End-User License and Service Agreement
BLUE COAT K9 WEB PROTECTION
IMPORTANT—READ CAREFULLY: This End-User License and Service Agreement (“Agreement”) is a legal agreement between Blue Coat Systems, Inc. (“Blue Coat”) and Licensee (either an individual or a single entity) as a user, for the use of the Blue Coat software product identified above, which includes computer software and may include associted media, printed materials, and “online” or electronic documentation (the “Product”) and the access to the Blue Coat content filtering service (the “Service”). BY SIGNING BELOW, YOU OR THE ENTITY OR ORGANIZATION THAT YOU REPRESENT ("LICENSEE") AND INSTALLING, COPYING, OR OTHERWISE USING THE BLUE COAT PRODUCT AND ACCESSING THE SERVICE, ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THE PRODUCT AND SERVICE ARE PROVIDED AT NO CHARGE IF YOU ARE AN INDIVIDUAL ACCESSING THE PRODUCT AND SERVICE FOR PERSONAL, HOME USE. IF YOU ARE A COMPANY ACCESSING THE PRODUCT AND SERVICE FOR BUSINESS USE, THEN ALL TERMS IN THE SECTION BELOW HEADED “PAID OPTION TERMS” WILL ALSO APPLY. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT OR ACCESS THE SERVICE. YOU MUST CANCEL YOUR SUBSCRIPTION TO THE SERVICE TO RECEIVE A REFUND OF ANY PREPAID FEES.
Blue Coat is only willing to grant Licensee the rights and licenses contained in this Agreement if Licensee obtained the Product from Blue Coat or a Blue Coat authorized distributor or reseller. If Licensee obtained the Product from any other source Licensee may not install or use the Product or access the Service.
1. Ownership. The Product is proprietary to Blue Coat. The Product is licensed, not sold, to Licensee notwithstanding any reference herein to “purchases”. Licensee acknowledge and agree that: (a) the Product is protected under U.S. copyright and other laws; (b) Blue Coat and its licensors retain all copyrights and other intellectual property rights in the Product; (c) there are no implied licenses under this Agreement, and any rights not expressly granted to Licensee hereunder are reserved by Blue Coat; (d) Licensee acquires no ownership or other interest (other than Licensee’s license rights) in or to the Product; and (e) Blue Coat owns all copies of the Product, however made. Licensee agrees that Licensee will not, at any time, contest anywhere in the world Blue Coat’s ownership of the Product, nor will Licensee challenge the validity of Blue Coat’s rights in the Product. Licensee has no rights hereunder to use any trademark or service mark belonging to Blue Coat.
2. Grant of License and Scope of Use. For each license to the Product that Licensee acquires, Blue Coat shall deliver Licensee a license key that sets forth the term of the license and number of users licensed to use, access and display the Product (“License Key”). Blue Coat hereby grants to Licensee a personal, nonexclusive license to install, use, access and display the Product for the term and for the number of users specified in the License Key. This Agreement defines Licensee’s rights to the Product during the license term.
3. Service and Restrictions. For the sole purpose of using the Product, Licensee is granted a limited non-exclusive non- transferable and royalty-free license to access the Service. Licensee may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. Licensee may not disclose or share Licensee’s password with any third parties or use Licensee’s password for any unauthorized purpose. The functionality of the Service depends, among other things, on the availability of internet connectivity, net congestion and other factors. Licensee may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction conducted on our site. Blue Coat makes no warranties or guarantees as to the availability or reliability of the Service or the information provided to Licensee or to any other user nor makes any commitment to provide Licensee an on-going operational Service.
5. Limitations. Licensee may not: (a) modify, adapt, alter, translate, or create derivative works of the Product or Service or merge the Product or Service with other software other than as described in the Product’s accompanying documentation or as approved of in writing by Blue Coat; (b) lease, rent or loan the Product or Service to any third party; (c) sublicense, distribute or otherwise transfer the Product or Service or any component thereof to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Product or Service; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Blue Coat and or its licensors on the Product or Service; (f) allow third parties to access or use the Product or Service such as in a time-sharing arrangement or operate the Product or Service as part of a service bureau or, otherwise for the use or benefit of third parties; (g) reproduce or use the Product or Service except as expressly authorized hereunder. The rights granted under this Agreement apply only to this Product. Licensee must procure a separate license to use other Blue Coat software.
6. Protection of Licensee computer. Licensee understands that the Blue Coat Product will use commercially reasonable efforts to protect the privacy and integrity of Licensee’s computer resources. However, Licensee acknowledges and agree that Blue Coat cannot give any warranties in this respect.
7. Links to Third Party Sites. Licensee may link to third party sites through the use of the Product and Service. The third party sites are not under the control of Blue Coat, and Blue Coat is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites.
8. Services; Updates; Product Changes. Licensee acknowledges and agrees that Blue Coat is not required under this Agreement to provide any installation, training or other support services to Licensee. Other services, including support for business or enterprise users, if available, must be purchased separately. If, pursuant to a separate support agreement or otherwise, Blue Coat provides Licensee with a new release, error correction, update, upgrade or other modification to the Product, such modification will be deemed part of the Product, and subject to the terms of this Agreement, unless the modification is expressly provided subject to a separate license agreement. Blue Coat reserves the right at any time not to release or to discontinue release of any Product or Service and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product.
9. Warranty Disclaimer. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, THE PRODUCT AND SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. BLUE COAT AND ITS LICENSORS HEREBY EXCLUDE AND DISCLAIM ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE PRODUCT OR SERVICE WILL FUNCTION WITHOUT LOSS OR ALTERATION OF DATA. THERE IS NO WARRANTY THAT THE PRODUCT OR SERVICE WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. TO THE EXTENT THAT BLUE COAT MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10. Confidentiality. The Product (including its underlying source code), the Service (and the database of URLs related to the Service) and the terms of this Agreement contain confidential information of Blue Coat. Licensee agree to hold this information in confidence, not disclose it to any person (other than Licensee employees and individual contractors who use the Product and who have agreed to keep confidential any of Blue Coat’s confidential information that Licensee provides to them), and not use it for any purpose other than the use and operation of the Product as permitted under this Agreement. These restrictions do not apply to any information which is or becomes (through no fault of Licensee) publicly available. If Licensee is required by law or order of a court or other government authority to disclose Blue Coat’s confidential information, then Licensee will immediately notify Blue Coat as soon as possible, but in any event prior to the disclosure, and will cooperate with Blue Coat, at its expense and request, in any lawful action to contest or limit the scope of such required disclosure.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL BLUE COAT AND ITS LICENSORS BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THIS LICENSE, THE PRODUCT OR THE SERVICE, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF BLUE COAT AND ITS LICENSORS KNEW, SHOULD HAVE KNOWN OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLUE COAT’S AND ITS LICENSORS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRODUCT OR THE SERVICE, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY LICENSEE UNDER THIS LICENSE. THIS SECTION 12 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
12. Termination. Without prejudice to any other rights, Blue Coat may cancel this Agreement if Licensee does not abide by the terms and conditions of this Agreement, in which case Licensee must destroy all copies of the Product and discontinue access of the Service.
13. Export Restrictions. All Product, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with these laws and regulations and acknowledge that Licensee has the responsibility to obtain any licenses to export, re-export, or import as may be required after delivery to Licensee.
14. Restricted Rights Legend. Any software which is provided for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Blue Coat Systems, Inc., 420 N. Mary Avenue, Sunnyvale, CA 94085.
15. Canadian Transactions. If Licensee is subject to Canadian law, Licensee agrees to the following:
The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.
16. Governing Law; Venue and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable). Subject only to the provisions of Section 19, any legal action, suit or proceeding arising out of or relating to this Agreement must be instituted exclusively in a court of competent jurisdiction, federal or state, located within the State of California, and in no other venue. Each party further irrevocably consents to personal jurisdiction and venue in, and agrees to service of process issued or authorized by, any such court.
17. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this Agreement will remain in full force and effect.
18. Equitable Relief. The parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to Blue Coat by reason of Licensee’s breach of this Agreement and that such a breach will cause irreparable harm to Blue Coat. In addition to any other right or remedy available at law or in equity Blue Coat will be entitled to specific performance or injunctive relief to enforce or prevent any breach of confidentiality or any breach of any license granted hereunder without posting a bond or other security, and may apply to any court of competent jurisdiction for such relief notwithstanding the provisions of Section 17.
19. Attorneys’ Fees. In any action, suit or proceeding arising out of or relating to this Agreement, Blue Coat, if it is the prevailing party, will be entitled to recover from Licensee its reasonable attorneys’ fees and expenses in addition to any other relief that may be awarded.
20. Assignment. Licensee may not assign this Agreement or assign any of Licensee’s rights or delegate any of Licensee’s obligations under this Agreement, by operation of law or otherwise (including by merger, sale of assets or consolidation), without Blue Coat’s prior written consent, which may be granted, conditioned or withheld in Blue Coat’s sole discretion. Any attempted assignment by Licensee in violation of this Section 21 will be void and will constitute a material breach of this Agreement. Notwithstanding the foregoing, Blue Coat may assign this Agreement at any time in its sole discretion. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
21. Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. This Agreement may only be amended by a written document signed by both parties.
22. Entire Agreement. This Agreement constitutes the entire, final and exclusive agreement between Licensee and Blue Coat regarding the specific license transaction described herein. No prior agreements, understandings, statements, proposals or representations, written or oral, apply. No written or oral statement, advertisement or product description not expressly contained in this Agreement can be used to alter or supplement its terms. Licensee may not rely on any representations or statements not contained in this Agreement. Headings in this Agreement are for reference only and have no effect on any provision’s meaning.
PAID OPTION TERMS
1. Description. Use of the Product and Service by an organization for non-personal purposes (the “Paid Subscription License”) will be subject, in addition to all the other terms of this Agreement, to the terms described in the following sections. Licensee must pay for a Paid Subscription License, and Licensee will be charged on a recurring basis. If Blue Coat makes any changes to these terms and conditions that Licensee does not wish to accept, Licensee’s only remedy is to terminate Licensee’s Paid Subscription License.
2. Additional Features. As part of the Paid Subscription License, Licensee will receive limited support for the Product and Service consisting of 8x5 emails with callback.
3. Agreement to Pay.
a. By Credit Card. By registering for a Paid Subscription License, Licensee authorizes Blue Coat to charge applicable recurring subscription fees to Licensee’s designated credit card in advance without further notice. Licensee will choose to be either a monthly subscriber (and be charged on a monthly basis) or an annual subscriber (and charged on an annual basis). If Licensee’s credit card number changes during the term of Licensee’s subscription plan, Licensee must immediately update the credit card information associated with Licensee’s account. If Blue Coat is unable to charge Licensee’s credit card, Blue Coat may immediately downgrade Licensee to the no-charge individual use license or terminate Licensee’s subscription.
b. By Purchase Order. By placing a purchase order for a Paid Subscription License, Licensee agrees to pay for a Paid Subscription License in advance net 30 days from Blue Coat’s invoice. Licensee must sign and return this Agreement to Blue Coat with a purchase order for the full amount of the Paid Subscription License. Licensee acknowledges and agrees that any terms included on its purchase order are of no force or effect. This Agreement signed by Licensee supersedes any click-through agreement presented during the installation of the Product.
4. Right to Change Fees. All subscription fees are subject to change on a prospective basis upon notice from Blue Coat. If Licensee does not accept the new fees, Licensee must terminate its subscription immediately.
5. Cancellation. Licensee may cancel its Paid Subscription License by logging in to the payment processor’s account and cancelling the recurring subscription or by creating a support case with K9 support. If Licensee cancels an annual Paid Subscription License within the first 30 days, Blue Coat will refund the annual subscription to Licensee’s designated credit card. Thereafter, Blue Coat will not refund any amounts previously paid by Licensee. There are no refunds for the cancellation of a monthly Paid Subscription License.