BUY

Cloudmark Plugin License Agreement

ENTERPRISE LICENSE AGREEMENT FOR CLOUDMARK SOFTWARE

READ THIS INFORMATION SERVICES AND LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. THE SOFTWARE AND DATA DESCRIBED BELOW ARE BEING LICENSED TO CUSTOMER, ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL THE TERMS CONTAINED IN THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT AND ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER. CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT BY INSTALLING THE CLOUDMARK AUTHORITY SOFTWARE. IF YOU DO NOT AGREE TO THIS AGREEMENT, NEITHER YOU NOR CUSTOMER WILL BE AUTHORIZED TO ACCESS OR USE THE SOFTWARE, DATA OR SERVICES UNDER ANY CIRCUMSTANCES.

INFORMATION SERVICES AND LICENSE AGREEMENT

In consideration of the mutual promises contained herein the parties agree as follows.

  • 1. DEFINITIONS. For purposes of this Agreement, capitalized terms will have the meanings set forth below or defined elsewhere in this Agreement.
    • 1.1 "Agreement Effective Date" means the earliest Effective Date on a valid Sales Order Form.
    • 1.2 "Cloudmark" means Cloudmark, Inc., a Delaware corporation having its principal place of business at 128 King Street, 2nd Floor, San Francisco, CA 94107.
    • 1.3 "Cloudmark Authority Service" means the periodic provision by Cloudmark of updated sets of spamDNA Data and other data, as may be further described in a Sales Order Form and otherwise updated, upgraded, modified, changed, or enhanced by Cloudmark from time to time at its sole discretion, for use by Customer on Customer's Email Network, in conjunction with Cloudmark Authority Software, for identifying and filtering spam. The Cloudmark Authority Service does not and will not include features, options and modules developed and customized specifically for third parties and provided to such third parties on an exclusive basis, or features, options, modules and future products which Cloudmark licenses or provides separately.
    • 1.4 "Cloudmark Authority Software" or "Software" means the object code form of Cloudmark's software products designed to operate on customer networks and integrate data from the Cloudmark Authority Service, and any updates and upgrades to such software that are provided to Customer pursuant to a software support agreement (if any) entered into between the parties, or otherwise provided by Cloudmark at its sole discretion, and any documentation accompanying any of the foregoing software products.
    • 1.5 "Cloudmark Technology" means the Cloudmark Authority Service, including the spamDNA Data and other data provided therein, the Cloudmark Authority Software, and all other computer software, technology and/or documentation which is supplied by Cloudmark for use in or in connection with delivery of the Services, including without limitation all source code and object code therefor and all algorithms, ideas and Intellectual Property Rights therein.
    • 1.6 "Customer" means the legal entity identified in a Sales Order Form.
    • 1.7 "Customer's Email Network" means the email network operated by Customer using one or more mail servers and gateway MTAs located in Customer's facilities with email addresses assigned solely to Customer's employees and contractors, and selected vendors and customers. "Customer's Email Network" does not include any email network service or on-line service provided by or for Customer to third parties.
    • 1.8 "Effective Date" for a license means the date set forth on the Sales Order Form.
    • 1.9 "Enterprise License" means the license grant to the Software and spamDNA Data described in Section 3.2.
    • 1.10 "Evaluation License" means the license grant to the Software and spamDNA Data described in Section 3.1.
    • 1.11 "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
    • 1.12 "Sales Order Form" means the documentation sent by Cloudmark to Customer, whether in written or electronic form, which contains information regarding a license from Cloudmark to Customer. For an Evaluation License, the Sales Order Form will contain at minimum: Customer name and contact information, license type, Software version and Effective Date. For an Enterprise License, the Sales Order Form will additionally contain: payment terms, license restrictions, and other additional terms agreed upon between the parties.
    • 1.13 "Licensed Mail Account" means each unique email address on Customer's Email Network capable of receiving incoming email.
    • 1.14 "Services" means the Cloudmark Authority Service and any professional or other services provided by Cloudmark to Customer under this Agreement.
    • 1.15 "spamDNA Data" means the core statistical and algorithmic data that is produced by the Cloudmark Authority Service and input into the Cloudmark Authority Software so as to enable it to effectively process spam.
    • 1.16 "Term" shall have the meaning indicated in Section 9.
    • 1.17 "Web" means the World Wide Web, containing, inter alia, pages written in hypertext markup language (HTML) and/or any similar successor technology.
    • 1.18 "Web page" means a document on the Internet which may be viewed in its entirety without leaving the applicable distinct URL address.
    • 1.19 "Web site" means a collection of inter-related Web pages.
  • 2. PROVISION OF SERVICES; DELIVERY OF SOFTWARE.
    • 2.1 Cloudmark Authority Service. Subject to the terms and conditions of this Agreement, Cloudmark shall provide the Cloudmark Authority Service to Customer, such services to be provided substantially in accordance with any functionality specifications, performance criteria and limitations specified on a valid Sales Order Form. Customer may access the Cloudmark Authority Service under the terms of either an Evaluation License grant or an Enterprise License grant under this Agreement, as provided in a valid Sales Order Form. A Sales Order Form for an Evaluation License will be delivered to Customer along with the delivery of the Cloudmark Authority Software and is valid, and incorporated into this Agreement, upon acceptance of this Agreement by Customer. A Sales Order Form for an Enterprise License will be delivered by Cloudmark to Customer after mutual agreement between the parties upon the terms, and is valid when executed by both parties, and is thereby incorporated into this Agreement by reference. Only one Sales Order Form may be in effect at any time. A valid Sales Order Form with a later license Effective Date automatically terminates any prior Sales Order Form. Unless other specified in the Sales Order Form or mutually agreed by the parties, Cloudmark will inform Customer by email of the availability of updates to all spamDNA Data by email and such updates will be delivered electronically by web-based download.
    • 2.2 Delivery of Cloudmark Authority Software. Cloudmark will deliver the Cloudmark Authority Software listed on the Sales Order Form on or prior to the Effective Date or on such other date as may be mutually agreed by the parties. The Software will be delivered electronically and/or by CD media.
    • 2.3 Site Implementation. Customer, at its own expense, shall provide all disk storage, server capacity and other hardware and software required to run and maintain the Cloudmark Authority Software and to utilize the Cloudmark Authority Service.
    • 2.4 Support for Cloudmark Authority Service. Support and maintenance for the Cloudmark Authority Service and Software shall be provided by Cloudmark pursuant to, and subject to a separate software support agreement (if any) entered into between the parties.
    • 2.5 Other Services. Upon request, and provided that Customer is current with service fees due under this Agreement, Cloudmark may provide additional services beyond the services set forth herein. Any such additional service shall be mutually agreed by the parties and set forth in written work authorizations signed by both parties, shall be provided at Cloudmark's then applicable consulting rates and charges, and shall be deemed rendered pursuant to and in accordance with the terms of this Agreement. Work authorizations issued under this Agreement shall be sequentially numbered.
  • 3. LICENSE GRANTS; OWNERSHIP.
    • 3.1 Evaluation License Grant. The terms of this Section 3.1 are applicable ONLY during the term of a valid Sales Order Form for an Evaluation License. Subject to the terms and conditions of this Agreement (including the terms of the applicable Sales Order Form), Cloudmark hereby grants to customer a non-exclusive, nonsublicensable, nontransferable (except in accordance with 11.3) license to:
      • (a) reproduce and use the Cloudmark Authority Software by installing and using the Software in a non-production environment for the sole purpose of evaluating the Software for Customer's internal business purpose;
      • (b) reproduce and use the spamDNA Data provided by Cloudmark as part of the Cloudmark Authority Service, in conjunction with the Cloudmark Authority Software in a non-production environment for the sole purpose of evaluating the Software for Customer's internal business purpose.
      The Evaluation License begins on the Effective Date set forth in the Sales Order Form for an Evaluation License and terminates upon the earlier to occur of: (a) the termination of this Agreement in accordance with its terms or (b) the commencement of an Enterprise License (as evidenced by a valid Sales Order Form for an Enterprise License).
    • 3.2 Enterprise License Grant. The terms of this Section 3.2 apply ONLY during the term of a valid Sales Order Form for an Enterprise License. Subject to the terms and conditions of this Agreement (including the terms of the applicable Sales Order Form and the payment of fees), Cloudmark hereby grants to Customer a non-exclusive, nonsublicensable, nontransferable (except in accordance with Section 11.3) license to.
      • (a) reproduce the Cloudmark Authority Software solely for the purpose of installing and using the Cloudmark Authority Software on Customer's Email Network for up to the maximum number of Licensed Mail Accounts specified in the Sales Order Form;
      • (b) reproduce and use the spamDNA Data provided by Cloudmark as part of the Cloudmark Authority Service, on Customer's Email Network in conjunction with the Cloudmark Authority Software to provide spam filtration for up to the maximum number of Licensed Mail Accounts specified in the Sales Order Form; and
      • (c) may make one backup copy of the Cloudmark Authority Software and spamDNA Data for archival or disaster recovery purposes.
      The Enterprise License begins on the Effective Date set forth in the Sales Order Form for an Enterprise License and terminates upon the termination of this Agreement in accordance with its terms.
    • 3.3 Limitations; Reservation of Rights. The licenses granted herein are granted solely to the Customer, and not, by implication or otherwise, to any parent, subsidiary or affiliate of such entity. Customer shall have no right to, and shall not, provide, distribute, resell, sublicense or otherwise provide Cloudmark Technology or services based on or using the Cloudmark Technology to third party. All rights not expressly granted hereunder are reserved to Cloudmark. Cloudmark shall have the right to audit Customer at reasonable times and upon reasonable notice, to verify Customer's compliance with the terms of this Agreement. This Agreement grants licenses only; neither Cloudmark Technology or nor any copy of it is sold by Cloudmark to Customer.
    • 3.4 Ownership of Cloudmark Technology. As between Customer and Cloudmark, Customer acknowledges that Cloudmark owns all right, title and interest in and to the Cloudmark Technology, and that Customer shall not acquire any right, title, and interest in or to the Cloudmark Technology, except for the licenses expressly set forth in this Agreement. Customer shall not remove, obscure, or alter Cloudmark's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Software. Customer shall not modify, adapt, translate, prepare derivative: works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Cloudmark Authority Software or spamDNA Data or any internal data files generated by the Cloudmark Authority Software or other Cloudmark Technology, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Customer has no obligation under this Agreement to submit email messages or other content to Cloudmark for use in identifying and developing spamDNA Data; however, if Customer does submit to Cloudmark any email messages or other content as spam or potential spam, then notwithstanding any other provision of this Agreement to the contrary Cloudmark shall be free to use such email message or other content for any purpose provided that it is not shown or provided to any other company or entity and Customer hereby assigns to Cloudmark any and all right, title and interest that Customer may have (including Intellectual Property Rights) in and to any such email messages or other content. "Cloudmark", "Cloudmark Authority", "Cloudmark Immunity", "spamDNA", "SafetyBar" and "SpamNet" are trademarks or service marks of Cloudmark, and nothing in this Agreement shall be deemed a license to Customer to use any of the trademarks or service marks.
    • 3.5 Nonexclusive Relationship. Customer understands that Cloudmark will provide the Services and Cloudmark Authority Software to Customer on a nonexclusive basis. Customer acknowledges that Cloudmark has customized and provided, and will continue to customize and provide its software and technology to other parties for use in connection with a variety of applications, including spam filtration services applications. Nothing in this Agreement will be deemed to limit or restrict Cloudmark from customizing for and providing its services, software and technology to other parties for any purpose or in any way affect the rights granted to such other parties, nor will anything in this Agreement be deemed to limit or restrict Customer from utilizing spam filtration services provided by other third parties.
  • 4. WARRANTIES AND DISCLAIMER.
    • 4.1 Cloudmark Warranties. Except with regard to any Cloudmark Technology or Services provided under an Evaluation License, Cloudmark warrants that, throughout the Term, the Cloudmark Technology and the Cloudmark Authority Services provided for Customer under an Enterprise License shall perform substantially in accordance with the performance criteria set forth on the Sales Order Form, if any. Cloudmark does not warrant that the Services will meet all of Customer's requirements or that performance of the Services or use of the Cloudmark Authority Software will be uninterrupted or error-free. Customer acknowledges that content and form of spam are varied and ever-changing and that Cloudmark does not warrant that Cloudmark Technology will filter all spam or will not in some cases filter content that Customer or its users may not consider to be spam.
    • 4.2 Cloudmark Obligations. Cloudmark's sole obligation under the foregoing warranties is to use reasonable efforts to correct any portion of the Cloudmark Technology or Services that does not meet the foregoing warranties within a reasonable period of time after notice by Customer thereof, and if Cloudmark fails to do so, then Customer shall have the right, as it sole remedy, to immediately terminate this Agreement and receive as a sole remedy a refund of the unamortized portion of amounts advanced by Customer for Services to be rendered following the date of such termination.
    • 4.3 Disclaimer. THE CLOUDMARK TECHNOLOGY AND SERVICES PROVIDED TO CUSTOMER UNDER AN EVALUATION LICENSE IS PROVIDED TO CUSTOMER GRATUITOUSLY AND THEREFOR IS PROVIDED "AS IS" WITH ALL FAULTS. EXCEPT AS EXPRESSLY STATED IN SECTION 4.1, CLOUDMARK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT. WITHOUT LIMITATION, CLOUDMARK MAKES NO WARRANTIES WHATSOEVER REGARDING THE NATURE OF THE MATERIAL CONTAINED IN CLOUDMARK TECHNOLOGY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR SUCH MATERIAL. CUSTOMER ASSUMES THE RISK OF ANY LOSS RELATED TO ANY RESPONSE TO ANY EMAIL OR SERVICES ADVERTISED IN ANY EMAIL RECEIVED FROM A THIRD PARTY.
  • 5. PAYMENTS.
    • 5.1 Service Fees. Customer shall pay Cloudmark service fees in the amount and on terms specified on each Sales Order Form. Notwithstanding anything contained in Section 5.1 to the contrary, Customer will not owe any fees to Cloudmark for an Evaluation License.
    • 5.2 Taxes. Customer shall be responsible for all sales taxes, use taxes, withholding taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Cloudmark's net income. When Cloudmark has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Cloudmark with a valid tax exemption certificate authorized by the appropriate taxing authority.
    • 5.3 Payment. All fees quoted and payments made hereunder shall be in U.S. Dollars. Customer shall pay all amounts due under this Agreement to Cloudmark at the address indicated at the beginning of this Agreement or such other location as Cloudmark designated in writing.
  • 6. CONFIDENTIALITY.
    • 6.1 Definition of Confidential Information. All information and documents disclosed or produced by either party in the course of this Agreement which are disclosed in written form and identified by a marking thereon as proprietary, or oral information which is defined at the time of disclosure and confirmed in writing within twenty (20) business days of its disclosure, shall be deemed the "Confidential Information" of the disclosing party. Notwithstanding the above, the parties agree that any information (in any form, whether in tangible or intangible) relating to the Cloudmark Technology, including but not limited to Cloudmark Technology performance results, is considered Confidential Information of Cloudmark.
    • 6.2 Treatment of Confidential Information. Each party agrees to protect the other party's Confidential Information in the same manner as such party protects its own Confidential Information of substantially similar proprietary value, but in no case less than with reasonable care. Each party agrees that it will use the Confidential Information of the other party only for the purposes of this Agreement and that it will not divulge, transfer, sell, license, lease, or otherwise disclose or release any such information or documents to third parties, with the exception of (i) its employees or subcontractors who require access to such for purposes of carrying out such party's obligation hereunder and (ii) persons who are employed as auditors by a public accounting firm or by a federal or state agency. Each party will use reasonable efforts to advise any person obtaining Confidential Information that such information is proprietary and to obtain a written agreement obligating such person to maintain the confidentiality of any Confidential Information belonging to the party or its suppliers.
    • 6.3 No Other Confidential Information. Neither party shall have any obligation under this Section 6 for information of the other party which the receiving party can substantiate with documentary evidence that has been or is (i) developed by the receiving party independently and without the benefit of information disclosed hereunder by the disclosing party; (ii) lawfully obtained by the receiving party from a third party without restriction and without breach of this Agreement; (iii) publicly available without breach of this Agreement; or (iv) known to the receiving party prior to its receipt from the disclosing party.
  • 7. INDEMNIFICATION.
    • 7.1 Cloudmark Indemnification. Except with regard to any Cloudmark Technology or Services provided under an Evaluation License, Cloudmark shall defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against Customer to the extent such claim (i) alleges the Cloudmark Authority Software or spamDNA Data or other data comprising the Cloudmark Authority Service infringes any third party copyrighted subject matter, third party patents or third party trade secrets, or (ii) relates to the Services provided by Cloudmark hereunder and alleges facts which, if true, would constitute a breach of any warranty, representation or covenant made by Cloudmark under Section 4.1 of this Agreement; provided that Customer promptly notifies Cloudmark in writing of any such claim and promptly tenders the control of the defense and settlement of any such claim to Cloudmark at Cloudmark's expense and with Cloudmark's choice of counsel. Customer shall cooperate with Cloudmark, at Cloudmark's expense, in defending or settling such claim and Customer may join in defense with counsel of its choice at its own expense. Cloudmark shall not reimburse Customer for any expenses incurred by Customer without the prior written approval of Cloudmark. Cloudmark shall have no obligation under this Section 7.1 with respect to any claim based upon or arising from (a) the combination of the Cloudmark Authority Software or spamDNA Data or other data comprising the Cloudmark Authority Service with any software, data, content or equipment not supplied by Cloudmark, (b) modification of the Cloudmark Authority Software or spamDNA Data or other data comprising the Cloudmark Authority Service by any person or entity other than Cloudmark or (c) any use of the Cloudmark Authority Software or spamDNA Data or other data comprising the Cloudmark Authority Service outside the scope of the license granted in or contrary to the provisions of this Agreement.
    • 7.2 Customer Indemnification. Customer shall defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against Cloudmark to the extent such claim relates to Customer Email Network or representations, claims or statements or acts or omissions of Customer pertaining thereto, other than claims for which Cloudmark is obligated to defend Customer under Section 7.1; provided that Cloudmark promptly notifies Customer in writing of any such claim and promptly tenders the control of the defense and settlement of any such claim to Customer at Customer's expense and with Customer's choice of counsel. Cloudmark shall cooperate with Customer, at Customer's expense, in defending or settling such claim and Cloudmark may join in defense with counsel of its choice at its own expense. Customer shall not reimburse Cloudmark for any expenses incurred by Cloudmark without the prior written approval of Customer.
  • 8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF CLOUDMARK AND THEIR LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT CLOUDMARK HAS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES, CLOUDMARK AND THEIR LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT IT WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CUSTOMER ASSUMES THE RISK OF ANY LOSS RELATED TO ANY RESPONSE TO ANY EMAIL OR SERVICES ADVERTISED IN ANY EMAIL RECEIVED FROM A THIRD PARTY.
  • 9. TERM AND TERMINATION.
    • 9.1 Term. The term of this Agreement (the "Term") shall commence on the Agreement Effective Date:
      • (a) If the initial, valid Sales Order Form is for an Evaluation License, the Agreement shall continue in force for an initial term of the later of thirty (30) days from the Agreement Effective Date or the datestated on the applicable Sales Order Form. At the end of the initial term, this Agreement will automatically terminate unless a valid Sales Order Form for an Enterprise License with an Effective Date prior to the end of the Trial Period is in effect, in which case, upon the expiration of the initial term, or any renewal term, the Term shall be automatically extended for successive one (1) year renewal terms from the Effective Date on the Sales Order Form for the Enterprise License, unless either party shall give written notice to the other party no later than thirty (30) days prior to the expiration of the initial or then-current renewal that it does not wish to renew;
      • (b) If the initial, valid Sales Order Form is for an Enterprise License, the Agreement shall continue in full force for an initial term as specified in the Sales Order Form. Upon the expiration of the initial term, or any renewal term, the Term shall be automatically extended for successive one (1) year renewal terms from the Effective Date for the Enterprise License as stated on the valid Sales Order Form, unless either party shall give written notice to the other party no later than thirty (30) days prior to the expiration of the initial or then-current renewal that it does not wish to renew.
    • 9.2 Termination for Breach. Either party may suspend performance and/or terminate this Agreement if the other party materially breaches any term or condition of this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach.
    • 9.3 Termination due to Warranty. Customer may terminate this Agreement in accordance with the provisions of Section 4.2.
    • 9.4 Termination due to Insolvency. Either party may suspend performance and/or terminate this Agreement if the other party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing, or has a trustee or receiver appointed for its business or assets or any party thereof.
    • 9.5 Effect of Termination. Upon the termination of this Agreement for any reason (i) all license rights granted herein shall terminate, (ii) Customer shall immediately pay to Cloudmark all amounts due and outstanding as of the date of such termination or Cloudmark shall refund to Customer the unamortized portions of all amounts not earned as of the date of such termination, and (iii) each party shall return to the other party, or destroy and certify the destruction of, all Confidential Information of the other party.
    • 9.6 Survival. In the event of any termination or expiration of this Agreement for any reason, Sections 1, 2.5, 3.3, 3.4, 4.3, 5, 6, 7, 8, 9.4, 10 and 11 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.
  • 10. EXPORT REGULATIONS. Customer shall comply with all applicable export laws and regulations of the United States, the country in which Customer is located or the Software is used, and any other country having competent jurisdiction.
  • 11. MISCELLANEOUS.
    • 11.1 Capacity. Each party represents and warrants that it has full power to enter into and perform this Agreement, and the person signing this Agreement on either party's behalf has been duly authorized and empowered to enter in such agreement. Each party further acknowledges that it has read this Agreement, understands it and agrees to be bound by it. Each party acknowledges that such party has not been induced to enter into such agreements by any representations or statements, oral or written, not expressly contained herein or expressly incorporated by reference.
    • 11.2 Notice. Any notice required for or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by overnight courier upon written verification of receipt, (iii) by telecopy or facsimile transmission when confirmed by telecopier or facsimile transmission report, or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. All notices must be sent to the address described in the applicable Sales Order Form if to Customer, and addressed to Attention: General Counsel; and if to Cloudmark, sent to the address first described above and addressed to Attention: President, or to such other address that the receiving party may have provided for the purpose of notice in accordance with this Section.
    • 11.3 Assignment. Neither party may assign its rights or delegate its obligations under this Agreement without the other party's prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of this Agreement.
    • 11.4 No Third Party Beneficiaries. All rights and obligations of the parties hereunder are personal to them. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
    • 11.5 Governing Law: Arbitration. This Agreement shall be governed by the laws of the State of California, USA, excluding conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. Any disputes arising out of this Agreement shall be resolved by binding arbitration in San Francisco, California in accordance with the rules of the American Arbitration Association. Notwithstanding the above, either party may apply to a court of competent jurisdiction for injunctive or equitable relief.
    • 11.6 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
    • 11.7 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, telecommunications outages, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party.
    • 11.8 Compliance with Law. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.
    • 11.9 Waiver. The failure of either party to require performance by the other party of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
    • 11.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
    • 11.11 Remedies. Each party acknowledges that its breach of the confidentiality or service/license restrictions contained herein may cause irreparable harm to the other party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which the other party may be legally entitled, such party shall have the right to seek immediately injunctive relief in the event of a breach of such sections by the other party or any of its officers, employees, consultants or other agents.
    • 11.12 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph, or in any way affect such agreements.
    • 11.13 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
    • 11.14 Entire Agreement. This Agreement, and valid Sales Order Forms, constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof. To the extent the terms of a Sales Order Form conflicts with or contradicts the terms of this Agreement, the terms of the Sales Order Form will prevail. Any amendments to this Agreement must be in writing and executed by an officer of the parties.
    • 11.15 Publicity. The parties agree to cooperate with each other in all press releases and other publicity regarding the execution of this Agreement and the performance thereunder. The parties shall jointly determine the content, timing and necessity of all press releases regarding this Agreement. Cloudmark has the right to display the Customer's name and logo in promotional literature and/or on the Cloudmark website.

YOU, AS CUSTOMER, ACCEPT AND AGREE TO BE BOUND BY THE AGREEMENT SET FORTH ABOVE BY INSTALLING THE CLOUDMARK AUTHORITY SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU MUST DELETE THE CLOUDMARK AUTHORITY SOFTWARE.