your registration for the Service (the “Registration”) apply to all versions of the Service that you access or use and govern your use of the Service, the Software and the Website. Your use of the Parity Product is governed by your Parity Product license. Your Parity Product License serves as your Registration to the extent it so indicates. You are only licensed to use the version of the Service and Software that you have received from us, the Website or one of our authorized resellers or distributors and have paid for (to the extent required), and must use the Software and Service strictly in accordance with this Agreement and any guidelines on the Website. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity.
We reserve the right, in our sole discretion, to modify the terms and conditions of this Agreement, and use of the Service including, without limitation, our privacy policy and our right to charge for the use of the Service, at any time, effective upon making the modified provisions available on the Website. You are responsible for regularly reviewing these terms and conditions. Continued use of the Service after any changes to this Agreement shall constitute your consent to such changes. We assume no obligation to notify you of any changes to the terms and conditions of this Agreement.
Utility Users: Provided that you fully comply with this Agreement, we hereby grant to you, subject to the terms and conditions of this Agreement, a nonexclusive, non-transferable right and license to (a) use the Service as specified in your Registration solely for your internal business purposes and (b) install the Software as specified in your Registration for the sole purpose of permitting you to access and use the Service. You may not make the Service or the Software available other than as specified in such Registration.
Website Users: Provided that you fully comply with this Agreement, we hereby grant to you, subject to the terms and conditions of this Agreement, a nonexclusive, non-transferable right and license to use the Service solely for your internal business purposes.
You may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Service, the Website, the Software the Materials by any means or in any form, without our prior written consent. You may not use the Service to conduct a service bureau or similar business for the benefit of third parties. You may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software to human readable form.
THE SERVICE, THE WEBSITE, THE SOFTWARE THE MATERIALS ARE PROVIDED ON AN AS IS BASIS ONLY. EXCEPT AS STATED ABOVE, WE AND OUR SUPPLIERS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THIS SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY MATERIAL. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
The Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems.
WE AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, EVEN IF WE OR ITS SUPPLIERS ARE ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE AND OUR SUPPLIER’S AGGREGATE LIABILITY EXCEED THE AMOUNT YOU HAVE PAID FOR THE SERVICE DURING THE PRECEDING 12 MONTHS.
Please see the Privacy Policy disclosures (www.bit9.com/privacy) relating to the collection and use of your information. We may collect certain information which is not personally identifiable such as filename and pathname. By using the Service, you are consenting to the processing of your data by us and consenting to our Privacy Policy.
In the event you export the
Software or the Service from the country in which you first received it, you
assume the responsibility for compliance with all applicable export and
re-export regulations, as the case may be, including but not limited to, any
regulations of the Office of Export Administration of the U.S. Department of
Commerce, the United States Department of Treasury Office of Foreign Assets
Control, and other U.S. agencies and the export control regulations of the
European Union. You acknowledge and agree that the Service shall not be used,
and none of the underlying information, software, or technology may be
transferred or otherwise exported or re-exported to countries as to which the
United States and/or the European Union maintains an embargo (collectively,
"Embargoed Countries"), or to or by a national or resident thereof,
or any person or entity on the U.S. Department of Treasury's List of Specially
Designated Nationals or the U.S. Department of Commerce's Table of Denial
Orders (collectively, "Designated Nationals"). The lists of
Embargoed Countries and Designated Nationals are subject to change without
notice. By using the Service, you represent and warrant that you are not
located in, under the control of, or a national or resident of an Embargoed
Country or Designated National. You agree to comply strictly with all applicable
laws and assume sole responsibility for obtaining licenses to export or re-export
as may be required.
The Software or the Service may use encryption technology that is subject to
licensing requirements under the U.S. Export Administration Regulations, 15
C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
We make no representation that the Service is appropriate or available for use
in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable
laws, including without limitation export and import regulations of other
countries. Any diversion or use of the Material contrary to United States law is prohibited..
The Software and the Service 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 Software or the Service are limited by the terms of this Agreement, pursuant to FAR § 12.212(x) and/or DFARS § 227.7202-1(a), as applicable.
This Agreement shall be governed by, and any arbitration hereunder shall apply, the laws of the Commonwealth of Massachusetts, U.S.A., excluding (a) its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods, (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the "1974 Convention"); and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach hereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted by three (3) arbitrators, one to be appointed by us, one to be appointed by you and a third being nominated by the two arbitrators so selected or, if they cannot agree on a third arbitrator, by the President of the American Arbitration Association ("AAA"). The arbitration shall be conducted in English and in accordance with the commercial arbitration rules of the AAA. The arbitration, including the rendering of the award, shall take place in Boston, Massachusetts, and shall be the exclusive forum for resolving such dispute, controversy or claim. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction. Notwithstanding anything contained in this Paragraph to the contrary, we shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in order to enforce our rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
If you pay for the Service, this Agreement may not be assigned by you without our prior written approval but may be assigned without your consent by us. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in one of our direct competitors directly or indirectly owning or controlling 50% or more of you shall entitle us to terminate this Agreement for cause immediately upon written notice.
This Agreement constitutes the entire understanding between us and you with respect to subject matter hereof. Any change to this Agreement must be in writing, signed by us and you. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by us in writing. You shall be responsible for and shall pay, and shall reimburse us on request if we are required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on our net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Software or the Service.
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