EULA

Vircom modusCloud End User License Agreement

Last Modified Date: January 19, 2017

Welcome to Vircom’s modusCloud! 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 Vircom’s modusCloud, including Channel Partners that access the Services for purposes of provisioning modusCloud to end users (“you” or “End User”) and is entered into with Vircom (“Vircom”). Please read this Agreement before you use or access modusCloud. 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. If you have entered into a separate written agreement with Vircom, that written agreement will govern your relationship with Vircom. Vircom may revise and update this Agreement from time-to-time in its sole discretion by posting such modifications to this Agreement on https://www.vircom.com/eula/with the effective date posted on the top of the Agreement, “Last Modified Date”. Your continued activity/access as an End User of Vircom’s modusCloud following the posting of the 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 modusCloud and being an End User. All changes are effective immediately when Vircom posts them, and apply to all End User activities thereafter.

If you are using modusCloud for evaluation purposes, your use of modusCloud is only permitted on a limited user deployment basis and for the period of time limited by the authorized evaluation period. Notwithstanding any other provision in this Agreement, an evaluation license for Vircom’s modusCloud is provided “AS-IS” without indemnification, warranty, obligation to provide support, of any kind, express or implied.

Recitals

Vircom’s modusCloud provides an email filtering, management, and compliance service offering inbound and outbound email traffic management at the internet level, email continuity, email archiving, and other related services. The Service may be formed from the following elements: (1) Spam and phishing email detection and blocking; (2) Virus and malware email detection and blocking; (3) Content control; (4) Emergency Inbox email continuity; (5) Transport Level Security; and (6) Journal-based email archiving.

1. Definitions
   • 1.1 “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.
   • 1.2 “Channel Partner”: means a third-party authorized by Vircom to resell and/or provide the Service to End User.
   • 1.3 “Confidential Information”has the meaning set forth in Section 10.
   • 1.4 “Mailbox”means a separate account on End User’s e-mail server for sending or receiving messages or data within End User’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 End User’s email server for the receipt of messages or data within End User’s e-mail system or network.
   • 1.5 “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”;
   • 1.6 “Purchase Order”means an ordering document for the Service(s) and may take the form of a purchase order issued by End User or Channel Partner to Vircom. Each Purchase Order shall reference this Agreement and will be subject to this Agreement.
   • 1.7 “Service(s)”means any Vircom products licensed on a hosted basis as software as a service under this Agreement pursuant to the Purchase Order. A general description of the available Service(s) is provided herein under the Recitals section.
   • 1.8 “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.
2. Supply of Service and Grant of License
   • 2.1 Subject to the terms and conditions of this Agreement, Vircom hereby grants to the End User a non-exclusive, non-transferable, limited term right to use the Service for the permitted number of Active Users for the term, and solely for End User’s own internal business purposes.
   • 2.2 As between End User and Vircom, End User is responsible for all activities conducted by its users under its Mailbox accounts. End User specifically agrees to limit the use of the Services to those parameters set forth in the applicable Purchase Order. Without limiting the foregoing, End User 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 End User organization without Vircom’s prior written consent; (b) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (c)(d) filing copyright or patent applications that include the Services.
   • 2.3 Suspension of Services.
     • Vircom 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 End User’s systems allow Open Relay. If at any time the End User’s systems are found to allow Open Relay, Vircom will inform the End User 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 End User’s email systems are found to be being used for bulk email or spam, Vircom will inform the End User 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 End User’s domains the End User agrees that Vircom may temporarily suspend Service to the End User. In such an event, Vircom will promptly inform the End User.
     • Vircom reserves the right having given the End User seven (7) days prior written notice to temporarily suspend Service to the End User in cases of late or non-payment of Vircom and/or Channel Partner invoices.
     • Should the Service be suspended or terminated for any reason whatsoever, Vircom shall reverse all configuration changes made upon provisioning the Service and it shall be the responsibility of the End User to undertake all other necessary configuration changes to their mail servers, and to inform their ISP of the need to reroute inbound email.
   • 2.4 End User acknowledges and agrees that Vircom may provide the Service from any datacenter forming part of the Service anywhere in the world and may, at any time, transfer the provision of the Service from one installation to another. Vircom does not guarantee that any such installation, or part thereof, is dedicated to the sole use of the End User. If you are based in the United States then the Services will generally be provided from a datacenter within the United States, including any datacenter used for purposes of system failover. If you are based in a country in the European Union then the Services will generally be provided from a datacenter in a country within the European Union, including any datacenter used for purposes of system failover.
   • 2.5 In order to fulfill its obligations in managing the Service, Vircom 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.
   • 2.6 The End User understands that the Service is supplied for an entire domain and can only be used by a full internet domain. The End User further undertakes to register all required email addresses with the modusCloud platform and understand that non-registered email address will not be accepted by Vircom.
3. End User’s Obligations
   • 3.1 In consideration of Vircom supplying the Service to the End User, the End User shall pay Vircom charges (in accordance with Section 4) or Channel Partner charges.
   • 3.2 The End User will provide Vircom with all contact information, technical data and all other information Vircom may reasonably request from time to time to allow Vircom to supply the Service to the End User and all Mailboxes at its registered domains. All information the End User supplies will be complete, accurate and given in good faith. Such information will be treated as End User Confidential Information under the terms of this Agreement.
   • 3.3 The End User shall not allow its email platform to:
     • 3.3.1 Act as an Open Relay, or
     • 3.3.2 Send or receive Bulk Email or facilitate the machine generated message delivery of bulk or unsolicited emails or e-mails sent from an account not assigned to an individual; or
     • 3.3.3 Send Spam or propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; Should the End User fail to meet these obligations in connection to End User’s email platform, in addition to Vircom rights to suspend all or part of the Service, Vircom reserves the right to charge the End User at Vircom’s then current professional services rates for any remedial work which becomes necessary as a direct result of the End User’s failure to meet these obligations.

1. • 3.4 The End User recognizes that information sent to and from the End User will pass through the Service and accordingly the End User agrees that the End User will use the Service for legitimate business purposes and:
     • 3.4.1. comply with all relevant legislation and not violate 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);
     • 3.4.2. conform to the protocols and standards applicable to the Internet; and
     • 3.4.3. indemnify Vircom against any liability to third parties resulting from information passing through the Service from the End User.

1. • 3.5 The End User agrees that the End User will not use the Service for any unlawful purpose or in breach of any laws. These prohibited uses include, but are not limited to:
     • 3.5.1 civil and criminal offences of copyright and trademark infringement; or
     • 3.5.2 transmission or display or posting to a bulletin board of obscene, indecent or pornographic material; or
     • 3.5.3 commission of any criminal offence; or
     • 3.5.4 any transmission or display or publication of any material which is of a defamatory, offensive, abusive, or menacing character to any other person; or
     • 3.5.5 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
     • 3.5.6 use of the Service in any manner which is a violation or infringement of the rights of any individual, organization or company anywhere worldwide.

1. • 3.6 The End User agrees to indemnify Vircom against all and any losses, costs and expenses Vircom may incur as a result of any breach by the End User of Section 3.5 of this Agreement. In addition to Vircom’s termination rights set out in Section 9 below, Vircom may, at any time and at Vircom’s sole option, suspend the all or part of the Service until the End User gives suitable undertakings and provides security in terms satisfactory to Vircom to comply with the End User’s obligations hereunder or terminate the Service if the End User is in breach of any of the obligations set out herein.
   • 3.7 End User 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 Active Users be less than the number of Mailboxes being actively scanned by the Service.

4. Charges and Payment.
   • 4.1 The charges to be paid by the End User directly to Vircom for the Service are shown on the End User invoice issued by Vircom. If applicable Purchase Order was issued to Channel Partner then applicable charges to be paid are at the Channel Partner’s specific pricing offered to the End User. No refunds will be made.
   • 4.2 Charges for the Service shall relate to the number of provisioned users that are invoiced by Vircom or Channel Partner (“Licensed Usage”). The initial invoice may relate to the number of Mailboxes declared by the End User upon ordering the Service.
   • 4.3 Vircom will monitor the End User’s usage of the Service and if the actual number of Mailboxes (Active Users) being scanned exceeds the Licensed Usage, Vircom may increase the Licensed Usage accordingly. Where Vircom increases the Licensed Usage, Vircom, or the applicable Channel Partner, 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. End User shall promptly pay for any such subsequent invoices for End User’s increased Licensed Usage.
   • 4.4 At the expiry of each minimum period of contract less 30 days, unless otherwise notified by the End User, each subsequent invoice shall correspond to the current Licensed Usage.
   • 4.5 Vircom and/or Channel Partner shall invoice the End User for the entire annual subscription terms, in advance, on or shortly after charging commences and thereafter upon each year thereafter until termination. The End User shall pay the full amount invoiced to it by Vircom and/or Channel Partner in within the specific payment terms agreed to as stated on the invoice.
   • 4.6 Vircom may vary the charges for the Service and the End User will pay such charges. Vircom will give the End User 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 End User 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.
   • 4.7 The End User 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 Vircom and/or Channel Partner. All payments made are non-refundable.
   • 4.8 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 Vircom in full of the outstanding amount whether or not after judgment and without prejudice to any other right or remedy of Vircom 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. End User 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. Vircom may be required to collect and remit Taxes from End User, unless End User provides Vircom with a valid tax exemption certificate. The amounts received by Vircom, 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.

5. Vircom Warranties
   • 5.1 Vircom will provide the Service in accordance with the description for the Services contained in the Recitals section of this Agreement.
   • 5.2 The Services will meet the requirements set forth in the modusCloud Service Level Agreement (the “SLA”), as described on Vircom’s website at https://www.vircom.com/sla. In the event of a breach of the foregoing warranty, as End User’s sole and exclusive remedy, Vircom will provide the remedy set forth in the respective SLA.
   • 5.3 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. VIRCOM AND VIRCOM 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. VIRCOM DOES NOT WARRANT THE ACCURACY OF THE INTENDED EMAIL BLOCKING OF ANY MAIL MESSAGE, THE SERVICES WILL MEET END USER’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. VIRCOM 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 END USER.

6. Limitation of Liability
   • 6.1 VIRCOM’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES DUE AND PAYABLE BY END USER TO VIRCOM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT CAUSING SUCH LOSS PER EVENT OR SERIES OF CONNECTED EVENTS.
   • 6.2 IN NO EVENT SHALL VIRCOM 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.
   • 6.3 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.

7. Intellectual Property Rights. As between the parties, Vircom and/or Vircom supplier retains all title, intellectual property and other ownership rights throughout the world in and to the Services and service offering. End User retains all title, intellectual property and other ownership rights in all End User Data, End User Confidential Information and all data, text, files, output, programs, information, or other information and material that End User provides, develops, or makes available or uses in conjunction with any Service offering. End User’s rights to use the Services shall be limited to those expressly granted in this Agreement. End User 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 Vircom and/or Vircom supplier trademark, copyright, trade name or service mark is granted hereunder. End User shall not remove from any full or partial copies made by End User of the Services any copyright or other proprietary notice contained in or on the original, as delivered to End User.

8. Intellectual Property Rights Indemnity
   • 8.1 Vircom will (i) defend and indemnify End User 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 Vircom and sold to End User 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 End User will promptly notify Vircom in writing of the third party claim, suit or proceeding (in any event, within thirty (30) days after End User becomes aware or reasonably should have been aware of such claim); authorizes and allows Vircom to have sole control of the defense and/or settlement of the claim; and provides any information, assistance and other cooperation reasonably requested by Vircom in connection with the claim, suit or proceeding. In the event of a claim relating to an Indemnified Product, Vircom will, at its sole option and expense: (a) procure for End User 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 Vircom may terminate End User’s rights to use Indemnified Products and refund all amounts paid by End User to Vircom attributable to End Users’ future usage or access to the Indemnified Products hereunder. Vircom shall have no liability for, and the aforementioned Vircom 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 End User after Vircom has made available to End User a modified version or replacement for the Indemnified Products or has provided notice to End User 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 End User. The foregoing is the sole and exclusive remedy of End User and the entire liability of Vircom with respect to any infringement or claim of infringement of any third party intellectual property right.

9. Termination
   • 9.1 Without prejudice to any other rights to which it may be entitled, either party may terminate this Agreement with immediate effect:
     • 9.1.1 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
     • 9.1.2 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.

1. • 9.2 Vircom may terminate this Agreement with immediate effect if there is a change of control of the End User.
   • 9.3 Vircom 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 End User with immediate effect if: (i) the End User is in material breach of any obligation in this Agreement; or (ii) the End User allows Open Relay to occur or; (iii) the End User is sending bulk mail through the outbound relay service.
   • 9.4 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.

10. Confidentiality
    • 10.1 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.
    • 10.2 “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.
    • 10.3 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.
    • 10.4 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.
    • 10.5 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.
    • 10.6 Vircom recognizes and confirms that the content of all emails sent to or received from the End User by the Service is End User Confidential Information. However, Vircom reserves 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 Vircom exercises the foregoing rights Vircom will use all reasonable endeavors to keep confidential all information received from the End User or for the End User In connection with the Service.

11. Miscellaneous
12. 11.1 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.
13. 11.2 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.
14. 11.3 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 Vircom Confidential Information and any media, to assure that the Service(s), Vircom Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
15. 11.4 Vircom has no control or influence over the content of the emails processed by the Service the End User. The End User 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. End User grants to Vircom an irrevocable, royalty-free, fully-paid up, non-exclusive, license to use data from suspicious and unwanted emails, including email metadata, embedded URLs and attachments (which may include personal data), for its security services platform. Such use may entail the data being stored for analysis for up to 120 days from the point of initial transit through the Services or in perpetuity, depending on the nature of the suspicious or threatening characteristic.
16. 11.5 This Agreement constitutes the entire agreement of the parties 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 any language to the contrary therein, any Purchase Order issued by End User or Channel Partner to Vircom 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.
17. 11.6 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.
18. 11.7 End User is not entitled to transfer or assign this Agreement without Vircom’s prior written consent.
19. 11.8 This Agreement shall be governed and construed under the laws of the Province of Ontario, Canada without reference to conflict of law principles. 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 United Nations Convention on Contracts for the International Sale of Goods does not apply.
20. 11.10 The End User agrees that Vircom may use the End User’s company name, logo and testimonial (if such testimonial is provided) in Vircom promotional material and communications including, but not limited to, proposals, presentations, website and corporate brochure.

12. COUNTRY UNIQUE TERMS. If you purchased the Services in any territory specified below (the “Local Territory”), this section sets forth specific provisions as well as exceptions to the above terms and condition. To the extent any provision applicable to the Local Territory (the “Local Provision”) set forth below is in conflict with any other term or condition in this agreement, the Local Provision will supersede such other term or condition with respect to any licenses purchased in the Local Territory.
    • Australia:
      • a) Vircom Warranties (Section 5):The following is added:
        The warranties specified this Section are in addition to any rights End User may have under the Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted by the applicable legislation.
      • b) Limitation of Liability (Section 6):The following is added:
        Where Vircom is in breach of a condition or warranty implied by the Competition and Consumer Act 2010, Vircom’s liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily obtained for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply.
    • Canada
      • Personal Data:The following is added as a new Section 13: “Personal Data” refers to information relating to an identified or identifiable individual made available by one of the parties, its personnel or any other individual to the other in connection with this Agreement. The following provisions apply in the event that one party makes Personal Data available to the other:
        • (1) General
          • (a) Each party is responsible for complying with any obligations applying to it under applicable Canadian data privacy laws and regulations (″Laws″).
          • (b) Neither party will request Personal Data beyond what is necessary to fulfill the purpose(s) for which it is requested. The purpose(s) for requesting Personal Data must be reasonable. Each party will agree in advance as to the type of Personal Data that is required to be made available.
        • (2) Security Safeguards
          • (a) Each party acknowledges that it is solely responsible for determining and communicating to the other the appropriate technological, physical and organizational security measures required to protect Personal Data.
          • (b) Each party will ensure that Personal Data is protected in accordance with the security safeguards communicated and agreed to by the other
          • (c) Each party will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of this section.
          • (d) Additional or different services required to comply with the Laws will be deemed a request for new services.
        • (3) Use
          • (a) Each party agrees that Personal Data will only be used, accessed, managed, transferred, disclosed to third parties or otherwise processed to fulfill the purpose(s) for which it was made available.
        • (4) Access Requests
          • (a) Each party agrees to reasonably cooperate with the other in connection with requests to access or amend Personal Data.
          • (b) Each party agrees to reimburse the other for any reasonable charges incurred in providing each other assistance.
          • (c) Each party agrees to amend Personal Data only upon receiving instructions to do so from the other party or its personnel.
        • (5) Retention
          • (a) Each party will promptly return to the other or destroy all Personal Data that is no longer necessary to fulfill the purpose(s) for which it was made available, unless otherwise instructed by the other or its personnel or required by law.
        • (6) Public Bodies Who Are Subject to Public Sector Privacy Legislation
          • (a) For End Users who are public bodies subject to public sector privacy legislation, this section applies only to Personal Data made available to End User in connection with this Agreement, and the obligations in this section apply only to End User, except that: 1) section (2)(a) applies only to Vircom; 2) sections (1)(a) and (4)(a) apply to both parties; and 3) section (4)(b) and the last sentence in (1)(b) do not apply.
        • European Union Member States (All Members)
          • Personal Data:The following is added as a new Section 13:
            • (1) Definitions:
              • (a) Personal Data – personally identifiable information disclosed by End User to Vircom as part of the Services, including names, job titles, business addresses, telephone numbers and email addresses of End User’s employees and contractors. For Austria, Italy and Switzerland, Personal Data also includes information about End User and its contractors as legal entities (for example, End User’s revenue data and other transactional information)
              • (b) Data Protection Authority – the authority established by the Data Protection and Electronic Communications Legislation in the applicable country or, for non-EU countries, the authority responsible for supervising the protection of personal data in that country, or (for any of the foregoing) any duly appointed successor entity thereto.
              • (c) Data Protection & Electronic Communications Legislation – (i) the applicable local legislation and regulations in force implementing the requirements of EU Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and of EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector); or (ii) for non-EU countries, the legislation and/or regulations passed in the applicable country relating to the protection of personal data and the regulation of electronic communications involving personal data, including (for any of the foregoing) any statutory replacement or modification thereof.
            • (2) End User authorizes Vircom to process and use Personal Data in support of End User’s use of the Services (the ″Specified Purpose″).
            • (3) Vircom agrees that all Personal Data will be processed in accordance with the Data Protection & Electronic Communications Legislation and will be used only for the Specified Purpose.
            • (4) To the extent required by the Data Protection & Electronic Communications Legislation, End User represents that (a) it has obtained (or will obtain) any consents from (and has issued (or will issue) any notices to) data subjects as are necessary in order to enable Vircom to process and use the Personal Data for the Specified Purpose.
            • (5) End User authorizes Vircom to transfer Personal Data outside the European Economic Area, provided that the transfer is made on contractual terms approved by the Data Protection Authority (“Model Clauses”) or the transfer is otherwise permitted under the Data Protection & Electronic Communications Legislation. End User may at any time contact Vircom to enter into such Model Clauses.
          • France
            • a) Limitation of Liability (Section 6):The following replaces the terms of this section in its entirety:
              Except as otherwise provided by mandatory law:
              • Vircom’s liability for any damages and losses that may arise as a result of the performance of its obligations in connection with this Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if Vircom is at fault), for a maximum amount equal to the charges You paid for the Services that has caused the damages. This limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which Vircom is legally liable.
              • UNDER NO CIRCUMSTANCES IS VIRCOM, OR ANY OF ITS SERVICES DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
              • The limitation and exclusion of liability herein agreed applies not only to the activities performed by Vircom but also to the activities performed by its suppliers and Services developers, and represents the maximum amount for which Vircom as well as its suppliers and Services developers, are collectively responsible. This limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which Vircom is legally liable.
          • Germany
            • a) Warranty (Section 5):The following replaces the terms of this section in its entirety:
              Vircom warrants that the Services provides the functionalities set forth in the associated documentation (“Documented Functionalities”) for the Limited Warranty Period following receipt of the Services when used on the recommended hardware configuration. Limited Warranty Period means one year if you are a business user and two years if you are not a business user. Non-substantial variation from the Documented Functionalities does not establish any warranty rights. THIS LIMITED WARRANTY DOES NOT APPLY TO SERVICES PROVIDED TO YOU FREE OF CHARGE (FOR EXAMPLE, UPDATES, PRE-RELEASE, EVALUATION, OR NFR) OR SERVICES THAT HAS BEEN ALTERED BY YOU, TO THE EXTENT SUCH ALTERATION CAUSED A DEFECT. To make a warranty claim, you must return, at Vircom expense, the Services and proof of purchase to the company from whom you obtained it. If the functionalities of the Services vary substantially from the agreed upon functionalities, Vircom is entitled, by way of re-performance and at its own discretion, to repair or replace the Services. If that fails, you are entitled to a reduction of the purchase price or to cancel the purchase agreement.
            • b) Limitation of Liability (Section 6):the following paragraph is added to this Section:
              The limitations and exclusions specified in this Section will not apply to damages caused by Vircom intentional or by gross negligence. In addition, Vircom shall be responsible up to the amount of the typically foreseeable damages from any damage which has been caused by Vircom or its agents due to the slightly negligent breach of a material contractual duty. This limitation of liability shall apply to all damage claims, irrespective of the legal basis thereof and in particular, to any pre-contractual or auxiliary contractual claims. This limitation of liability shall not, however, apply to any mandatory statutory liability under the product liability act nor to any damage which is caused due to the breach of an express warranty to the extent the express warranty was intended to protect you from the specific damage incurred. This clause shall not be intended to limit liability where the extent of liability is provided by mandatory law.
          • Italy
            • a) Limitation of Liability (Section 6):the following replaces the terms of this section in its entirety:
              Apart from damages arising out of gross negligence or willful misconduct for which Vircom may not limit its liability, Vircom’s liability for direct and indirect damages related to the original or further defects of the Services, or related to the use or the nonuse of the Services or related to any case whatsoever for breach of the Agreement, shall be limited to the fees paid by you to Vircom for the Services or for the part of the Services upon which the damages were based.
          • United Kingdom
            • a) The following is added to the end of the Section 11.9:
              Notwithstanding any other provision in this Agreement, nothing in this Agreement shall create or confer (whether expressly or by implication) any rights or other benefits whether pursuant to the Contracts Rights of Third Parties) Act 1999 or otherwise in favour of any person not a party hereto.

Proofpoint Essentials End User License Agreement

Last Modified Date: July 7 2020

The most recent Proofpoint Essentials EULA can be reviewed at :

https://help.proofpoint.com/Proofpoint_Essentials/Email_Security/Administrator_Topics/
000_gettingstarted/Terms_of_Service_and_End_User_License_Agreement_(EULA)

Red Sift OnDMARC End User License Agreement

Last Modified Date: December 29 2022

The Services you (the “Customer”) are about to download, install, run, access and/or use are provided by Red Sift, Inc., incorporated and registered pursuant to the laws of Delaware with offices located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801 (“Red Sift”) or one of its authorised Partners (or any one of its authorized channel partners (collectively, the “Channel Partners”), and are subject to the terms of this End User License Agreement (“EULA”). By proceeding to download, install, run, access and/or use the Services, you confirm that you accept and agree to be bound by the terms of this EULA.

1.  Definitions; EULA Overview.

In this EULA, the following capitalised words and phrases will have the following meanings:

1. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of at least fifty percent (50%) of the issued share capital of a company or the legal power to control the operations of the entity in question.
2. “Authorised User” means each of Customer’s employees, agents, representatives, and/or contractors who are authorised by the Customer to use the Services.
3. “Business Day” means a day, other than a Saturday, Sunday or public holiday in the United States, when banks are open for business.
4. “Cloud Services” means, collectively, the Red Sift cloud services (e.g., Red Sift software as a service offerings and related Red Sift Products) listed in an Order Form.
5. “Confidential Information” means any and all information relating to or disclosed in the course of this EULA, which is or should be reasonably understood to be confidential or proprietary to the Discloser, including the Red Sift Products (in the case of Red Sift). A Recipient’s obligation to protect Confidential Information does not apply to any Confidential Information that the Recipient can demonstrate: (i) was publicly available at the time of disclosure to it; (ii) was published or otherwise became publicly available after disclosure to the Recipient, through no fault of its own; (iii) was in the possession of the Recipient at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the Discloser; or (iv) was independently developed by the Recipient without reference to Confidential Information of the Discloser, as proven by dated written records. For clarity, Customer-Provided Technology, and Red Sift’s obligations with regard thereto, are addressed under Section 2.2, and not this subsection (vi) or Section 6.
6. “Content” means all informational text, data, software documentation, photographs, graphics, audio, video, graphics, messages, files, documents, images, reports, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.
7. “Customer Applications” means all software programs, including any source code for such programs, that Customer or Authorised Users provide and load onto, or use in connection with the Services (including through a Red Sift-proprietary API). The Services, including the Red Sift Products, as well as any derivative works thereof, including any and all Intellectual Property Rights therein or associated therewith, do not constitute Customer Applications.
8. “Customer Content” means Content, other than User Data, which Customer submits, posts, stores, displays, uploads or transmits through on or through the Cloud Services.
9. “Customer-Provided Technology” means the Customer Applications, Customer Content, and/or User Data that Customer uploads to the Cloud Services or requests that Red Sift utilise in connection with the provision of Services.
10. “Data Center Region” refers to the geographic region in which the Cloud Services and Red Sift Products are The Data Center Region applicable to the Cloud Services may be set forth on the Order Form for such Cloud Services or may be established between Red Sift and its Channel Partners.
11. “Discloser” means a party disclosing Confidential Information to a Recipient
12. “Documentation” means any User Guides or technical specification documentation that Red Sift provides to its customers from time to time in connection with the Services. For clarity, general information on Red Sift’s website, marketing collateral, sales proposals, and/or information contained in any response to a customer RFx do not constitute Documentation.
13. “Effective Date” means the first date of the Subscription
14. “Fees” means any and all amounts payable by Customer to Red Sift or to a Channel Partner pursuant to an Order Form.
15. “Force Majeure Event” means any unforeseen event that impairs a party’s ability to perform its obligations hereunder, where such event reasonably outside such party’s Examples of Force Majeure Events include acts of God; acts of a public enemy; acts of terrorism, acts of any government; fires; floods; pandemics, epidemics; quarantine restrictions; freight embargoes; unusually severe weather conditions, and the other party’s delay or failure in performing its obligations, where such performance is essential to the affected party’s performance hereunder (provided that, in every case, the delay or failure to perform is without the fault or negligence of the delayed or failing party, and that such delayed or failing party makes reasonable efforts to cure the delay or failure as soon as possible after the occurrence of the unforeseen event).
16. “Intellectual Property Rights” means all worldwide intellectual property rights arising under statutory or common law or by contract, now existing or hereafter filed, issued, or acquired, including all: (a) patent rights and rights under patent applications; (b) rights associated with works of authorship including copyrights and moral rights, and any applications therefor; (c) rights relating to the protection of trade secrets; (d) rights in trademarks, service marks, logos, trade dress, trade names, and design patent rights, and any applications therefor, and (e) any right analogous or related to the foregoing and any other proprietary rights relating to intangible property.
17. Order Form” means any document used for the Customer’s order for the Cloud
18. “Personal Data” means “personal data” as defined in the General Protection Regulation (EU) 2016/679 and any amendment or replacement to it (including any national law or regulation which implements it).
19. “Recipient” means a party receiving Confidential Information from a Discloser
20. “Red Sift Products” means the software products owned or licensed by Red Sift and to which Red Sift grants Customer access as part of the Cloud Services, including Documentation, Red Sift Content, and any corrections, updates, new versions, and new releases of the same, to the extent provided as part of the Cloud Services. The term “Red Sift Products” does not include Red Sift- Provided Third Party Technology.
21. “Red Sift-Provided Third Party Technology” means any third-party software, services, Content, or products that Red Sift incorporates in or bundles with the Cloud Services.
22. “Separate Terms” means the third party-specified terms applicable to the use of Red Sift-Provided Third Party Technology, and which are found in the User Guide, readme or notice files.
23. “Services” means the Cloud Services and Support provided pursuant to an Order
24. “Subscription” means a subscription for Cloud Services pursuant to an Order
25. “Subscription Term” means the duration of a Subscription set forth on an Order
26. “Support” means Red Sift’s or Channel Partner’s support services for the Cloud
27. “User Account” means a Cloud Service account that is assigned to an Authorised User and accessible by access credentials that are unique to such Authorised User.
28. “User Data” means electronic data of Authorised Users uploaded or input into the Cloud Services by Customer or the Authorised Users (on Customer’s behalf).
29. “User Guide” means the user guides and other related user documentation provided by Red Sift for each of the Cloud Services, as updated from time to time.
30. “Virus” means any item or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

2.  PROVISION OF SERVICES.

2.1 Provisioning of Cloud Services. During the Subscription Term and subject to the terms and conditions of this EULA and each Order Form (including Customer’s obligation to pay all applicable Fees when due), Red Sift will: (a) make the Cloud Services available to Authorised Users for use in connection with Customer’s internal business operations on a subscription basis; and (b) maintain and support the Cloud Services pursuant to Red Sift’s standard Support terms and Red Sift will also provide the Red Sift Products that power the Cloud Services. Red Sift may modify the Cloud Services from time to time and will, except with respect to Red Sift-Provided Third Party Technology, endeavour to ensure that any such modification does not materially diminish the core functionality, performance, security, or stability of the Cloud Services overall during an applicable Subscription Term. Except as otherwise expressly set forth in the Order Form for certain Cloud Services offerings (e.g., a private cloud hosted at Customer’s owned or managed facility), Customer acknowledges and agrees that Red Sift has no delivery obligation for Red Sift Products and will not ship copies of such products to Customer as part of the Services. In addition, as is customary with cloud services offerings, Customer is required to accept all patches, bug fixes, updates, maintenance, and service packs (collectively, “Patches”) necessary for the proper function and security of the Cloud Services and Red Sift Products. Unless otherwise agreed upon by the parties, all applicable product, order, customer, or other information related to the Cloud Services and Red Sift Products will be communicated electronically using Red Sift’s standard formats and in conformity with the User Documentation.

2.2.  Customer-Provided Technology.

1. Provision and To enable Red Sift to provide the Services, Customer, on behalf of itself and Authorised Users, grants Red Sift and its agents the unrestricted, non-fee-bearing right to: (a) use, process, store, and transmit Customer-Provided Technology over public networks in various media worldwide, for the duration of the Subscription Term plus any additional post-termination period during which Red Sift provides Customer access to the Cloud Services to retrieve an export file of such Customer-Provided Technology; (b) make such modifications to the Customer-Provided Technology as are necessary to conform and adapt such Customer-Provided Technology to the technical requirements of connecting networks, devices, services or media associated with the Services; and (c) allow third party Customer-Provided Technology providers to access the Cloud Services, including applicable Customer-Provided Technology, as required for the interoperation of such Customer-Provided Technology with the Cloud Services and/or to confirm Customer’s compliance with the applicable licensing terms and conditions under which the Customer-Provided Technology is provided to Customer. Customer is responsible for obtaining, at Customer’s sole expense, any rights and consents from third parties (including Authorised Users) necessary for the Customer-Provided Technology, User Data, and other products and services that Customer uses with the Services. Customer represents and warrants that it has the right and authority to provide the Customer-Provided Technology to Red Sift, and that Red Sift has the right and authority to access and use the Customer-Provided Technology to provide the Services and for the other purposes described in and contemplated by this EULA.
2. Use. Red Sift will not be responsible for any use, disclosure, modification or deletion of such Customer-Provided Technology resulting from any such access by third party program providers or for the accessibility or interoperability of such third-party programs in or with the Cloud Services or Red Sift For greater certainty, the modification of such Customer-Provided Technology by Red Sift is limited to such technical modification as is required to allow such Customer-Provided Technology to be used and accessed through the Cloud Services, and will not modify any Customer trademarks, trade names, logos and notices, or any Customer product images or descriptions.
3. Issue Resolution. Customer will promptly handle and resolve any claims relating to the Customer- Provided Technology, including any notice sent to Customer claiming that any Customer-Provided Technology violates any rights; (c) maintain appropriate security, protection and backup copies of the Customer-Provided Technology; (d) immediately notify Red Sift of any unauthorised access, use or disclosure of (i) any Customer-Provided Technology if in Red Sift’s possession, or (ii) any User Account, in each case that comes to Customer’s attention; and (e) provide Red Sift with such reasonable cooperation and assistance related to any investigation and remediation of such unauthorized access, use or disclosure as Red Sift may reasonably request.

2.3 How Red Sift May Use Customer’s Personal Information. Under data protection legislation, Red Sift is required to provide Customer with certain information about who it is, how it processes the personal data of those individuals who use the Cloud Services and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in https://redsift.com/privacy and Customer must read this information.

2.4 Data Aggregation. Red Sift may compile statistical and other information related to the performance, operation, and use of the Services, and use such information for security and operations management, to create statistical analyses, and for research, development, and reporting purposes. Customer acknowledges and agrees that Red Sift may freely use the User Data (for greater certainty, excluding any Personal Data) on a generic, anonymised, aggregate basis along with Red Sift’s use of similar data from Red Sift’s other customers, such that there is no way to identify Customer as the source of User Data (such generic, anonymised, aggregate data, the “Aggregated Data”), for any purpose relating to Red Sift’s business, including: (a) to analyse, calibrate, and improve the performance and usability of the Cloud Services and Red Sift Products, to develop unique products and services, and (c) for general industry analysis and reporting. Except as otherwise stated in this EULA, Red Sift will not modify, disclose, or access non-aggregated User Data except as required by law.

2.5 Security. Red Sift will employ and maintain industry standard: (a) administrative, physical and technical safeguards in accordance with the Red Sift’s standard security policies, procedures, and controls as amended from time to time, a current copy of which will be made available to Customer upon request and designed to protect against the destruction, loss, alteration or unauthorised access, use or disclosure of User Data, and (b) technologies designed to prevent the Cloud Services from containing any Virus. Red Sift’s Data Processing Agreement (the “DPA”) in effect as of the Effective Date describes the parties’ respective roles for the processing of Personal Data that Customer and Authorised Users provide to Red Sift as part of the Services. Red Sift will act as a data processor and will act on Customer’s reasonable instruction concerning the treatment of Personal Data residing in Customer’s designated Cloud Services environment, as specified in this EULA, and the applicable Order Form. Without limiting the generality of the foregoing, Customer: (i) will ensure that User Data will not include any sensitive or special data that imposes specific data security or data protection obligations on Red Sift in addition to or different from those described herein (or the DPA); (ii) agrees to provide any notices and obtain any consents related to Customer’s use of the Services and Red Sift’s provision of the Services to Customer, including those related to the collection, use, processing, transfer and disclosure of Customer-Provided Technology (including Personal Data); and (iii) acknowledges that, in light of Red Sift’s ISO 27001 certification, and given the nature of cloud-based multi-tenant services, it is infeasible for Red Sift to accommodate conflicting data security requirements from multiple Red Sift customers, so failure to accommodate any Customer data security, technical, or operational request will not be deemed a breach of this EULA and Red Sift will have no liability therefor.

2.6.  Access Rights Granted to Customer.

1. Cloud During the Subscription Term and subject to the terms and conditions of this EULA and each Order Form (including Customer’s obligation to pay all Fees hereunder when due), Red Sift grants Customer a limited, non-exclusive, non-assignable, non-sublicensable, royalty-free, worldwide right during the relevant Subscription Term for Customer and its Authorised Users to access and use the Cloud Services and associated Red Sift Products (via the Cloud Services) as made available by Red Sift, solely for Customer’s internal business purposes and not, for clarity, for resale or use in a timesharing or service-bureau environment. Customer is responsible for all Authorised User’s compliance with this EULA, such that any act or omission by an Authorised User that is inconsistent with this EULA will be attributable to Customer.
2. Red Sift-Provided Third Party Technology. As part of the Cloud Services, Red Sift may provide Customer with access to Red Sift-Provided Third Party Technology. For clarity, the owner, author, or provider of such technology retains all ownership and intellectual property rights therein, and Customer’s rights to use the same are subject to, and governed by, the terms applicable to such

2.7.  Access Conditions.

1. Technical Requirements. To access and use the Red Sift Products, Customer must ensure that each Authorised User has access to an internet connection and otherwise meets the minimum technical requirements set out in the Documentation.
2. Authorised User Accounts. Customer will access and manage the Red Sift Products by means of user accounts which are assigned to each Authorised User (each, a “User Account”). Customer is responsible for all activity occurring under such User Accounts, and for monitoring compliance with such account limitations, and will abide by all applicable local, provincial/state, national and foreign laws in connection with Customer’s use of the Cloud Services and Red Sift Products, including those related to data privacy, international communications, and the transmission of technical or Personal Data. Customer will ensure that it assigns appropriate passwords to each such User Account and will keep such passwords secure. Customer will, and will cause the Authorised Users, to: (i) notify Red Sift immediately of any unauthorised use of any password or User Account or any other known or suspected breach of security; and (ii) not impersonate another person or provide false identity information to gain access to or use the Cloud Services or Red Sift Without limitation, Red Sift may immediately remove or suspend any User Account affected by the activities described in the foregoing clauses (i) or (ii). Red Sift is not responsible for any harm caused by Customer’s users, including individuals who were not authorised to have access to the Services but who were able to gain access because usernames, passwords or accounts were inadequately protected by Customer or Authorised Users.
3. Scope of Use. The Cloud Services may be accessed by Authorised Users only in accordance with their User Account specified on an Order Neither Customer nor any Authorised User acquires any right or license to use the Services, including the Red Sift Products, in excess of the scope and/or duration of the Services stated in the applicable Order Form. At the end of the applicable Subscription Term, Customer’s and all Authorized Users’ right to access and use the Services will terminate.
4. Compliance with Customer will be solely responsible for ensuring that its collection, use and disclosure of all User Data, including with respect to Personal Data, and any other data regarding Customer’s use of the Cloud Services Red Sift Products, is in compliance with applicable laws.

2.8 Access Restrictions. Customer will not do or attempt (nor authorize or permit any third party, including Authorized Users) to do any of the following:

1. access or use, or permit any third party to access or use, the Cloud Services or Red Sift Products, except as expressly permitted herein (including in the applicable Order Form);
2. copy, frame or mirror any part or Content of the Cloud Services or Red Sift Products including the look and feel of the Cloud Services or Red Sift Products or any part thereof, or any ideas, features, functions or graphics of the Cloud Services or Red Sift Products;
3. copy, reproduce, distribute, republish, download, display, post, transmit, translate, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile or access for a competitive purpose, the Cloud Services or Red Sift Products or any part thereof, or otherwise attempt to discover any source code or modify the Cloud Services or Red Sift Products in any manner or form (the foregoing prohibition includes a review of data structures or similar materials produced by programs), or sell, resell, rent or lease the Cloud Services or Red Sift Products or otherwise commercially exploit any part of the Cloud Services or Red Sift Products or make any part of the Cloud Services or Red Sift Products available to a third party (including any person or entity who is not an Authorized User), including as a service bureau;
4. use the Cloud Services or Red Sift Products (a) to store or transmit materials which are infringing, libelous, or otherwise unlawful or tortious; offensive; or in violation of Intellectual Property Rights or privacy rights, or (b) otherwise in violation of the User Guides;
5. use the Cloud Services or Red Sift Products to upload, email, post, publish, or otherwise transmit any material for any purpose that may: (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any false, defamatory, harassing, or obscene material; or (c) promote bigotry, racism, hatred, or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam”, or chain letters;
6. use efforts less than industry standard efforts to prevent the storage or transmittal of Viruses through the Cloud Services;
7. interfere with or disrupt the integrity or performance of the Cloud Services or Red Sift Products;
8. attempt to gain unauthorised access to the Cloud Services or Red Sift Products or their related systems or networks;
9. use or knowingly permit the use or disclosure of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Cloud Services or Red Sift Products, including through network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, or similar activities; or
10. remove or modify any program markings or any notice of Red Sift’s or its licensors’ proprietary

In addition to any other rights afforded to Red Sift under this EULA, Red Sift reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Red Sift shall have no liability if Red Sift takes such action. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Customer-Provided Technology.

2.9 Data Centre Region. If the Order Form specifies the Data Centre Region in which the Cloud Services will be provided, such region is where Customer’s Cloud Services environment will be provided and supported; otherwise, Red Sift may select a Data Centre Region in its sole discretion provided that such selection complies with the data processing agreement between the Red Sift and its Affiliates may perform aspects of Cloud Services, such as service administration and support, as well as other Services (including disaster recovery), from locations and/or through the use of subcontractors, worldwide.

2.10 Warranty Offered in Lieu of Acceptance. The Services are deemed irrevocably accepted upon delivery and/or performance. However, the foregoing does not affect or limit Red Sift’s warranty obligations (or Customer’s rights relating thereto), as and to the extent set forth in Section 7 (“Warranty; Disclaimer”).

2.11 Trial Subscriptions. If Customer receives free access or a trial, evaluation, or similar subscription to any of the Cloud Services (a “Trial Subscription”), Customer may use the Cloud Service(s) in accordance with the terms and conditions of this EULA (except as otherwise set forth below) for the period designated in the Order Form or otherwise by Red Sift (and if not designated, then for thirty (30) days) (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Services. Customer may not use a Trial Subscription for any other purposes. At the end of the Trial Period, the Trial Subscription will expire, and all Customer-Provided Technology and User Data will be permanently deleted, unless Customer purchases a paid subscription to a Cloud Service (provided that the paid subscription is for the same Cloud Service that was provided as part of the Trial Subscription). If Customer purchases a full subscription, all of the terms and conditions in this EULA will apply to such purchase and the use of the Cloud Service. Each party has the right to terminate a Trial Subscription at any time. NOTWITHSTANDING ANYTHING IN THIS EULA TO THE CONTRARY, RED SIFT WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS (WHICH, FOR CLARITY, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”).

3.  Ownership and Intellectual Property.

3.1 Customer Ownership. As between the parties, Customer retains all ownership and Intellectual Property Rights in and to Customer-Provided Technology.

3.2.  Red Sift Ownership.

1. Red Sift or its licensors own and will continue to retain all ownership and Intellectual Property Rights in and to the Cloud Services, Red Sift Products, Documentation, and Red Sift- Provided Third Party Technology, and derivative works thereof, and in and to anything developed or delivered by or on behalf of Red Sift under this EULA. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. Red Sift also owns and will continue to retain all ownership and Intellectual Property Rights in and to any suggestions, ideas, enhancement requests, and other feedback that Customer may provide to Red Sift with regard to the foregoing, it being acknowledged that the provision of such feedback is at Customer’s sole discretion. Customer agrees and acknowledges that Customer is not obtaining any ownership rights, or Intellectual Property Rights in or to any of the foregoing, other than the rights of use specifically granted in this EULA. No implied licenses are granted hereunder, and any and all rights not expressly granted by Red Sift hereunder are reserved.
2. Without limiting the generality of subsection (i) above, as between the parties, all Red Sift trademarks, trade names, logos and notices present on the Cloud Services, Red Sift Products, Documentation, and Red Sift-Provided Third Party Technology are Red Sift property and will be preserved and not deliberately defaced, modified or obliterated. Neither party will use any trademarks, trade names, logos and notices of the other party without the express prior written authorisation of such other party, provided, however, that Customer agrees that Red Sift may include Customer’s name and other indicia in its lists of customers of Red Sift in promotional and marketing materials.

4.  Fees and Payment.

4.1 Fees; Payment. Customer will pay all Fees or charges to Red Sift or the Channel Parter as the case may be in accordance with any Order Form.

5.  Term and Termination.

5.1 Term. This EULA is effective during the period stated in any Order

5.2 Termination. Either party may terminate this EULA in whole or in part immediately if the other party fails to cure any material breach of this EULA within thirty (30) days after written notice of such

5.3 Effects of Termination.

1. Upon expiration or termination of this EULA (or a for any reason: (a) any amounts owed to Red Sift or Channel Partner under this EULA before such expiration or termination will be payable as provided in any Order Form; (b) Customer will immediately cease any and all use of the Cloud Services and Red Sift Products, and destroy all copies of Documentation, and Red Sift-Provided Third Party Technology and so certify to Red Sift in writing; and (c) each Recipient will return Discloser’s Confidential Information, in whatever form it may exist, and all copies thereof, of the other party (including with respect to Customer, all User Data and Customer-Provided Technology) that it obtained during the course of this EULA, or, as directed by the other party, destroy such Confidential Information; and if so requested, must certify in writing to the other party that it has done so.
2. Upon request by Customer made either before or within thirty (30) days after the effective date of expiration or termination of this EULA (or an Order Form), Red Sift will make available to Customer a complete download of the associated Customer-Provided Technology and User Data in its then- current file or database format, or as such other format as the parties may agree in For clarity, any Services provided by Red Sift to Customer, including the downloading set out above, and any assistance in exporting the User Data, will be billable at Red Sift’s then-current time and materials rates. Customer agrees that Red Sift will not be liable to Customer, any Authorised User, or any other third party for any cessation of access to the Services or Red Sift Products following the expiration or termination of this EULA or any Order Form, including for any damages arising out of any party’s reliance on the continued availability of the Services or Red Sift Products.

5.4 Suspension. In addition to its other rights under this EULA, Red Sift may immediately suspend or terminate access to the Services and/or Red Sift Products by Customer or any Authorized User(s) in order to: (a) prevent damage to or degradation of the Services or Red Sift Products; (b) comply with any applicable law, court order, or other governmental request or order, upon written notice; or respond to any non-payment of payments due by Customer as set out herein (except to the extent subject to a good-faith dispute). If suspended, Red Sift will promptly restore use of the suspended Services and/or Red Sift Products to Customer as soon as the event giving rise to the suspension has been resolved to the reasonable satisfaction of Red Sift. Where the event giving rise to the suspension has been not been resolved to the reasonable satisfaction of Red Sift within thirty (30) days of the effective date of such suspension, Red Sift may terminate this EULA and any and all associated Order Form(s) upon prior written notice.

5.5 Survival. The following Sections of this EULA will survive the expiration or early termination of this EULA or any individual Order Form : 1 (“Definitions; EULA Overview”), 2.2 (“Customer-Provided Technology”), 2.3 (“Data Aggregation”), 2.4 (“Security”), 2.7 (“Access Conditions”), 3 (“Ownership and Intellectual Property”), 4 (“Fees and Payment”), 3 (“Effects of Termination”), 5.5 (“Survival”), 6 (“Confidentiality”), 7.2 (“Warranty Disclaimer”), 8 (“Limitation of Liability”), and 9 (“General”).

6.  Confidentiality.

6.1 Confidentiality. Recipient will use the same care to prevent disclosing Discloser’s Confidential Information as Recipient employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care, and the parties acknowledge and agree that in the case of User Data in the Cloud Services, Red Sift’s compliance with Section 2.4 (“Security”) meets such standard. Except as contemplated by this EULA, including for the purpose of providing the Services and Red Sift Products, Recipient will not make any use of Discloser’s Confidential Information or refuse to promptly return, provide a copy of, or destroy Discloser’s Confidential Information upon Discloser’s request (provided that Red Sift will be excused from its performance hereunder to the extent that such Confidential Information was required for such performance). Recipient will immediately notify Discloser upon gaining knowledge of any disclosure, loss, or use of Discloser’s Confidential Information in violation of this EULA. Recipient will share Discloser’s Confidential Information with Recipient’s employees and contractors only on a “need to know” basis in connection with performance of Discloser’s obligations under this If Recipient is served with a court order compelling disclosure of any Discloser Confidential Information, it will, to the extent allowed under law, provide Discloser with immediate notice thereof, provide Discloser with a reasonable opportunity to oppose disclosure, and reasonably cooperate in good faith with Discloser in any opposition to disclosure. The parties acknowledge and agree that any disclosure of Confidential Information resulting from a data or security breach of the Cloud Services Red Sift Products will not be a breach of this Section, unless such breach is the direct result of the breach by Red Sift of Section 2.4 (“Security”).

7.  Warranties; Disclaimers.

7.1 Red Sift Warranties. Red Sift warrants to Customer that the applicable Cloud Service platform, when used in accordance with the instructions in the User Guide and this EULA, will materially conform to the features and functionality for such platform expressly set forth in the applicable Documentation. If Customer notifies Red Sift of a breach of the foregoing warranty, Red Sift’s entire liability and Customer’s sole and exclusive remedy for such breach will be, at Red Sift’s election, to either: (A) reperform, modify, or replace the Service so that it so conforms to such warranty; or (B) provide a refund of the Fees paid for the affected Cloud Service platform, and solely as to the refunded Cloud Service, this EULA, and Customer’s right to access such Cloud Service will immediately terminate. Red Sift will have no obligation under this EULA to correct, and Red Sift makes no warranty with respect to, errors caused by or relating to: (1) use of the Services in a manner inconsistent with the Documentation or this EULA; or (2) third party hardware or software misuse, modification, or malfunction.

7.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 1, RED SIFT MAKES NO, AND ACTIVELY DISCLAIMS ANY, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, INCLUDING THOSE RELATING TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, RED SIFT PRODUCTS, DOCUMENTATION, AND RED SIFT-PROVIDED THIRD PARTY TECHNOLOGY. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES REGARDING WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED BY RED SIFT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, RED SIFT MAKES NO WARRANTY THAT THE SERVICES, RED SIFT PRODUCTS, DOCUMENTATION, AND RED SIFT-PROVIDED THIRD PARTY TECHNOLOGY WILL BE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION OR WILL MEET ANY CUSTOMER-SPECIFIC REQUIREMENTS, SPECIFICATIONS, OR EXPECTATIONS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT THE SERVICES, RED SIFT PRODUCTS, DOCUMENTATION, AND RED SIFT-PROVIDED THIRD PARTY TECHNOLOGY ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY AND THAT RED SIFT MAKES NO, AND ACTIVELY DISCLAIMS ANY, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, AND WILL HAVE NO LIABILITY, IN CONNECTION WITH ANY USE OF THE SERVICES, RED SIFT PRODUCTS, DOCUMENTATION, AND RED SIFT-PROVIDED THIRD PARTY TECHNOLOGY IN SUCH SITUATIONS. YOU ACKNOWLEDGE THAT RED SIFT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. RED SIFT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. RED SIFT IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER-PROVIDED TECHNOLOGY OR USER DATA. IN ADDITION, CUSTOMER

acknowledges that although the Services provided by Red Sift include DMARC configuration, Red Sift is not in any way responsible for the DMARC protocol, including any security breaches or problems with implementation that may arise, these being outside of Red Sift’s control.

8. LIMITATION OF LIABILITY. NEITHER RED SIFT NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE FOR (I) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE PROCUREMENT OF REPLACEMENT SERVICES; OR (II) ANY LOSS OF USE, LOST DATA, FAILURE OF THIRD PARTY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN THE LIABILITY OF RED SIFT (INCLUDING ITS LICENSOR AND SUPPLIERS, TO THE EXTENT, IF ANY, LIABLE HEREUNDER) FOR ANY CLAIMs UNDER THIS EULA WILL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO RED SIFT FOR THE SERVICE UNDER THIS EULA DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS EULA WILL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS EULA OR OF ANY LIMITED REMEDY CONTAINED HEREIN. SUCH DIRECT DAMAGES WILL BE THE FULL EXTENT OF MONETARY LIABILITY OF RED SIFT AND, IF APPLICABLE, ITS LICENSORS AND SUPPLIERS, UNDER THIS EULA, REGARDLESS OF THE FORM IN WHICH ANY SUCH LEGAL OR EQUITABLE CLAIM OR ACTION MAY BE ASSERTED AGAINST RED SIFT, AND WILL CONSTITUTE CUSTOMER’S SOLE MONETARY REMEDY. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS EULA WOULD BE SUBSTANTIALLY DIFFERENT. NOTHING IN THIS EULA SHALL

LIMIT OR EXCLUDE Redsift’s LIABILITY FOR death or personal inury resulting from negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by english law.

9.  General.

9.1 Audit. Customer acknowledges and agrees that (a) the Cloud Services and Red Sift Products include records reflecting and tracking the number, login accounts, and access logs of Authorized Users; (b) such records will be always accessible and open to Red Sift or its designee for inspection for the purposes of ensuring Customer’s compliance with the terms and conditions of this In addition, Customer will maintain, at Customer’s executive offices, reasonable files, records, and books of accounts relating to Customer’s access to and use of the Services, including at a minimum, all information and data required to verify Customer’s compliance with this EULA. Customer will permit Red Sift or its representatives to review Customer’s relevant records and audit usage to verify compliance with this EULA no more than once every twelve (12) months, and at any time (with reasonable notice) if a prior review has revealed a non-compliance (such as an underpayment or other breach of this EULA). Inspections at Customer’s premises will be conducted during normal business hours and upon reasonable notice. Customer will promptly pay any underpayment of amounts due, plus if the underpayment exceeds 5% of the actual amount due, Customer will pay interest in an amount equal to one and one-half percent (1.5%) of the underpayment per month, or the maximum legal rate, if less, calculated monthly from the date the underpayment was due until the date payment is made, as well as remedy any noncompliance indicated by such audit. All audits will be conducted at Red Sift’s expense, except that if the results reveal an underpayment of ten percent (10%) or more, Customer will also reimburse Red Sift for the reasonable cost of the audit. In lieu of such audit, and upon reasonable request of Red Sift at any time, Customer will certify its compliance with the terms of this EULA, and Customer acknowledges and agrees that Red Sift may rely on the accuracy and completeness of such certification; however, if Red Sift has reason to believe that any information in such certification is inaccurate or complete, Red Sift may conduct an audit as described above.

9.2 Force Majeure. In no event will a party be liable to the other party (other than with respect to the payment of Fees due and payable under this EULA), for any delay or failure to perform in breach of any of the terms of this EULA to the extent that such breach results from a Force Majeure Event.

9.3 No third-party rights. This EULA does not confer any rights on any person or party (other than the parties to this EULA) whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or

9.4 Assignment. Red Sift may assign, transfer or sub-contract its rights and obligations under this EULA to another organization, but this will not affect Customer’s rights or Red Sift’s obligations under this EULA. Customer may only transfer its rights or obligations under this EULA to another person if Red Sift agrees in writing.

9.5 Governing Law and Jurisdiction. This EULA and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of of the State of Delaware. Each party irrevocably agrees that the courts of the State of Delaware shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this EULA or its subject matter.

9.6 Independent Contractors. The parties are independent No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this EULA or the activities contemplated hereunder. Red Sift is not bound by any terms or conditions between Customer and any third party.

9.7 Severability. If any part of this EULA is determined to be invalid or unenforceable pursuant to applicable law then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement will continue in effect. However, for clarity, Section 9 will remain in effect notwithstanding any determination that any provision in Section 7 is invalid or unenforceable.

9.8 Segmentation. The purchase of Cloud Services or other service offerings, programs, or products are all separate offers and separate from any other Customer understands that Customer may purchase Cloud Services or other service offerings, programs, or products independently of any other order. Customer’s obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.

9.9 Communication. Red Sift may update the terms of this EULA at any time. Customer’s continued use of the Services following the deemed receipt and service of the notice under this clause shall constitute Customer’s acceptance to the terms of this EULA, as If Customer does not wish to accept the terms of the EULA (as varied) Customer must immediately stop using and accessing the Services on the deemed receipt and service of the notice. If Red Sift or Channel Partner needs to contact the Customer, it will do so by email or by pre-paid post to the address provided in accordance with the Order Form or registration for the Services. Red Sift’s email address is contact@redsift.com. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have neem delivered in the normal course of post.

9.10 Remedies. Except where this EULA specifies a sole remedy, the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Cloud Service and Red Sift Products contain Red Sift’s valuable trade secrets and proprietary information, that any breach of this EULA relating thereto will constitute harm to Red Sift for which monetary damages would be inadequate, and that injunctive relief is an appropriate Each party acknowledges and agrees that it must reasonable efforts to mitigate to the fullest extent possible any loss for which it is entitled to seek recovery hereunder.

9.11 Export Compliance. Customer acknowledges that the Cloud Services and/or Red Sift Products may be subject to U.S. and foreign export and import restrictions. Customer will not and will not allow any export or re-export of any part of the Cloud Services and/or Red Sift Products, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re- export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Services is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

9.12 Construction. The headings contained in this Agreement are for purposes of convenience only and will not affect the meaning or interpretation of this Agreement. For the purposes of this Agreement, “including” will mean “including without limitation”.