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Clear Blue Security Subscription and License Agreement
Software License and Services Agreement
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND CLEAR BLUE SECURITY (“CLEARBLUE”) PERMITTING YOU TO ACCESS AND USE, SUBJECT TO THE TERMS OF THIS AGREEMENT (I) CLEARBLUE`S VIRTUAL SECURITY EXPERT™ SOFTWARE (THE “SOFTWARE”) AND (II) THE SERVICES PROVIDED BY CLEARBLUE RELATING TO YOUR USE OF THE SOFTWARE (THE “SERVICES”). YOU MUST READ AND ACCEPT THE TERMS AND CONDITIONS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”). IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE ABLE TO USE THE SOFTWARE OR THE SERVICES. YOU MUST SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING THE “AGREE/ACCEPT” BUTTON. IF YOU DO NOT AGREE WITH THE TERMS CLICK “DISAGREE/DECLINE.”
1. LICENSE GRANTED; RESTRICTIONS. Subject to the terms and conditions of this Agreement, ClearBlue grants you a nonexclusive license to access and use the Software and Services for personal or internal business purposes only, without the right to sublicense such rights (the “License”), provided you unconditionally agree to access and use the Software and Services in accordance with this Agreement. The License granted to you by this Agreement allows you to download and install certain portions of the Software referred to as “Clear Blue Agents” on one or more computers in your network for the purpose of monitoring and gathering data related to your systems` security and translating the data back to ClearBlue for analysis and reporting. In connection with the License you may print out, or otherwise make, printed copies of the reports and other information or materials generated from your account access and use of the Software and Services for internal business purposes only. ClearBlue may automatically check your version of the Software and ClearBlue may automatically download upgrades to your computer to update, enhance and further develop the Services.
You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other ClearBlue systems, programs or data that are not included within the Software and Services under this Agreement; (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the Software or any documents provided by ClearBlue; (iii) permit any third party to benefit from the use or functionality of the Software or Services via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any of the rights granted to you under this Agreement; (v) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software or Services, prevent access to or the use of the Software or Services by ClearBlue; (vii) otherwise use the Software or Services except as expressly allowed under this Agreement; (viii) use the Software and Services in the manner, and for purposes other than as expressly specified in this Agreement; (ix) delete or in any manner alter any notices, disclaimers or other legends contained in the Software and Services or appearing on any screens, documents, reports, results or other materials obtained by you through use of the Software and Services ; (x) use any device or software to interfere or attempt to interfere with the proper operation of the Software and Services or (xi) violate any applicable local, state, national and international laws or regulations.
2. DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED "AS-IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEARBLUE AND ITS AFFILIATES AND AGENTS (“CLEARBLUE PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER CLEARBLUE NOR ANY CLEARBLUE PARTY WARRANTS THAT THE SOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF CLEARBLUE`S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF CLEARBLUE AND THE CLEARBLUE PARTIES DISCLAIMS AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE, SERVICES AND REPORTS IS ENTIRELY AT YOUR OWN RISK AND CLEARBLUE AND EACH CLEARBLUE PARTY SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
3. LIMITATIONS ON LIABILITY. THE TOTAL LIABILITY OF CLEARBLUE AND THE CLEARBLUE PARTIES IN THE AGGREGATE TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, IN NO EVENT SHALL CLEARBLUE AND THE CLEARBLUE PARTIES BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES, WHETHER OR NOT CLEARBLUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). CLEARBLUE AND THE CLEARBLUE PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE AND SERVICES, INCLUDING ANY REPORTS OR RESULTS, WHETHER OR NOT CLEARBLUE AND/OR THE CLEARBLUE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, CLEARBLUE WILL INDEMNIFY USER AND HOLD IT HARMLESS FROM AND AGAINST ANY LIABILITY, JUDGMENTS, CLAIMS, LOSSES AND EXPENSES (INCLUDING ATTORNEYS` FEES) RESULTING FROM OR RELATED TO A CLAIM BY ANY PARTY CLAIMING DAMAGES FOR INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY BASED ON MATERIAL SUPPLIED BY CLEARBLUE TO YOU UNDER THIS AGREEMENT.
4. TERM AND TERMINATION. Signing up for, downloading, installing and using ClearBlue Software and Services is provided at no charge. ClearBlue reserves the right to modify, charge for, modify pricing for and/or discontinue its Software and Services without prior notice. The term of this Agreement (the "Term") will commence on the date you download the Software, and will continue until terminated by either party in accordance. You may terminate this Agreement at any time by uninstalling the Software and destroying all copies of the Software in your possession or control. Clear Blue Security may terminate this Agreement at any time for any reason or no reason. Sections 2, 3, 5, 8, 12 and 13 of this Agreement shall survive termination. Upon termination of your subscription agreement, you are required to remove all Clear Blue Agents from your network.
5. PROPRIETARY RIGHTS. The Software and Services are licensed not sold and ClearBlue reserves all rights not expressly granted to you in this Agreement. The Software and Services are protected by applicable United States and foreign laws and treaties, including copyright laws, treaty provisions and patents and patent applications. ClearBlue or its licensors own all rights, title and interests in the Software and Services, including trade secrets, patents, copyrights and database rights, and the Software and Services shall remain the sole and exclusive property of ClearBlue and/or its licensors. Except as provided in Section 1 of this Agreement, you are not granted, any right, title, interest or license in the Software or Services.
6. THIRD PARTY WEBSITES. The Software and Services may contain or reference links to websites operated by third parties. These links are provided as a convenience only. Such third party websites are not under the control of ClearBlue. ClearBlue is not responsible for the content of any third party website of any link contained in a third party website.
7. CLEARBLUE`S ACCESS TO DATA. You agree that ClearBlue and the ClearBlue Parties are permitted to access any information or data that is generated in connection with your use of the Software and the Services for the purpose of analyzing, monitoring, providing reports regarding your system security; ensuring proper access and use of the Software and Services; and to maintain and troubleshoot the Software and Services. You understand that the Software installed on your computers will gather data and automatically transmit data to ClearBlue for processing and analyzing. Subject to the terms and conditions of this Agreement, ClearBlue shall store and otherwise maintain your data, reports and results as confidential and not sell your data except in connection with the sale or transfer of all, or any portion of, ClearBlue`s assets. ClearBlue shall abide by all applicable privacy laws and regulations. In the event of any loss or damage to your data, reports or results, your sole and exclusive remedy shall be for ClearBlue to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such data, reports or results.
8. TRADENAMES AND TRADEMARKS. This Agreement does not grant to any party a license to use any trademark, trade name, or logo of the other party and each party recognizes that the trademarks, trade names, and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names, and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party`s trademarks, trade names, or logos.
9. HARDWARE AND SERVICE REQUIREMENTS. You are solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of ClearBlue, that allows you to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). You agree to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by ClearBlue.
10. THIRD PARTY SOFTWARE. The Software and Services may contain or require the use of third party software which requires notices and/or additional terms and conditions which you must acknowledge and agree to in order to use the Software and Services. If you do not agree to the terms and conditions of such third party software, you will not be granted a License to the ClearBlue Software and Services, or if you had been previously been granted a License, your License will terminate.
11. EXPORT LAWS. The Software is subject to United States laws and regulations. You must comply will all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users and end use.
12. GOVERNING LAW. This Agreement and all matters relating to or arising from this Agreement will be governed and enforced by and construed in accordance with the substantive law of the State of Arizona, United States. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. To the extent permitted by law, any claim related to this contract or the Software or the Services must be brought within one year.
13. INJUNCTIVE RELIEF. You acknowledge that a violation of Sections 1, 4 & 7 of this Agreement would cause irreparable harm to ClearBlue for which no adequate remedy at law exists and you therefore agree that, in addition to any other remedies available, ClearBlue shall be entitled to seek injunctive relief to enforce the terms of Sections 1, 4 and 7. ClearBlue shall be entitled to recover all costs and expenses, including reasonable attorney`s fees incurred because of any such legal action.
14. GENERAL PROVISIONS.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between ClearBlue and you relating to the Software and Services and it supersedes any prior representations, discussions, undertakings, communication or advertising relating to the Software and Services. ClearBlue may change this contract at any time without notice. If ClearBlue makes a material change to this contract, ClearBlue will notify you at least 30 days before the change takes effect. If you do not agree to the change, you must cancel and stop using the Software and Services before the change takes place. If you do not stop using the Software and Services, your continued use will be under the changed contract terms. This contract is in electronic form. ClearBlue may provide any notices or information we are required to provide to you under the Agreement or by law in electronic form. ClearBlue may provide required information to you by e-mail at the e-mail address you specified when you signed up for the Software and Services or on your home page. Notices will be deemed given and received on the transmission date of the e-mail. ClearBlue may assign this contract, in whole or in part, at any time without notice to you. You may not assign this contract, or any part of it, to any other party. Any attempt to do so is void. ClearBlue will not be liable for any loss or damage or be deemed to be in breach of this contract due to any event or circumstance beyond its reasonable control, including but not limited to war, invasion, electrical shortages, terrorist attacks, earthquakes, labor strikes, or acts of god.
Phoenix, Arizona, August, 2009.