IMPORTANT - THE SERVICES ARE PROVIDED ONLY ON THE CONDITION THAT THE INDIVIDUAL, COMPANY, GROUP OF COMPANIES OR OTHER LEGAL ENTITY THAT HAS PLACED AN ORDER FOR THE SERVICES DEFINED BELOW (REFERRED TO IN THIS AGREEMENT AS “SUBSCRIBER”) AGREES TO THE TERMS AND CONDITIONS SET FORTH IN THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) BY WEBSENSE, INC. AND/OR ONE OF ITS SUBSIDIARIES (REFERRED TO IN THIS AGREEMENT AS “WEBSENSE”). READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT. BY ACCEPTING THIS AGREEMENT OR BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT, AND THAT (1) YOU, ON BEHALF OF YOURSELF; OR (2) THE SUBSCRIBER, IF THE SUBSCRIBER IS A BUSINESS, AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
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Definitions
"Defensio Website" means a web-based facility that is used by Subscriber to configure and manage the Services.
"Group" means any subsidiary or holding company together with any subsidiary of any such holding company.
"Order" means a purchase commitment mutually agreed upon between (1) Websense and Subscriber through use of the Defensio Website or other mutually agreed ordering document, or (2) a Websense authorized reseller and Subscriber, as appropriate.
"Privacy Policy" means the Defensio Website Privacy Policy found at http://defensio.com/privacy .
"Services" means the Defensio hosted anti-spam web service and any other Defensio service offered by Websense and utilized by Subscriber pursuant to this Agreement.
"Software" means certain proprietary software applications.
"Software Upgrades" means certain modifications or revisions to the Software.
"Subscriber" means the individual, company, Group of companies or other legal entity that has placed an order with a Websense reseller or registered its details on the Websense Defensio Website at: http://defensio.com . The use of any automated service to register details at the Defensio Website in order to become a Subscriber is strictly prohibited and any Subscriptions granted to such Subscribers can be immediately terminated by Websense.
"Subscription" means a non-exclusive, nontransferable right to use the Defensio Service in accordance with this Agreement and the Order.
"Subscription Fees" means the fees as agreed in an Order.
"Subscription Term" means the Subscription’s duration as indicated within the Order or the subscription area of the Defensio Website or the duration of a free trial or evaluation period.
"Virus" or "Malware" means a piece of computer software or program code designed to damage or reduce the performance of a computer program or data held on that computer.
"Websense" means Websense, Inc., a Delaware corporation with its principal place of business at 10240 Sorrento Valley Road, San Diego, California 92121, USA or, as the context may require, Websense International Limited, with a principal place of business at Alexandra House, The Sweepstakes, Ballsbridge, Dublin 4, Ireland, or one of their respective affiliates, as applicable.
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Subscription and Grant of Right to Use
Subject to the terms and conditions set out in this Agreement, Websense agrees to provide Subscriber the Subscription for the Subscription Term. Subscriber may use the Service as appropriate solely for Subscriber’s own internal business operations (not for the benefit of any other person or entity) during the Subscription Term, provided Subscriber has paid and continues to pay any required Subscription Fees. Subscription Fees are nonrefundable. Websense may, at any time, audit the use of the Services remotely or, upon reasonable notice, at the Subscriber’s site. Unless specifically authorized in writing in advance by Websense, Subscriber may not rent, lease or timeshare the Services or provide subscription services for the Services or permit others to do so. Any source code provided to Subscriber by Websense is subject to the terms of this Agreement. Any other use of the Services by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement. Evaluation subscriptions and free trials to the Services may be obtained subject to the terms of this Agreement for use by the Subscriber to evaluate and facilitate Subscriber’s subscription decision. Websense may terminate evaluation subscriptions and free trials at any time, upon which in order to continue using the Services, Subscriber must pay the applicable Subscription Fees or this Agreement will automatically terminate and Subscriber must comply with the terms of Section 9 below.
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Provision of Services
3.1) Subject to the terms and conditions of this Agreement, Websense will use commercially reasonable efforts to provide the Services for the Subscription Term.
3.2) If at any time provision of the Services would compromise the security of the Services as a result of, without limitation, hacking, denial of service attacks or other malicious activities originating from or directed at Subscriber’s network, Websense may suspend all or part of the Services immediately and until the problem has been resolved. In such an event, Websense will promptly inform Subscriber and work with Subscriber to resolve such issues in order to reinstate the Services at the earliest possible opportunity.
3.3) Should the Services be suspended or terminated for any reason whatsoever, Websense will reverse all configuration changes made on enrollment to the Services and it shall be the responsibility of Subscriber to undertake all other necessary configuration changes in order to correctly reroute traffic.
3.4) Websense may modify, enhance, replace or make additions to the Services in any way whatsoever as Websense may in its sole discretion decide.
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Subscriber Obligations
4.1) Subscriber agrees not to use the Services for any unlawful purpose and to indemnify and hold Websense harmless against any and all losses, costs and expenses which Websense may incur as a result of such unlawful activities, including but not limited to: (i) civil or criminal offenses of intellectual property rights infringement, including but not limited to copyright, trade mark and patent infringement; or (ii) transmission or posting of obscene, indecent or pornographic materials; or (iii) transmission or posting of any material which is slanderous, defamatory, offensive, abusive, or menacing or which causes annoyance or needless anxiety to any other person.
4.2) Subscriber must have the necessary authority, rights or permissions (whether by domain registration or otherwise) to use all domains registered to the Services.
4.3) In the event Subscriber fails to comply with any obligations in this Agreement, Websense may without notice and without limiting other available remedies, suspend the Services until Subscriber is in compliance.
4.4) Subscriber recognizes that content sent to and from Subscriber or from and to third parties will pass through the Service and accordingly Subscriber agrees to: (i) comply with all applicable laws (including any European data protection regulations that may apply), statutes, or ordinances related to the use of the Internet and/or privacy; (ii) use the Service only for legitimate purposes; (iii) comply with the reasonable standards and protocols published on the Internet from time to time and adopted by the majority of Internet users; and (iv) indemnify and hold Websense harmless against any liability to third parties resulting from information passing through the Service from Subscriber.
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Intellectual Property Rights
The Services and all intellectual property rights therein and related thereto are the sole and exclusive property of Websense and its licensors. All right, title and interest in and to the Services and any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the same shall remain exclusively with Websense and its licensors. The Services provided hereunder are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature thereof. The Services contain material that is protected by patent, copyright and trade secret law, and by international treaty provisions. Subscriber may not remove any proprietary notice of Websense or any third party from the Services. All rights not granted to Subscriber in this Agreement are reserved to Websense. No ownership of the Services passes to Subscriber. Websense may make changes to the Services at any time without notice. Except as otherwise expressly provided, Websense grants no express or implied right under Websense patents, copyrights, trademarks, or other intellectual property rights.
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Protection and Restrictions
6.1) The Services and all intellectual property rights therein and related thereto are the sole and exclusive property of Websense and its licensors. All right, title and interest in and to the Services and any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the same shall remain exclusively with Websense and its licensors. The Services provided hereunder are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature thereof. The Services contain material that is protected by patent, copyright and trade secret law, and by international treaty provisions. Subscriber may not remove any proprietary notice of Websense or any third party from the Services. All rights not granted to Subscriber in this Agreement are reserved to Websense. No ownership of the Services passes to Subscriber. Websense may make changes to the Services at any time without notice. Except as otherwise expressly provided, Websense grants no express or implied right under Websense patents, copyrights, trademarks, or other intellectual property rights.
6.2) Subscriber agrees to take all reasonable steps to safeguard the Services to ensure that no unauthorized person has access thereto and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form is made. Subscriber acknowledges that the Services contain valuable, confidential information and trade secrets and that unauthorized use and/or copying is harmful to Websense. Subscriber may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Services or any part thereof. Subscriber may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Services, nor shall Subscriber attempt to create the source code from the object code for the Software. Any third party software included in the Services may only be used in conjunction with the Services, and not independently from the Services. Subscriber may not, and shall not allow third parties to, publish, distribute or disclose the results of any benchmark tests performed on the Services without Websense’s prior written approval. Subscriber represents and warrants that it will comply with all laws, rules and regulations which apply to its use of the Services.
6.3) Each party agrees not to use any Confidential Information of the other party for any purpose except for the fulfillment of its obligations under this Agreement. Except as specifically authorized herein, the Receiving Party may disclose the Confidential Information only to its employees, agents or consultants who have a need to know the Confidential Information, have been advised of the confidentiality obligations related to the Confidential Information and are under an obligation of confidentiality no less stringent than that contained herein.
6.4) The Receiving Party further agrees it shall take the same measures, but no less than reasonable security measures, and use the same care, but no less than a reasonable degree of care, as it uses to preserve and protect the secrecy of its own confidential information, and to avoid disclosure or unauthorized use of, the Disclosing Party’s Confidential Information. Each party shall reproduce the other party's proprietary rights notices on any approved copies, in the same manner in which such notices were set forth in or on the original. Notwithstanding anything to the contrary herein, a Receiving Party shall be permitted to disclose Confidential Information to the extent (and only to the extent) the Receiving Party is required by law, regulation or court order to disclose such Confidential Information, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to making such disclosure in order to allow the Disclosing Party to seek a protective order or other appropriate remedy from the proper authority. The Receiving Party will cooperate in good faith with, and at the expense of, the Disclosing Party in seeking such order or other reasonable and lawful action which the Disclosing Party may take to resist such disclosure. If the Disclosing Party is not successful in precluding the requesting legal body from requiring the disclosure of the Disclosing Party’s Confidential Information, the Receiving Party will furnish only that portion of such Confidential Information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Confidential Information of which it becomes aware and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement.
6.5) Websense recognizes and confirms that the content of all network traffic sent to or received from Subscriber through use of the Services is confidential. In the normal provision of the Services Websense will not access, read or copy content other than by electronic methods and for the purposes of providing the Services. However, Websense may utilize the malware, spam or other information related to the Services for the purposes of: (i) maintaining and improving the Services; (ii) complying with all legal or contractual requirements; (iii) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the Services; and (iv) anonymously aggregating and statistically analyzing the content and (v) other uses related to analysis of the Services.
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Limited Warranty
For the Subscription Term, Websense warrants that the Services will operate in substantial conformance with the then current Websense published documentation under normal use. Notwithstanding the previous sentence, Websense does not warrant that: (i) the Services will be free of defects; (ii) the Services will satisfy all of Subscriber’s requirements; (iii) the Services will operate without interruption or error; (iv) the Services will always locate or block access to or transmission of all desired addresses, emails, malware, spam, applications and/or files; (v) the Services will identify every transmission or file that should potentially be located or blocked; or (vi) that the algorithms used in the Services will be complete or accurate. Websense shall use reasonable efforts to remedy any significant non-conformance in the Services which is reported to Websense that Websense can reasonably identify and confirm. Websense or its representative will repair or replace any such non-conforming or defective Services, or refund a pro-rata portion of the Subscription Fees paid for the remainder of the then current term, at the sole discretion of Websense. This paragraph sets forth the sole and exclusive remedy of Subscriber and Websense's entire liability for any breach of warranty or other duty related to the Services. Any unauthorized modification of the Services, tampering with the Services, use of the Services inconsistent with the accompanying documentation, or related breach of this Agreement shall void the aforementioned warranty. EXCEPT AS EXPLICITLY SET FORTH HEREIN AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.
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Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL WEBSENSE, ITS AFFILIATES, ITS LICENSORS OR RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF WEBSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WEBSENSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER TO WEBSENSE FOR THE APPLICABLE SERVICES OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE SERVICES THAT DIRECTLY CAUSED THE LIABILITY.
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Termination
This Agreement is effective until the end of the Subscription Term for such use as is authorized, or until terminated by either party. Subscriber may terminate this Agreement at any time upon notice to Websense. However, Subscriber is not entitled to a refund of any prepaid or other fees. Websense may terminate this Agreement if Websense finds that Subscriber has violated the terms hereof. Upon notification of termination by either party, Subscriber agrees to uninstall any Software, cease using the Services and destroy or return all copies of the Software to Websense, and to certify in writing that all known copies thereof, including backup copies, have been destroyed. Sections 1, 5-9, 12 and 14 shall survive the termination of this Agreement. Upon notification of termination by either party or upon the expiration of the applicable Subscription Term, Websense may terminate provision of the Service at any time without further notice to Subscriber.
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Data Privacy
Subscriber warrants that it has complied with all applicable laws and regulations, including those of other jurisdictions that may apply to Subscriber, concerning the protection of personal data and, if relevant, Subscriber warrants that it has obtained the consent of its employees and users as to the Services, in particular, intercepting, reading, copying or filtering content transmitted to the Service. Neither party shall use, nor require the other party to use, any data obtained via the Service for any unlawful purposes. Subscriber agrees and accepts the terms and conditions as set forth in the Defensio Website Privacy Policy.
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Government Restricted Rights
The Services are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Services by the U.S. Government constitutes acknowledgment of Websense's proprietary rights therein. Contractor or Manufacturer is Websense.
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Third Party Products
The Services include software products licensed from third parties. Such third parties have no obligations or liability to the Subscriber under this Agreement but are third party beneficiaries of this Agreement.
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Export
Certain Services provided under the Agreement are subject to export controls administered by the United States and other countries (“Export Controls”). Export or diversion contrary to U.S. law is prohibited. U.S. law prohibits export or re-export of the software or technology to Cuba, Iran, North Korea, Sudan and Syria or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). Subscriber warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the software or technology for any Prohibited Uses; and that it will otherwise comply with Export Controls.
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General
Websense may periodically send Subscriber messages of an informational or advertising nature via email. Subscriber may choose to “opt-out” of receiving these messages by sending an email to optoutlegal@websense.com requesting the opt-out. Subscriber acknowledges and agrees that by sending such email and “opting out” it will not receive emails containing messages concerning upgrades and enhancements to Services. However, Websense may still send emails of a technical nature. Subscriber acknowledges that Websense may use Subscriber's company name only in a list of Websense customers. Subscriber may not transfer any of Subscriber’s rights to use the Services or assign this Agreement to another person or entity, without first obtaining prior written approval from Websense. Notices sent to Websense shall be sent to the attention of the General Counsel at 10240 Sorrento Valley Road, San Diego, CA 92121 USA. Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the federal laws of the United States and the laws of the State of California, USA for all claims arising in or related to the United States, Canada, or Mexico, and Dublin, Ireland for all other claims without regard to or application of choice of laws, rules or principles. Both parties herby consent to the exclusive jurisdiction of (1) the state and federal courts in San Diego, California, USA, for all claims arising in or related to the United States, Canada or Mexico, or (2) the competent courts in Dublin, Ireland for all other claims. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of god, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities. This Agreement constitutes the entire Agreement between the parties hereto. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. Websense is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Websense.
