BLUE COAT SYSTEMS, INC.
K9™ COMMERCIAL USE LICENSE AGREEMENT
BY ACCEPTING THIS AGREEMENT OR ACCESSING THE PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT ACCEPT THIS AGREEMENT OR ACCESS AND/OR INSTALL THE PRODUCTS AND CONTACT K9SUPPORT@BLUECOAT.COM. IF YOU ARE ACCEPTING THE AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER PARTY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY AS AN AGENT TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF THAT PARTY AND TO BIND THAT PARTY TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
This License Agreement (“Agreement”) is made and entered into as of the time and date of click thru action (“Effective Date”) by an authorized representative of the party entering into this Agreement (“Customer”) and the Blue Coat entity identified below. If Customer is organized and operating primarily within North America, Central America or South America (“Customer in the Americas”) the Blue Coat contracting party shall be Blue Coat Systems, Inc. If Customer is organized and operating primarily outside North America, Central America or South America (“Customer in APAC/EMEA”), the Blue Coat contracting party shall be Blue Coat Systems International SARL (in either case “Blue Coat”).
1.1 Products. The K9 Web Protection software and services related thereto made available by Blue Coat (“Products”) include software (“Software”) and proprietary data (“BC Data”). Software and BC Data are hereafter referred to as “Licensed Products”. Notwithstanding this Agreement, use of K9 Safe Search is governed by the K9 Safe Search Terms of Service.
1.2 Subscription Period. Products are licensed on a subscription basis for monthly or annual subscription periods (each, a “Subscription Period”). Licenses are automatically renewed for additional Subscription Periods, unless terminated, as set forth in Section 11.
2.1 Introduction. Customer must pay the fees set forth at the K9 website (“Fees”) for each Subscription Period for each device. Blue Coat may change the Fees at any time, effective at the end of the current Subscription Period (at which time Blue Coat may change the terms of this Agreement). If Customer does not wish to accept the new terms or new Fees, Customer may (and Customer’s sole remedy is to) terminate this Agreement as set forth in Section 11.
2.2 Payment by Credit Card. By registering for a commercial license through the K9 Website, Customer authorizes Blue Coat to charge Customer the applicable Fees through the payment processor identified on the K9 Website, in advance and on-going (for the initial and all renewal Subscription Periods) without further authorization or notice. Customer will be charged prior to each Subscription Period, unless this Agreement is terminated as set forth in Section 11. If Customer’s credit card number changes during the Term (as defined below), Customer must immediately update the credit card information associated with Customer’s account with the payment processor. Blue Coat may, at any time, terminate this Agreement and Customer’s license, including disabling the Product (including stopping all services therefore) without notice to Customer if Customer’s account is past due.
2.3 Purchase Orders. In some cases, as determined by Blue Coat, payment shall be processed though Blue Coat via purchase orders. By placing a purchase order for the Products, Customer agrees to pay in advance of each Subscription Period net 30 days from Blue Coat’s invoice. Customer acknowledges and agrees that any terms included on its purchase order are of no force or effect, and this Agreement shall govern.
3.1 License. Subject to payment of Fees and compliance with the terms and conditions of Sections 3.3, 6, 7 and 10 of this Agreement, Blue Coat grants to Customer, during the Term, a personal, non-transferable, nonexclusive, worldwide license, subject to additional limitations set forth in this Section 3, to use the Licensed Products solely for internal business purposes on the number of devices for which licenses have been paid.
3.2 Ownership. The Products are proprietary to Blue Coat or its licensors or suppliers. Customer acknowledges and agrees that: (a) the Products are protected under U.S. and international copyright and other intellectual property laws; (b) Blue Coat and its licensors retain all copyrights and other intellectual property rights in the Products; (c) there are no implied licenses under this license and any rights not expressly granted to Customer hereunder are reserved by Blue Coat; (d) Customer acquires no ownership or other interest (other than Customer license rights set forth above in Section 3.2) in or to the Licensed Products; and (e) BC Data is confidential information of Blue Coat. Customer agrees that any suggestions, comments or other feedback provided by Customer to Blue Coat or its licensors with respect to the Products (“Feedback”) shall not be deemed to constitute confidential information of Customer or impose any confidentiality obligations on Blue Coat. Blue Coat shall be free to use, disclose, reproduce, license or otherwise distribute and exploit Feedback without any obligation, restriction or duty to account.
3.3 License Restrictions. Customer will not (a) copy the Licensed Products (except for a copy for each licensed device and a copy for back-up purposes), (b) modify, create derivative works of or translate the Licensed Products, (c) publish, distribute, rent, lease, sell, sublicense, assign or otherwise transfer the Products or any part thereof, (d) use or permit use of the Products for purposes of application development, (e) remove or obscure any Blue Coat or licensor’s copyright, trademark or other proprietary notices or legends from any portion of the Products or any associated documentation, (f) modify, block, circumvent or otherwise interfere with any authentication, license key or security measures in the Products, (g) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Products, (h) use or permit use of the Products for on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or aircraft communications systems, air traffic control, life support systems, human implantation, nuclear facilities or systems or weapons systems, or any other application known to Customer where product failure would lead to loss of life or catastrophic property damage, in which the failure of the program could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”), (i) permit any Product export, re-export, download, resale or transfer, directly or indirectly: (x) into (or to a national, resident or government of) any prohibited destination (including Cuba, Iran, North Korea, Sudan or Syria or other countries subject to U.S. trade embargoes imposed by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) from time to time) or other destination for which specific authorization would otherwise be required under the Export Administration Regulations (EAR) administered by the US Department of Commerce’s Bureau of Industry and Security (BIS) or other applicable laws, or (y) to any person identified on the OFAC List of Specially Designated Nationals and Blocked Persons, the BIS Denied Parties List, BIS Entity List or BIS Unverified List (see: http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern), or (j) use the Products for any proliferation or terrorist-related end-use. In addition, with respect to BC Data, Customer will not (i) repackage, redistribute, divert, license, sublicense, rent, disclose or resell BC Data to, or for the benefit of, any third party, (ii) use the BC Data on behalf of third parties (including through file sharing, hosting, application services provider, service bureau, or any other type of service), (iii) use the BC Data other than in connection with the authorized use of Products, (iv) display the BC Data on any web site or application, (v) use the BC Data to develop products or for any other purposes not described in the documentation or (vi) allow the BC Data to become subject to any lien. Customer shall receive license key(s) from Blue Coat (“License Key”), and Customer may only install, use and access the Products for one device per License Key Customer paid for.
3.4 Registration Requirements. Blue Coat may require registration in order to establish license entitlements for the Products. If Customer fails to complete the registration requirements, Product features may be or become inoperable and Customer may be unable to use such features until Customer has completed registration.
4. Support. Customer will receive limited Blue Coat support (pursuant to Blue Coat’s standard practice for Commercial K9 licenses) for the Product consisting of email response to services requests submitted in accordance with the K9 support request requirements. Customer acknowledges and agrees that Blue Coat is not required to provide any installation, training or other support services to Customer. If Blue Coat provides Customer with a new release, error correction, update, upgrade or other modification to the Products, such modification will be deemed part of the Products, 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 and to alter prices, features, specifications, capabilities, functions, licensing terms or other characteristics of any future releases of the Products.
5. Audit Rights. Customer agrees to maintain and make available to Blue Coat accurate and complete records of Customer’s installation/use of the Products for periodic audit as requested by Blue Coat during reasonable business hours. In addition, Customer acknowledges and agrees that Blue Coat may conduct periodic audits, to verify Customer’s installation, deployment and usage of the Licensed Products. If any such audit should disclose any unlicensed usage or unpaid fees, Customer shall promptly pay all amounts rightfully due together with interest thereon at the rate of one and one-half percent (1½%) per month or the highest interest rate allowed by law, whichever is lower, from the date on which such amount became due. In addition, if such audit should disclose that Customer is out of license compliance by greater than five percent (5%), then Customer shall promptly pay any and all reasonable costs associated with the audit.
6.1 Customer Data. Blue Coat collects personally identifiable information uploaded during registration or account administration and information provided during support requests (collectively, “Administrative Data”). Administrative Data includes, for example, name, email address, phone number and K9-generated licenses associated with an account or email address. In its provision of the Products (including services), Blue Coat may receive, store and/or process network traffic data (“Traffic Data”), such as installation date, uninstall date, last date seen, IP address for certain K9 requests (such as changing email address or requesting a password reset), K9 Version and Operating System, the URL for which categorization is being requested, other meta-data about the request (such as referrer URL and user-agent (e.g., Browser type)), and the IP address of the resolved URL. With regard to Traffic Data, Blue Coat is acting in its capacity as a data processor and will process the Traffic Data of Customer only on behalf of and under the direction of Customer (and its designees). “Customer Data” means Traffic Data and Administrative Data.
6.2 Consent. While Customer retains all rights to the Traffic Data, Customer authorizes and directs Blue Coat to store, process, retrieve, and disclose Customer Data for the following purposes: (i) providing service to Customer; (ii) analyzing, maintaining and improving Blue Coat’s products and services; (iii) complying with legal, governmental or contractual terms; (iv) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing Blue Coat products and services; and (v) anonymously aggregating and statistically analyzing malicious or unwanted content. In addition, Blue Coat may use the Administrative Data for the following purposes: (i) to inform you about products, seminars and services Blue Coat believes may be of interest to you; (ii) to contact you if Blue Coat needs to obtain or provide additional information; and (iii) to verify the accuracy of Blue Coat’s records. Blue Coat may use web analytics and cookies as set forth in the Blue Coat Cookie Statement, which Blue Coat may amend from time to time.
6.3 Safeguarding Personally Identifiable Information. If and when Customer submits any web or application use data to Blue Coat, Customer shall do so without submitting any information identifying any particular individual who attempted to access or actually accessed a specific URL address or application or any other data that might identify any particular user.
7. Customer’s Use of Products. Customer represents, warrants and covenants that:
7.1 Privacy Rights. Customer will take all appropriate measures to avoid violating any privacy rights of individuals in connection with Customer’s use of the Products.
7.2 Notices to End Users. As between Blue Coat and Customer, Customer shall have the sole obligation to provide notices to users of the Products that their use of Customer’s computers, electronic appliances and devices (and those of users on Customer’s network) may be monitored, inspected, decrypted, and/or re-encrypted and that the users should have no expectation of privacy or security when accessing the Internet or other applications.
7.3 Product Misuse. Customer shall not take any action that imposes an unreasonable or disproportionately large load on Blue Coat infrastructure. Customer may not disclose or share Customer’s password with any third parties or use Customer’s password for any unauthorized purpose. The functionality of the Products (including services related thereto) depends, among other things, on the availability of internet connectivity, net congestion and other factors. Customer shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Products or any transaction conducted on any Blue Coat’s site. Customer will not use the Products in a ‘public communications network’ (as defined in Section 2(c) of the European Commission’s Proposal for a Directive on a Common Regulatory Framework for Electronic Communications Networks and Services, COM (2000) 393 final (July 12, 2000)) (“Public Network”) in a manner that abuses the rights to privacy or freedom of expression, as outlined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, (collectively, “International Human Rights Standards”), of ‘users’ (as defined in section 2(a) of Directive 2002/58/EC, as amended) who directly access the Internet or otherwise transmit data through such Public Network; provided, the foregoing shall not limit use of the Products in a Public Network to restrict, monitor, collect or process data accessed or transmitted by users based upon exceptions to the rights of privacy and freedom of expression that are recognized by International Human Rights Standards or authorized by local law or regulation.
8. Embedded Third Party Products. Certain components of the Products may incorporate third-party software programs, data and/or libraries (“Third Party Components”). Customer agrees that Blue Coat’s third-party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this license intended to protect intellectual property rights in the Products and limit certain uses thereof; however, such third party licensors have no obligations hereunder. Certain Third Party Components may be subject to additional terms and conditions. Customer may access the third party copyright notices, terms and conditions at http://www.bluecoat.com/3PNoticesandTerms.
9. Open Source Software. Certain of the Products may be distributed with open source software which is subject to the terms of the applicable open source software license agreement and not the terms and conditions of this Agreement. All open source software is provided WITHOUT ANY WARRANTY INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Blue Coat will make source code available to Customer as required by the applicable open source software license agreement.
10. Export Control; Government Regulations. Customer hereby acknowledges and agrees that the Products, documents, technical data and any other materials delivered under this Agreement may be subject to applicable export control and trade sanctions laws, regulations, legislative and regulatory requirements, rules and licenses, including without limitation those of the US, the EU and the UK (“Export Control and Sanctions Rules”). Customer shall comply with the Export Control and Sanctions Rules including but not limited to the specific regulatory prohibitions of OFAC and the EAR as referenced in Section 3.3(i) herein and agrees that it alone is responsible for ensuring its compliance with Export Control and Sanctions Rules. Customer shall not do anything that would cause Blue Coat to be in breach of the Export Control and Sanctions Rules. Blue Coat reserves the right, at its sole discretion, to void any warranty concerning the Products if Blue Coat has reason to believe that the Customer has failed to comply with any part of this Section. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Licensed Products and associated documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
11. Term and Termination.
11.1 Term and Termination. This Agreement will be effective on the Effective Date and will continue for the Subscription Period unless earlier terminated in accordance with this Agreement. The Agreement will automatically renew for additional Subscription Period(s) unless either party provides written notice to the other party prior to the end of the current Subscription Period (the initial Subscription Period and all renewal Subscription Period(s) shall be referred to herein as the “Term”). Customer may terminate this Agreement by cancelling the recurring subscription payment on Customer’s payment processor account or by sending a request for termination to K9support@bluecoat.com, including all necessary information. If Customer terminates within the first 30 days of the Effective Date, Blue Coat will refund the Fees for the initial Subscription Period via the payment processor on Customer’s designated credit card. Thereafter, Blue Coat will not refund any amounts previously paid by Customer. There are no refunds for the cancellation of a monthly subscription.
11.2 Effect of Termination. Upon termination of this Agreement, Customer agrees to cease all use of the Products. The parties agree that Blue Coat shall be entitled to effectuate self-help remedies, if available, to terminate use of the Product. Additionally, for termination of this Agreement, if Customer fails to comply with the foregoing in this Section 11.2, Customer will be deemed, at Blue Coat’s option, to have licensed the Product(s) on Blue Coat’s standard terms and conditions and Blue Coat reserves the right to invoice Customer for the full list price of the Product(s) for another Subscription Period, which Customer agrees to pay in full to Blue Coat net 30 days from the invoice date (or Blue Coat may charge Customer through the payment processor as described above).
12. Warranties and Disclaimer.
12.1 CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSES, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
12.2 CUSTOMER ACKNOWLEDGES AND AGREES THAT BLUE COAT DOES NOT WARRANT THAT: (A) THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (B) THE PRODUCTS ARE NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE; (C) the PRODUCTS, AS APPLICABLE, will always block access to the addresses and applications that are contained therein; (D) the PRODUCTS, AS APPLICABLE, will contain every foreseeable URL address or application that should potentially be blocked; (E) addresses and applications contained in the PRODUCTS, AS APPLICABLE, will be appropriately categorized; (F) THE BC DATA WILL BE ACCURATE OR COMPLETE; OR (G) THE FEATURES, CATEGORIES, OR FUNCTIONALITIES OF THE PRODUCTS WILL BE AVAILABLE AT ANY TIME IN THE FUTURE.
12.3 NOTWITHSTANDING ANY OTHER TERM HEREIN, Blue Coat makes no representations AND UNDERTAKES NO INDEMNIFICATION OBLIGATIONS REGARDING, ARISING FROM OR RELATED TO the legality of monitoring OF INFORMATION in any particular jurisdiction, and CUSTOMER shall be SOLELY responsible, and Blue Coat shall have no responsibility for determining that CUSTOMER’S proposed OR ACTUAL use of PRODUCTS OR SERVICEs complies with applicable laws. CUSTOMER acknowledgeS and agreeS that IT IS solely responsible for selecting configurations, POLICIES AND PROCEDURES IN PRODUCTS THAT ARE CONFIGURABLE INCLUDING, WITHOUT LIMITATION, THE SELECTION OF FILTRERED CATEGORIES AND WEB APPLICATION CONTROLS, AND FOR ASSURING THAT THE SELECTION complies with all applicable laws in THE APPLICABEL jurisdiction(S).
12.4 CUSTOMER ACKNOWLEDGES AND AGREES THAT BLUE COAT WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: (A) THE USE OF THE PRODUCTS OR SERVICES BY CUSTOMER OR BY THIRD PARTIES; (B) SECURITY BREACHES; OR (C) EAVESDROPPING, INTERCEPTION, FAILURE OF DELIVERY OR LOSS OF DATA SENT, STORED, OR RECEIVED USING THE PRODUCTS OR SERVICES. THESE LIMITATIONS SHALL APPLY EVEN IF BLUE COAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.5 CUSTOMER may link to third party sites through the use of the PRODUCTS. Third party sites are not under the control of Blue Coat, and Blue Coat is not responsible for the contents AND TRANSMISSIONS of any third party sites, any links contained in third party sites, or any changes or updates to third party sites.
12.6 The Products are not designed, manufactured or intended for use in High Risk Activities. Blue Coat and its licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.
13. Disclaimers of Liability. CUSTOMER ACKNOWLEDGES AND AGREES THAT BLUE COAT WILL HAVE NO LIABILITY WHATSOEVER and SPECIFICALLY excludes liability for any indirect, incidental, special, or consequential damages or loss (including loss of profits, loss of data, AND BUSINESS INTERRUPTION) or costs of procuring substitute goods, software or services, even if it has been advised of the possibility of such damages, arising out of or in connection with this Agreement.
14. Limitation of Liability. blue coat’s maximum liability whether for breach of this Agreement or in tort (including negligence) or for any other common law or statutory cause of action arising out of or in connection with this Agreement is limited in the FEES pAID UNDER THIS AGREEMENT. No terms of SECTION 13, SECTION 14 or elsewhere in the Agreement shall operate to limit or exclude liability that cannot be limited or excluded by applicable law. For any liability which cannot be excluded, but can be limited, Blue Coat’s liability is limited to re-supplying or paying the cost of re-supplying applicable products. THIS SECTION 14 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
15. Customer Indemnity. Customer shall defend and indemnify and hold Blue Coat and its affiliates, shareholders, employees, agents, and subcontractors harmless against all claims, suits, losses, damages, liabilities, costs, and expenses including reasonable legal expenses and fees arising out of, resulting from or relating to: (a) any breach of a representation or warranty made by Customer herein; (b) Customer's failure to comply with any applicable laws or regulations including but not limited to the Export Control and Sanctions Rules; (c) Customer's modification of the Products, and any claim against Blue Coat in connection with any unauthorized installation, use, copying, access or distribution of any Product that Blue Coat has provided to Customer under this Agreement; (d) any alleged infringement or misappropriation of any intellectual property rights of any third party based on or related to Product modifications not made by Blue Coat, and/or (e) Customer's breach of this Agreement.