Personal EULA - 2016-09-01
K9™ PERSONAL USE LICENSE AGREEMENT
Effective Date: September 1, 2016
FOR CUSTOMERS LOCATED IN THE AMERICAS, SYMANTEC CORPORATION, WITH A PRINCIPAL PLACE OF BUSINESS AT 384 SANTA TRINITA AVENUE, SUNNYVALE, CA 94085, OR, FOR CUSTOMERS LOCATED OUTSIDE THE AMERICAS, BLUE COAT SYSTEMS INTERNATIONAL SARL, WITH A PRINCIPAL PLACE OF BUSINESS AT LES GALLERIES DU REX, 3A ROUTE DES ARSENAUX, 3EME ETAGE, 1700 FRIBOURG, SWITZERLAND ("SYMANTEC") IS WILLING TO LICENSE THE PRODUCTS TO YOU AS THE INDIVIDUAL THAT WILL BE UTILIZING THE LICENSED PRODUCT (REFERENCED BELOW AS "LICENSEE") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT (THE "AGREEMENT"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE LICENSED PRODUCTS. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND SYMANTEC. BY CLICKING THE "I AGREE" OR "YES" BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR BY LOADING THE SOFTWARE OR OTHERWISE USING THE LICENSED PRODUCT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCEPT THIS AGREEMENT OR ACCESS OR INSTALL THE LICENSED PRODUCT, AND CONTACT K9SUPPORT@BLUECOAT.COM.
1. License Terms.
1.1 Introduction. The K9 Web Protection software and services related thereto made available by Symantec ("Products") include software ("Software") and proprietary data ("BC Data"). Software and BC Data are hereafter referred to as "Licensed Products". The Products are provided under this Agreement for personal, non-commercial use to individuals only. For commercial use of the Products (including without limitation for any organization), a fee is required and the terms of the K9 Commercial Use License Agreement shall apply. Notwithstanding this Agreement, use of K9 Safe Search is governed by the K9 Safe Search Terms of Service.
1.2 License. Subject to the terms and conditions of this Agreement, Symantec grants to Licensee, during the license term (as described below), a personal, non-transferable, nonexclusive, worldwide license, subject to additional limitations set forth in this Section 1, to use the Licensed Products solely on a single device for personal purposes only in accordance with the documentation.
1.3 Ownership. The Products are proprietary to Symantec or its licensors or suppliers. Licensee acknowledges and agrees that: (a) the Products are protected under U.S. and international copyright and other intellectual property laws; (b) Symantec 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 Licensee hereunder are reserved by Symantec; (d) Licensee acquires no ownership or other interest (other than Licensee license rights set forth above in Section 1.2) in or to the Licensed Products; and (e) BC Data is confidential information of Symantec. Licensee agrees that any suggestions, comments or other feedback provided by Licensee to Symantec or its licensors with respect to the Products ("Feedback") shall not be deemed to constitute confidential information of Licensee or impose any confidentiality obligations on Symantec. Symantec shall be free to use, disclose, reproduce, license or otherwise distribute and exploit Feedback without any obligation, restriction or duty to account.
1.4 License Restrictions. Licensee will not (a) copy the Licensed Products (except for 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 Symantec 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 (the interface information necessary to achieve interoperability of the Licensed Products with independently created computer programs will be provided by Symantec in the required jurisdictions, if requested, subject to payment of Symantec's reasonable costs and expenses for procuring and supplying such information), (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 Licensee 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, Licensee 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. Licensee shall receive a license key from Symantec ("License Key"), and Licensee may only install, use and access the Products for one device per License Key (or, for Products distributed without the License Key-functionality, for one device per download).
1.5 Registration Requirements. Symantec may require registration in order to establish license entitlements for the Products. If Licensee fails to complete the registration requirements, Product features may be or become inoperable and Licensee may be unable to use such features until Licensee has completed registration.
2. Support. Licensee acknowledges and agrees that Symantec is not required to provide any installation, training or other support services to Licensee. If Symantec provides Licensee 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. Symantec 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.
3.1 Licensee hereby consents to communication and transmission of information between the Products and Symantec, and Licensee agrees that Symantec may collect, maintain, process and use data as set forth in Symantec's K9 Privacy Statement, which Symantec may amend from time to time.
4. Licensee's Use of Products. Licensee represents, warrants and covenants that:
4.1 Privacy Rights. Licensee will take all appropriate measures to avoid violating any privacy rights of individuals in connection with Licensee's use of the Products.
4.2 Notices to End Users. As between Symantec and Licensee, Licensee shall have the sole obligation to provide notices to users of the Products that their use of Licensee's computers, electronic appliances and devices (and those of users on Licensee'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.
4.3 Product Misuse. Licensee shall not take any action that imposes an unreasonable or disproportionately large load on Symantec 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 Products (including services related thereto) depends, among other things, on the availability of internet connectivity, net congestion and other factors. Licensee 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 Symantec's site.
5. Embedded Third Party Products. Certain components of the Products may incorporate third-party software programs, data and/or libraries ("Third Party Components"). Licensee agrees that Symantec'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. Licensee may access the third party copyright notices, terms and conditions at http://www.bluecoat.com/3PNoticesandTerms.
6. Open Source Software. Certain of the Products may include open source software which is subject to the terms of the applicable open source software license agreement. The licensing terms in such open source software license agreement shall supersede the licensing terms of this Agreement to the extent required by the applicable open source license 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. If (and to the extent) required by the applicable open source software license agreement, Symantec will make available the required source code for the applicable open source software in response to Customer's request emailed to email@example.com.
7. Export Control; Government Regulations. Licensee 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"). Licensee 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 1.4(i) herein and agrees that it alone is responsible for ensuring its compliance with Export Control and Sanctions Rules. Licensee shall not do anything that would cause Symantec to be in breach of the Export Control and Sanctions Rules. Symantec reserves the right, at its sole discretion, to void any warranty concerning the Products if Symantec has reason to believe that the Licensee 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.
8. Termination. The term of this Agreement shall continue from the effective date until terminated as set forth in this Section 8. This Agreement and Licensee's rights hereunder will automatically terminate upon Licensee's failure to comply with any material provision of this Agreement. Symantec may terminate this Agreement at any time for any reason (or no reason).
9. Effect of Termination. Upon termination of this Agreement pursuant to Section 8, Licensee agrees to cease all use of the Products and associated documentation, installed or otherwise, and within 5 (five) days after termination, verify in writing to Symantec (if requested by Symantec) that the Licensed Products have been uninstalled. The parties agree that Symantec shall be entitled to effectuate self-help remedies, if available, to terminate use of the Product.
10. Warranty Disclaimers and Exclusions.
10.1 LICENSEE 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.
10.2 LICENSEE ACKNOWLEDGES AND AGREES THAT SYMANTEC 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.
10.3 NOTWITHSTANDING ANY OTHER TERM HEREIN, Symantec 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 LICENSEE shall be SOLELY responsible, and Symantec shall have no responsibility for determining that LICENSEE'S proposed OR ACTUAL use of PRODUCTS OR SERVICEs complies with applicable laws. LICENSEE 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 APPLICABLE jurisdiction(S).
10.4 LICENSEE ACKNOWLEDGES AND AGREES THAT SYMANTEC 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 LICENSEE 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 SYMANTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10.5 LICENSEE may link to third party sites through the use of the PRODUCTS. Third party sites are not under the control of Symantec, and Symantec 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.
10.6 The Products are not designed, manufactured or intended for use in High Risk Activities. Symantec and its licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.
11. Disclaimers of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT SYMANTEC 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.
12. Limitation of Liability. Symantec'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 aggregate to ONE U.S. DOLLAR (US$1). No terms of SECTION 11, SECTION 12 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, Symantec's liability is limited to re-supplying or paying the cost of re-supplying applicable products. THIS SECTION 12 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
13. Licensee Indemnity. Licensee shall defend and indemnify and hold Symantec 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 Licensee herein; (b) Licensee's failure to comply with any applicable laws or regulations including but not limited to the Export Control and Sanctions Rules; (c) Licensee's modification of the Products, and any claim against Symantec in connection with any unauthorized installation, use, copying, access or distribution of any Product that Symantec has provided to Licensee 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 Symantec, and/or (e) Licensee's breach of this Agreement.
14. Miscellaneous. Neither the license to use nor this Agreement are assignable or transferable by Licensee without prior written notice, to and written consent from, Symantec; any attempt to do so shall be void. Any notice, report, approval or consent required or permitted hereunder shall be in writing. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement and all non-contractual obligations arising from or connected with the same shall be governed by and construed in accordance with the laws of: (a) the State of California without regard to the conflicts of laws provisions thereof for a Customer in the Americas and such Customer consents to the sole jurisdiction and venue of the state or federal courts of Santa Clara County, California for actions related to the subject matter hereof and irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds; or (b) England and Wales without regard to the conflicts of laws provisions thereof for a Customer in APAC/EMEA and such Customer consents to the sole jurisdiction and venue of the courts of London, England for actions related to the subject matter hereof and irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds. The United Nations Convention on Contracts for the International Sale of Goods or the Uniform Commercial Code or similar statutes shall not apply with respect to this Agreement. Except for actions related to the secrecy of confidential information or the protection of the proprietary rights of Symantec and its suppliers, no action arising or resulting from this Agreement, may be brought by either party more than two (2) years after the cause of action accrued. Licensee agrees that a material breach of this Agreement would cause irreparable injury to Symantec, its suppliers and/or its licensors for which monetary damages would not be an adequate remedy and that Symantec, its suppliers and its licensors shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Any waivers or amendments shall be effective only if made in writing by non-preprinted agreements clearly understood by both parties to be an amendment or waiver and signed by an authorized representative of the respective parties. Notwithstanding the foregoing, Symantec may change the terms of this Agreement by publishing the changes with the effective date of the new terms. Both parties agree that this Agreement is the complete and exclusive statement of mutual understanding of the parties in regards to the Products and takes precedence over all previous agreements relating to the Products.