Terms and Conditions

Copyright © 2006-2013. Bit9, Inc. 266 Second Ave, Waltham, MA 02451. All rights reserved.

Acceptance of Terms

The services and/or materials Bit9 provides to you in connection with this web site (“Site”) are subject to the following Terms of Use (“Terms”). By accessing, using, or registering for this Site, you agree to follow and be bound by these Terms. IF YOU DO NOT ACCEPT ALL OF THESE TERMS, DO NOT USE THIS SITE.

Description of Services

Bit9 may provide you with access to a variety of resources, materials, and downloads, including business, educational, and technical news and information (collectively, “Services”). The Services, including any updates and enhancements, are subject to the Terms.

Materials Available Pursuant to the Site

Subject to the Terms, Bit9 authorizes you to view and use the information and materials obtained from this Site directly or sent by Bit9 via email or post pursuant to a request by you via the Site (collectively, “Materials”), provided that: (1) retain all copyright and other proprietary notices contained in the original Materials on any copies of the Materials; and (2) your use of the Materials is subject to the Limitation of Use restrictions set forth above.

The origins of such materials may be internal or external to Bit9. While third-party Materials are believed to be reliable, such third-party Materials has not been independently authenticated, tested, or verified in whole or in part by Bit9. All Materials provided on Bit9 websites, including any material from third parties, is “as is,” and Bit9 makes no express or implied claims, representations or warranties as to its accuracy, validity, or veracity. Bit9 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.

Limitation on Use

Unless otherwise specified in the Terms and/or the Bit9 License Agreement, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, or create derivative works from, transfer, or sell any information, products or services obtained from the Services or Materials. If you breach any of these Terms, your authorization to use this Site automatically terminates and you must immediately destroy any materials in your possession obtained from the Site (including Materials requested pursuant to the Site and sent by Bit9 via email or post).

Confidentiality

You may obtain direct access via the Site to certain confidential information of Bit9 and its suppliers, including without limitation technical, contractual, product, program, pricing, marketing, and other valuable information that should reasonably be understood as confidential (“Confidential Information”). You must hold Confidential Information in strict confidence. Title to Confidential Information remains with Bit9 and its suppliers.

Your obligations regarding Confidential Information expire five (5) years after the date of disclosure. Upon termination of the Terms or Bit9′s written request, you must cease use of Confidential Information and return or destroy it. The Terms impose no obligation upon you with respect to Confidential Information that you can establish by legally sufficient evidence: (a) You possessed prior to your receipt from Bit9, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of the Terms; (c) You obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) You independently developed without the use of Confidential Information and without the participation of individuals who have had access to it, or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under these Terms and as disclosed after prior notice to Bit9 adequate to afford Bit9 the opportunity to object to the disclosure.

Policy on Privacy

Please see the Privacy Policy disclosures relating to the collection and use of your information. By using the Site, you are consenting to the processing of your data by Bit9 and consenting to our Privacy Policy.

User Information

When using this Site, you agree to be responsible for providing accurate and complete information about yourself during registration (“Your Data”), and updating Your Data to keep it current. You are entirely responsible for maintaining the confidentiality of your username and password. Furthermore, you are entirely responsible for any and all activities that occur under your account. At our sole discretion, we may terminate the accounts or access rights of users who may have provided inaccurate or incomplete information during registration.

Links To Other Web Sites

Links to third-party web sites on this Site are provided solely as a convenience to you. If you use these links, you will leave this Site. We have not reviewed these third-party sites and do not control and are not responsible for any of these sites or their content. We do not endorse or make any representations about them, or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third-party sites linked to this Site, you do this entirely at your own risk.

Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL BIT9, ITS SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE LICENSORS (IF ANY), OR ITS SUPPLIERS, OR OTHER THIRD PARTIES MENTIONED AT THIS SITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNATIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS SITE, ANY WEB SITES LINKED TO THIS SITE, OR THE SOFTWARE, MATERIALS OR SERVICES CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE MATERIALS , SOFTWARE OR SERVICES FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

This site is controlled and operated by Bit9 from its offices in the United States of America. Bit9 makes no representation that materials or services at this Site are appropriate or available for use outside the United States, and access to them from territories where their contents are illegal is prohibited.

Indemnity

You agree to indemnify and hold Bit9 and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, suppliers, alliance members, other partners, employees and representatives harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your Submission, Your use of or connection to the Site (including any use by You on behalf of Your employer), Your violation of the Terms, or Your violation of any rights of another.

Jurisdiction and Venue

These Terms are to be governed and construed by the substantive law of the Commonwealth of Massachusetts. In the event of a dispute arising out of or relating to these terms and conditions, or your use of or access to this Site, litigation must be brought in state or federal court in the Commonwealth of Massachusetts.

Waiver

The failure of Bit9 to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If a court of competent jurisdiction finds any provision of the Terms to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. Notwithstanding the foregoing, any Software downloaded from this site is governed separately by the Bit9 License Agreement.

Trademarks

“Bit9 Trademarks” means all names, marks, brands, logos, designs, trade dress, slogans, and other designations Bit9 uses in connection with its products and services. You agree to comply with the Bit9 Trademark and Logo Usage Requirements. You may not remove or alter any Bit9 Trademarks, or co-brand your own products or material with Bit9 Trademarks, without Bit9′s prior written consent. You acknowledge Bit9′s rights in Bit9 Trademarks and agree that any use of Bit9 Trademarks by You shall inure to Bit9′s sole benefit. You agree not to incorporate any Bit9 Trademarks into Your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies.

The names of actual companies and products mentioned on the Site or in the Materials may be the trademarks of their respective owners.

General

Bit9 may update these terms at any time without notice by updating this posting. You should visit this page from time to time to review the then-current Terms because they are binding on you. If you have comments or questions about our privacy policy, please contact us contact@bit9.com We will address any issue to the best of our ability.

BIT9, INC. TRUST ASSESSMENT TOOL LICENSE AGREEMENT

This is a License Agreement (the “Agreement”) for the Bit9 Trust Assessment Tool (as further defined below) owned by Bit9, Inc. (“Bit9”).  Please read this Agreement. By utilizing the Bit9 Trust Assessment Tool, You agree to these terms. If You do not agree to the terms of this Agreement, You may not install, access or utilize the Bit9 Trust Assessment Tool for any purpose.

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 using the Bit9 Trust Assessment Tool.

“Licensed Materials” means the Bit9 Trust Assessment Tool and all associated written or electronic documentation and reports (“Documentation”) that is provided by Bit9 to You for use in conjunction with the operation of the Bit9 Trust Assessment Tool.  The information delivered to You by the Bit9 Trust Assessment Tool 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.

“Bit9 Trust Assessment Tool” means the client and web-based software provided by Bit9 through Bit9’s application hosted at www.bit9.com/forms/trust-assessment/.

2.   License; Restrictions.  You are granted, for Your internal use only, a non-exclusive, non-transferable license, without right to sublicense, to (a) access and use the Bit9 Trust Assessment Tool to understand the nature of executable files on one (1) computer; and (b) use the Documentation. 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 the Bit9 Trust Assessment Tool 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.

3.   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.

4.   Disclaimer.  Notwithstanding any other provision of this Agreement, the information provided by the Bit9 Trust Assessment Tool 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, THE BIT9 TRUST ASSESSMENT TOOL 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.  FURTHER, NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES PROVIDED BY BIT9, OR ANY INFORMATION, CONTENT, OR DATA CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, THE BIT9 TRUST ASSESSMENT TOOL, WHETHER MADE BY BIT9 EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY BIT9 FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF BIT9 WHATSOEVER.

5.   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 LICENSED MATERIALS, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO CIRCUMSTANCE EXCEED $100.00.

6.   Termination. You understand and acknowledge that Your use of the Bit9 Trust Assessment Tool is a one-time use only, and shall terminate immediately upon delivery to You of the report generated by the Bit9 Trust Assessment Tool with respect to the particular executable scanned, as requested by You.  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.

7.  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 and conditions 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, the Bit9 Trust Assessment Tool may collect certain executable file information, such as file name and file path.  However, no personally identifiable information is collected by the Bit9 Trust Assessment Tool. 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.

8.   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.

9.   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 Bit9 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.

(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.