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Proofpoint Essentials End User License Agreement
Last Modified Date: May 2013

Welcome to Proofpoint Essentials! The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, this “Agreement”), governs the activities of anyone using and/or accessing Proofpoint Essentials (“you” or “Customer”) and is entered into with Proofpoint NI Limited (“Proofpoint”). Please read this Agreement before you use or access Proofpoint Essentials. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity. By clicking to accept or agree to this Agreement when this option is made available to you, you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by these terms and conditions. If you have entered into a separate written agreement with Proofpoint, that written agreement will govern your relationship with Proofpoint. Proofpoint may revise and update this Agreement from time to time in its sole discretion by posting such modifications to this Agreement on the website for Proofpoint Essentials with the effective date posted on the top of the Agreement, “Last Modified Date”. Your continued activity as a Customer following the posting of revised Agreement means that you accept and agree to the changes. If the modified Agreement is not acceptable to you, your only recourse is to cease using Proofpoint Essentials and being a Customer. All changes are effective immediately when Proofpoint posts them, and apply to all Customer activities thereafter.

Definitions

“Active Users” means the number of users provisioned on the Service for purposes of email filtering or interface access and as counted by the Service. Aliases, distribution groups and other functional accounts are not counted so long as they are properly configured as such in the Service.

“Channel Partner”: means a third-party authorized by Proofpoint to resell and/or provide the Service to Customer.

“Confidential Information” has the meaning set forth in Section 10.

“Mailbox” means a separate account on Customer’s e-mail server for sending or receiving messages or data within Customer’s e-mail system or network. Aliases and distribution lists shall not be counted as separate mailboxes provided each person who has access to such aliases and distribution lists has a separate account on Customer’s email server for the receipt of messages or data within Customer’s e-mail system or network.

“Open Relay”: means an email server configured to receive email from an unknown or unauthorized third party and forward the email to one or more recipients that are not users of the email system to which that email server is connected. Open Relay may also be referred to as “spam relay” or “relay”;

“Purchase Order” means an ordering document for the Service(s) and may take the form of a purchase order issued by Customer or Channel Partner. Each Purchase Order shall reference this Agreement and will be subject to this Agreement.

“Service(s)” means any Proofpoint products licensed on a hosted basis as software as a service pursuant to the Purchase Order. A general description of the available Service(s) is provided in Schedule 1.

“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.

Supply of Service and Grant of License

Subject to the terms and conditions of this Agreement, Proofpoint hereby grants to the Customer a non-exclusive, non-transferable, limited term right to use the Service for the permitted number of Mailboxes for the term, and solely for Customer’s own internal business purposes.

As between Customer and Proofpoint, Customer is responsible for all activities conducted by its users under its Mailbox accounts. Customer specifically agrees to limit the use of the Services to those parameters set forth in the applicable Purchase Order. Without limiting the foregoing, Customer specifically agrees not to: (i) resell, sublicense, lease, time-share or otherwise make the Services available to any third party; (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, a Service or the data contained therein; (iii) modify, copy or create derivative works based on a Service; (iv) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from a Service, in whole or in part; (v) access a Service for the purpose of building a competitive product or service or copying its features or user interface; (vi) use a Service, or permit it to be used, for purposes of: (a) product evaluation, benchmarking or other comparative analysis intended for publication outside the Customer organization without Proofpoint’s prior written consent; (b) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (c) violation of any law, statute, ordinance, or regulation (including, but not limited to, the laws and regulations governing export/import control, unfair competition, anti-discrimination, and/or false advertising); (d) propagation of any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; and/or (e) filing copyright or patent applications that include the Services. Services are for use with normal business messaging traffic only, and Customer shall not use the Services for the machine generated message delivery of bulk or unsolicited emails or e-mails sent from an account not assigned to an individual.

Proofpoint reserves the right both prior to the provisioning of the Service and at any time during the supply of the Service to test whether the Customer’s systems allow Open Relay. If at any time the Customer’s systems are found to allow Open Relay, Proofpoint will inform the Customer and reserves the right to withhold provision of or suspend all or part of the Service immediately and until the problem has been resolved.

If at any time the Customer’s email systems are found to be being used for bulk email or spam, Proofpoint will inform the Customer and reserves the right to withhold provision of or suspend all or part of the Service immediately and until such use is terminated.

If at any time continued provision of the Service would compromise the security of the Service due, without limitation, to hacking attempts, denial of service attacks, mail bombs or other malicious activities either directed at or originating from the Customer’s domains the Customer agrees that Proofpoint may temporarily suspend Service to the Customer. In such an event, Proofpoint will promptly inform the Customer.

Proofpoint reserves the right having given the Customer seven (7) days prior written notice to temporarily suspend Service to the Customer in cases of late or non-payment of Proofpoint and/or Channel Partner invoices.

Customer acknowledges and agrees that Proofpoint may provide the Service from any hardware installation forming part of the Service anywhere in the world and may, at anytime, transfer the provision of the Service from one installation to another. Proofpoint does not guarantee that any such installation, or part thereof, is dedicated to the sole use of the Customer.

In order to fulfill its obligations in managing the Service, Proofpoint may at any time amend the Service and any documentation relating thereto for any reason including, but not limited to: legal; safety; business; or technical considerations.

Should the Service be suspended or terminated for any reason whatsoever, Proofpoint shall reverse all configuration changes made upon provisioning the Service and it shall be the responsibility of the Customer to undertake all other necessary configuration changes to their mail servers, and to inform their ISP of the need to reroute inbound email.

The Customer understands that the Service is supplied for an entire domain and can only be used by a full internet domain. The Customer further undertakes to register all required email addresses with the Proofpoint platform and understand that non-registered email address will not be accepted by Proofpoint.

Customer’s Obligations

In consideration of Proofpoint supplying the Service to the Customer, the Customer shall pay Proofpoint or Channel Partner charges in accordance with Section 4.

The Customer will provide Proofpoint with all contact information, technical data and all other information Proofpoint may reasonably request from time to time to allow Proofpoint to supply the Service to the Customer and all Mailboxes at its registered domains. All information the Customer supplies will be complete, accurate and given in good faith. Such information will be treated as Customer Confidential Information under the terms of this Agreement.

The Customer shall not allow its email platform to:

Act as an Open Relay, or

Send or receive Bulk Email; or

Send Spam

Should the Customer fail to meet these obligations, in addition to Proofpoint rights to suspend all or part of the Service, Proofpoint reserves the right to charge the Customer at Proofpoint’ then current rates for any remedial work which becomes necessary as a direct result of the Customer’s failure to meet these obligations.

The Customer recognizes that information sent to and from the Customer will pass through the Service and accordingly the Customer agrees that the Customer will use the Service for legitimate business purposes and:

comply with all relevant legislation;

conform to the protocols and standards applicable to the Internet; and

indemnify Proofpoint against any liability to third parties resulting from information passing through the Service from the Customer.

The Customer agrees that the Customer will not use the Service for any unlawful purpose or in breach of any laws. These prohibited uses include, but are not limited to:

civil and criminal offences of copyright and trademark infringement; or

transmission or display or posting to a bulletin board of obscene, indecent or pornographic material; or

commission of any criminal offence; or

any transmission or display or publication of any material which is of a defamatory, offensive, abusive, or menacing character to any other person;

transmission or display or publication of any material in breach of the any rules, laws or regulations dealing with data protection or similar legislation in any other country or of any material which is confidential or is a trade secret; or

use of the Service in any manner which is a violation or infringement of the rights of any individual, organization or company anywhere worldwide.

The Customer agrees to indemnify Proofpoint against all and any losses, costs and expenses Proofpoint may incur as a result of any breach by the Customer of Section 3.5. In addition to Proofpoint’ termination rights set out in Section 9 below, Proofpoint may, at any time and at Proofpoint sole option, suspend the all or part of the Service until the Customer gives suitable undertakings and provides security in terms satisfactory to Proofpoint to comply with the Customer’s obligations hereunder or terminate the Service if the Customer is in breach of any of the obligations set out herein.

Charges and Payment

The charges to be paid by the Customer to Channel Partner or directly to Proofpoint for the Service are shown on the Customer invoice or if no charges are shown in the Customer invoice then at the Channel Partner’s or Proofpoint’s then current standard rates. No refunds will be made.

Charges for the Service shall relate to the ACTUAL number of Active Users provisioned on the Service (“Licensed Usage”). The initial invoice may relate to the number of registered Mailboxes declared by the Customer upon ordering the Service.

Proofpoint will monitor the Customer’s ACTUAL usage of the Service and if the actual number of Mailboxes or domains being scanned exceeds the Licensed Usage, Proofpoint will increase the Licensed Usage accordingly. Where Proofpoint increases the Licensed Usage, Proofpoint will at its sole option raise additional invoices and/or make adjustments to subsequent invoices to cover charges for the increase in Licensed Usage on a pro-rata basis for the remaining part of the current agreed period.

At the expiry of each minimum period of contract less 30 days, unless otherwise notified by the Customer, each subsequent invoice shall relate to the Licensed Usage.

Proofpoint and/or Channel Partner shall invoice the Customer monthly, in arrears, on or shortly after charging commences and thereafter upon each month thereafter until termination. The Customer shall pay the full amount invoiced to it by Proofpoint and/or Channel Partner in within ten (10) days of the date of the invoice.

Customer or Channel Partner shall not use the Service’s alias functionality to consolidate multiple Mailboxes under a single Active User. At no time should the number of Actual Users be less than the number of Mailboxes being actively scanned by the Service

When domains are added to the Service or removed from the Service whether during the initial set up or for subsequent changes to the Service, a setup charge per domain may be levied to cover administration costs.

Proofpoint may vary the charges for the Service and the Customer will pay such charges. Proofpoint will give the Customer at least thirty (30) days written notice of any increase in charges. No increase in charges will take place during the minimum period or after the Customer has given notice to terminate this Agreement in accordance with its terms. Such notification will be via email and sent to the admin or billing contact if different.

The Customer shall not be entitled by reason of any set-off, counter-claim, abatement or other similar deduction to withhold payment of any amount due to Proofpoint and/or Channel Partner. All payments made are non-refundable.

Interest shall be chargeable on any amounts overdue at the rate of one and a half percent (1.5%) per month or part thereof to run from the due date for payment until receipt by Proofpoint in full of the outstanding amount whether or not after judgment and without prejudice to any other right or remedy of Proofpoint including the recovery of costs incurred in pursuing the outstanding debt. The charges shown in this Agreement are exclusive of any value added and other applicable taxes. Customer will be liable for payment of all Taxes that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. Proofpoint may be required to collect and remit Taxes from Customer, unless Customer provides Proofpoint with a valid tax exemption certificate. The amounts received by Proofpoint, after the provision for any Tax or withholding required by any country, will be equal to the amounts specified on the Purchase Order. In no event will either party be responsible for any taxes levied against the other party’s net income.

Proofpoint Warranties

Proofpoint will provide the Service in accordance with the Service Description contained in Schedule 1 hereto.

To the extent permitted by law, the foregoing conditions are In lieu of and exclude all other express and implied warranties, conditions and other terms, including but not limited to warranties of merchantability, satisfactory quality and fitness for a particular purpose. PROOFPOINT AND PROOFPOINT LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INCLUDING WITHOUT LIMITATION REGULATORY COMPLIANCE, PERFORMANCE, ACCURACY, RELIABILITY, AND NONINFRINGEMENT. PROOFPOINT DOES NOT WARRANT THE ACCURACY OF THE INTENDED EMAIL BLOCKING OF ANY MAIL MESSAGE, THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT NO EMAIL WILL BE LOST OR THAT THE SERVICES WILL NOT GIVE FALSE POSITIVE OR FALSE NEGATIVE RESULTS OR THAT ALL SPAM AND VIRUSES WILL BE ELIMINATED OR THAT LEGITIMATE MESSAGES WILL NOT BE OCCASIONALLY QUARANTINED AS SPAM. PROOFPOINT DOES NOT WARRANT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER.

Limitation of Liability

PROOFPOINT’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES DUE AND PAYABLE BY CUSTOMER TO PROOFPOINT DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT CAUSING SUCH LOSS PER EVENT OR SERIES OF CONNECTED EVENTS.

IN NO EVENT SHALL PROOFPOINT OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

Intellectual Property Rights. As between the parties, Proofpoint retains all title, intellectual property and other ownership rights throughout the world in and to the Services and service offering. Customer retains all title, intellectual property and other ownership rights in all Customer Data, Customer Confidential Information and all data, text, files, output, programs, information, or other information and material that Customer provides, develops, or makes available or uses in conjunction with any Service offering. Customer’s rights to use the Services shall be limited to those expressly granted in this Agreement. Customer is not authorized to use (and shall not permit any third party to use) the Services or any portion thereof except as expressly authorized by this Agreement or the applicable Purchase Order. There are no implied rights and all other rights not expressly granted herein are reserved. No license, right or interest in any Proofpoint trademark, copyright, trade name or service mark is granted hereunder. Customer shall not remove from any full or partial copies made by Customer of the Services any copyright or other proprietary notice contained in or on the original, as delivered to Customer.

Intellectual Property Rights Indemnity

Proofpoint will (i) defend and indemnify Customer against any suit or proceeding by a third party to the extent based on a rightful claim that the applicable Service(s) in the form created and provided by Proofpoint and sold to Customer pursuant to this Agreement (the “Indemnified Product(s)”) directly infringes any valid U.S. patent or U.S. copyright, or misappropriates any valid trade secret enforceable under the laws of the United States or a jurisdiction thereof, and (ii) pay any damages finally awarded in such suit or proceeding as a result of such claim (or pay any settlement of such claim), provided that Customer will promptly notify Proofpoint in writing of the third party claim, suit or proceeding (in any event, within thirty (30) days after Customer becomes aware or reasonably should have been aware of such claim); authorizes and allows Proofpoint to have sole control of the defense and/or settlement of the claim; and provides any information, assistance and other cooperation reasonably requested by Proofpoint in connection with the claim, suit or proceeding. In the event of a claim relating to an Indemnified Product, Proofpoint will, at its sole option and expense: (a) procure for Customer the right to use the Indemnified Products under the terms of this Agreement; (b) replace or modify the Indemnified Products to be (or to make it more likely to be) non-infringing; or (c) if the foregoing options are not reasonably practicable, then Proofpoint may terminate Customer’s rights to use Indemnified Products and refund all amounts paid by Customer to Proofpoint attributable to Customers’ future usage or access to the Indemnified Products hereunder. Proofpoint shall have no liability for, and the aforementioned Proofpoint obligations shall not apply to any claim based on or relating to (1) the use of the Indemnified Products in combination with any other product, service or device, if such infringement claim would have been avoided by the use of the Indemnified Products without such other product, service or device; (2) any modification or adaptation to the Indemnified Products; (3) use of an Indemnified Products other than as expressly authorized pursuant to this Agreement; (4) use of the Indemnified Products by Customer after Proofpoint has made available to Customer a modified version or replacement for the Indemnified Products or has provided notice to Customer that a claim of infringement has been or may be made with respect to the Indemnified Product; or (5) specifications, instructions, features, functions or designs or other elements provided by or requested by Customer. The foregoing is the sole and exclusive remedy of Customer and the entire liability of Proofpoint with respect to any infringement or claim of infringement of any third party intellectual property right.

Termination

Without prejudice to any other rights to which it may be entitled, either party may terminate this Agreement with immediate effect:

within thirty (30) days from the date the Service is made available to the Customer; or

if the other party commits any material breach of any of the terms herein and (If such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified under this Section 9.1.2 of the breach, such notice to refer to the notifying party’s intent to terminate this Agreement unless the breach is remedied; or

if an order is made or a resolution Is passed for the winding up of the other party or If an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or if a receiver, administrator or administrative receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; or

if there is a change of control of the Customer.

Proofpoint as an alternative to Section 9.1.1 or during the thirty (30) day period specified in Section 9.1.1. may suspend the provision of the Service to the Customer with immediate effect if: (i) the Customer is in material breach of any obligation in this Agreement; or (ii) the Customer allows Open Relay to occur or; (iii) the Customer is sending bulk mail through the outbound relay service.

Termination of this Agreement shall be without prejudice to any rights or liabilities accrued at the date of termination. In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, as well as any accrued rights to payment shall remain in effect beyond such termination or expiration until fulfilled.

Confidentiality

As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or the like, or, that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in and Purchase Order), the Service(s), software, business and marketing plans, technology and technical information, product designs, and business processes.

“Confidential Information” shall not include information that (i) is or becomes a matter of public knowledge through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure without restriction on disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party that lawfully and rightfully possesses such information without restriction on disclosure; (iv) information that the Receiving Party can document resulted from its own research and development, independent of receipt of the disclosure from the Disclosing Party; or (v) is disclosed with the prior written approval of the Disclosing Party.

Receiving Party shall not (i) disclose any Confidential Information of the Disclosing Party to any third party, except as otherwise expressly permitted herein or (ii) use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement or in any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States, except with Disclosing Party’s prior written consent. The Receiving Party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and to take all precautions to protect such Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like nature, but in no case shall the Receiving Party employ less than reasonable precautions. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information. This Agreement will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, the responding party shall give prompt written notice to the other party to enable the other party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible.

The Receiving Party will return all copies of the Disclosing Party’s Confidential Information upon the earlier of (i) the Disclosing Party’s request, or (ii) the termination or expiration of this Agreement. Instead of returning such Confidential Information, the Receiving Party may destroy all copies of such Confidential Information in its possession; provided, however, the Receiving Party may retain a copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in the strictest confidence for so long as the Confidential Information remains in the possession of the Receiving Party.

The parties acknowledge and agree that the confidentiality obligations set forth in this Agreement are reasonable and necessary for the protection of the parties’ business interests, that irreparable injury may result if they are breached, and that in the event of any actual or potential breach of Section 10, that the non-breaching party may have no adequate remedy at law and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by a court of competent jurisdiction.

Proofpoint recognize and confirm that the content of all emails sent to or received from the Customer by the Service is Customer Confidential Information. However, Proofpoint reserve the right to utilize the virus-related content of such email or its attachments solely for the purposes of: (i) maintaining and improving the performance and the integrity of the Service; (ii) complying with all regulatory, legislative or contractual requirements; and (iii) making available to licensors of the Service any information passing through the Service which may be of interest to the licensors solely for the purpose of further developing and enhancing the Service. Where Proofpoint exercise the foregoing rights Proofpoint will use all reasonable endeavors to keep confidential all information received from the Customer or for the Customer In connection with the Service.

Miscellaneous.

Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.

Nothing in this Agreement is intended to confer on a person any right to enforce any term of this Agreement which that person would not have had but for the Contract (Rights of Third Parties) Act 1999. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.

Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Service(s) and Proofpoint Confidential Information and any media, to assure that the Service(s), Proofpoint Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.

The Customer shall take all necessary measures to ensure that it, and all its employees, is aware of any responsibilities they have in respect of data protection and privacy laws and/or regulations and as Proofpoint has no control or influence over the content of the emails processed by the Service the Customer shall hold Proofpoint harmless for any claims by any party relating thereto further to the customer acknowledges they must inform all users of the system of the monitoring capabilities of Proofpoint and specifically the ability of the company to monitor emails of end users. As required by law, the Customer shall use all reasonable efforts to ensure it Informs (for example via a banner message on emails) those who use any communications system covered by the Service, that communications transmitted through such system maybe intercepted, and indicate the purposes of such interception. The Customer shall hold Proofpoint harmless from any claims from its employees, any third party and/or governmental agencies relating to such interceptions. The Customer shall not use, or require Proofpoint to use, any data obtained via the Service for any unlawful purposes.

This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. Notwithstanding the foregoing, Proofpoint may at its sole option at any time vary the terms of this Agreement by giving not less than seven (7) days’ notice in writing, which may be provided in the form of an updated Agreement on the site for the Services. Notwithstanding any language to the contrary therein, any Purchase Order issued by Customer or Channel Partner shall be deemed a convenient order and payment device only and no terms stated in any Purchase Order or in any other order document shall be incorporated into this Agreement, and all such terms shall be void and of no effect.

No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. The parties’ rights and remedies under this Agreement are cumulative.

Customer is not entitled to transfer or assign this Agreement without Proofpoint’s prior written consent.

Any notice required to be given pursuant to this Agreement shall be in writing and shall be given by delivering the notice by hand, or by sending the same by prepaid first class post (airmail if to an address outside the country of posting) to Proofpoint at Proofpoint NI Limited, 892 Ross Drive, Sunnyvale, CA 94089 Attn: Legal Department and to Customer at the address set out in its account information or such other address as either party notifies to the other from time to time. Any notice given according to the above procedure shall be deemed to have been given at the time of delivery (if delivered by hand) and when received (if sent by post).

This Agreement shall be governed and construed under the laws of California without reference to conflict of law principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Jurisdiction and venue of any dispute or court action arising from or related to this Agreement or the Service(s) shall lie exclusively in or be transferred to the courts the County of Santa Clara, California, and/or the United States District Court for the Northern District of California. Customer hereby consents and agrees not to contest, such jurisdiction, venue and governing law. Notwithstanding the foregoing, (i) if Customer’s corporate headquarters is located in Canada, this Agreement is governed by the laws of the Province of Ontario, Canada. In such case each of the parties to this Agreement irrevocably attorns to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation that may arise under this Agreement in the courts located in the Judicial District of York, Province of Ontario; and (ii) if Customer’s corporate headquarters is located in the European Union, this Agreement is governed by the laws of England and Wales. In such case each of the parties to this Agreement irrevocably attorns to the jurisdiction of the courts of London, England and further agrees to commence any litigation that may arise under this Agreement in the courts of London, England. Notwithstanding the foregoing nothing herein shall preclude either party from seeking injunctions from any court of competent jurisdiction in order to protect its intellectual property rights or Confidential Information.

The Customer agrees that Proofpoint may use the Customer’s company name, logo and testimonial (if such testimonial is provided) in Proofpoint’ promotional material and communications including, but not limited to, proposals, presentations, website and corporate brochure.

Schedule 1
General Service Description

Proofpoint Essentials provides a email filtering, management, and compliance service offering inbound and outbound email traffic management at the internet level, email continuity and email archiving. The Service may be formed from the following elements:

Spam and phishing email detection and blocking

Virus and malware email detection and blocking

Content control

Emergency Inbox email continuity

Transport Level Security

Journal-based email archiving

The Service is provided twenty-four (24) hours per day, Seven (7) days per week from distributed Proofpoint Data Centers, and permanently monitored from Virtual Network Operation Centers (VNOC). All inbound and outbound email traffic must be routed through the Proofpoint Data Centers in order to be filtered.