END USER SUBSCRIPTION AGREEMENT
IMPORTANT: PLEASE READ THIS END USER SUBSCRIPTION AGREEMENT (“AGREEMENT”) BEFORE ACCESSING OR USING THE AGARI SERVICE (THE “SERVICE”) THAT THE ENTITY YOU REPRESENT (THE “SUBSCRIBER”) PURCHASED A SUBSCRIPTION TO EITHER FROM AGARI DATA, INC. (“AGARI”) OR FROM AN AGARI AUTHORIZED RESELLER. BY ACCESSING OR USING THE AGARI SERVICE IN ANY WAY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUBSCRIBER TO THESE TERMS, AND SUBSCRIBER IS UNCONDITIONALLY CONSENTING TO BE BOUND BY THESE TERMS. AGARI’S PROVISION OF THE SUBSCRIPTION SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT.
1.1 “Affiliate” means an entity controlling, controlled by or under common control with Agari or Subscriber, where the root word “control” means (i) owning fifty percent or more of an entity’s voting securities, partnership interests, membership interests or the like; (ii) having the right to appoint fifty percent or more of an entity’s Board of Directors or similar governing body; or (iii) having the right to fifty percent or more of the profits of an entity or fifty percent or more of the assets of an entity upon dissolution.
1.2 “Confidential Information” means all proprietary, secret or confidential information relating to either party that is disclosed or otherwise supplied in confidence by the disclosing party to the receiving party or acquired by a party relating to this Agreement. Confidential Information does not include any information that the receiving party can establish: (i) was known to the receiving party prior to receiving the same from the disclosing party, free of any restrictions and in connection with this Agreement; (ii) is independently developed by the receiving party without reference to the other party’s Confidential Information; (iii) is acquired by the receiving party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the receiving party.
1.3 Service Order” means the order issued by Subscriber to Agari or an authorized Agari Reseller for Services, on a document incorporating the information provided in Agari’s quote.
1.4 “Service Provider Reports” means the non-authenticated data and other information provided to Agari, whether directly by Subscriber or a service provider on behalf of Subscriber; such data to specifically exclude any Personally Identifiable Information.
1.5 “Subscription Duration” is defined in the applicable Service Order, and starts on the Subscription Start Dat
1.6 “Subscription Service” or “Service” means Agari’s email security, governance, brand protection, and anti-phishing functionality as more specifically set forth in a Service Order.
1.7 “Subscription Start Date” is defined in the applicable Service Order.
2.1 Subscription Service. Agari shall host the Service listed in the Service Order, in compliance with the service level agreement (attached hereto as Appendix 1, “SLA”), during the Subscription Duration and any renewals thereof.
2.2 Data Security Analytics. Subscriber acknowledges that Agari requires access to emails related to Subscriber’s domains that fail authentication and derives and generates data relating to such emails (“Authentication Failure Data”) in order to provide the Service and Agari may compile, aggregate, publish, use and share anonymized summaries of such Authentication Failure Data both during and after the term to determine and report Service usage patterns, to analyze and report security related issues and trends, and to improve upon and create new products and service offerings. Subscriber further acknowledges that Agari may license and provide such data (excluding Subscriber Confidential Information and any personally identifiable information (if any is actually received)) to Agari’s licensees for their internal use in doing the same, both during and after the term of this Agreement. For clarity, no Subscriber Confidential Information will be disclosed, published or shared with any third party and no personally identifiable information is to be provided or received by Agari. To the extent Subscriber may have any rights in or to any Authentication Failure Data, Subscriber hereby provides Agari a perpetual, royalty-free license to do all of the foregoing.
3 Ownership. Grant of Rights
3.1 No Intellectual Property Assignment. Agari owns all right, title and interest in and to all versions of the Service and all data related to the Service, and the development, creation, and delivery thereof, including, without limitation, any patents, copyrights, service marks, trademarks, trade secrets, and other intellectual property rights therein, and nothing in this Agreement shall be deemed to constitute a transfer or assignment of any such rights. Agari shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber relating to the Service (“Feedback”). In no event shall Feedback be deemed to be Subscriber Confidential Information.
3.2 Subscription Service. Subject to the terms and conditions of this Agreement, Agari grants to Subscriber, a temporary, limited, non-exclusive, non-transferable, worldwide license to access and use the online Service. The foregoing license is extended to Subscriber Affiliates subject to the limitations in the applicable Service Order, provided that Subscriber shall cause its Affiliates to comply with the terms and conditions of this Agreement and Subscriber remains liable for any breach. The Service will be deemed accepted upon delivery of the access information.
3.3 Restrictions. Subscriber must strictly comply with the terms and conditions of this Agreement including, without limitation, the following: (a) Subscriber may use the Service for Subscriber’s and its Affiliates’ own internal business purposes and shall not outsource, sublicense, resell, lease, transfer or otherwise allow use of the Service for the benefit of any third party; and (b) Subscriber shall not (i) create derivative works based on the Service, or cause or permit others to; (ii) modify, reverse engineer, translate, disassemble, or decompile the Services, or cause or permit others to; (iii) access the Service in order to build a competitive product or service; or (iv) access the Service in order to infringe or misappropriate any intellectual property included in the Service. Any conduct by Subscriber that in Agari’s discretion restricts or inhibits any other Agari subscriber from using or enjoying the Service is expressly prohibited. Subscriber will promptly notify Agari of any unauthorized access or use of the Service.
4 Intentionally Omitted.
5 Term and Termination
5.1 Term of a Subscription Service. The Subscription Service shall start on its Subscription Start Date, as indicated in the applicable Service Order, and ends on the last day of its Subscription Duration.
5.2 Termination for Breach/Insolvency. Either party may immediately terminate the Subscription Service for material breach of this Agreement by the other party if such breach is not cured within thirty (30) days after written notice thereof. Either party may terminate the Subscription Service upon notice to the other if the other party ceases to conduct business in the ordinary course without a successor.
5.3 Consequences of Termination. Immediately upon termination of the Subscription Service, (a) the licenses granted by Agari shall immediately terminate; (b) upon written request, each party shall destroy or return to the other party any and all Confidential Information received from the other party; and (c) Subscriber shall cease to use the Service and Agari shall cease hosting the Service for access by Subscriber. The parties’ rights and obligations under this Section 5, and under Sections 2.2 (Data Security Analytics), 1 (No Intellectual Property Assignment), 3.3 (Restrictions), Section 6.2 (Disclaimer), Section 7 (Indemnification), 8 (Limitation of liability), 9 (Confidentiality), 10 (Governing law and jurisdiction), and 11 (General Provisions) shall survive.
6 Limited Warranties.
6.1 Subscription Services. Agari represents and warrants that it will perform the Service in a good and workmanlike manner in accordance with applicable industry standards. Subscriber’s sole and exclusive remedy and Agari’s entire liability for any breach of this Section 6 shall be as follows: Agari will have thirty (30) days after written notice to deliver a correction that resolves the noncomformance of the Service with this Section 6 or shall refund to the Subscriber any prepaid Service fees in a prorated amount based on the remaining days in the Subscription Duration, and all remaining obligations under this Agreement shall be terminated.
6.2 Disclaimer. except as EXPRESSLY set forth ABOVE in this Section 6, AGARI DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS PERFORMED BY THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED. AGARI DOES NOT MAKE ANY REPRESENTATION OR WARRANTIES REGARDING THE DATA PROVIDED AS PART OF THE SERVICE. SUCH DATA IS FOR INFORMATIONAL PURPOSES ONLY AND MAY NOT BE ACCURATE OR RELIABLE. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY AGARI, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. AGARI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. AGARI DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. AGARI CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, SUBSCRIBER SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY UPLOAD AND DOWNLOAD TO AND FROM THE SERVICE.
7.1 Agari Indemnity. Agari shall defend Subscriber, its Affiliates, officers and directors, employees and agents against any third party claims that the use of the Service as contemplated hereunder (other than any Service Provider Reports, or modifications or combinations made to the Service by Subscriber) infringes any copyrights, patents or other intellectual property right of a third party, and Agari shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Agari.
7.2 Subscriber Indemnity. Subscriber will defend Agari, its Affiliates, service providers and licensors, and their respective directors, officers, employees and agents, from and against any third party claims arising out of or related to any Service Provider Reports or other Subscriber content posted, stored or otherwise transmitted on or through the Service, including any claims that such content violates the intellectual property or other rights of, or has otherwise harmed, a third party, and Subscriber shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Subscriber.
7.3 The indemnifying party’s (“Indemnifying Party’s”) obligations under this Section 7 are subject to the following obligations of the party seeking indemnification (“Indemnified Party”). The Indemnified Party shall give prompt written notice of the claim to the Indemnifying Party. The Indemnifying Party shall have sole control of the defense and settlement of the claim, provided that it may not settle a claim that does not provide for a full release of the Indemnified Party, without the Indemnified Party’s advance written consent. The Indemnified Party shall give the Indemnifying Party reasonable assistance in defense of claims. This Section 7 states the Indemnifying Party’s entire liability and the Indemnified Party’s sole and exclusive remedy for claims covered by this indemnity.
8 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE Agreement, INCLUDING USE OF OR INABILITY TO USE THE SERVICE, OR ANY MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY SUBSCRIBER ON ANY INFORMATION OBTAINED FROM AGARI, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO AGARI’S RECORDS, PROGRAMS OR SERVICE. OTHER THAN WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURANCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.
9 Confidentiality. Each party reserves any and all right, title and interest that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The receiving party will protect Confidential Information of the disclosing party against any unauthorized use or disclosure to the same extent that the receiving party protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event less than a reasonable standard of care; provided that the Confidential Information of the disclosing party is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the receiving party or the receiving party otherwise knows or has reason to know that the same is Confidential Information of the disclosing party. The receiving party will use any Confidential Information of the disclosing party solely for the purposes for which it is provided by the disclosing party. This paragraph will not be interpreted or construed to prohibit any use or disclosure of Confidential Information to the extent: (a) necessary or appropriate in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; or (b) required to be disclosed by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof (e.g., so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure).
10 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of California without regard to its conflict of law principles. The losing party in any dispute shall pay all court costs, expenses and reasonable attorneys’ fees of the prevailing party.
11 General Provisions. The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorized to enter into any contractual commitment on behalf of the other party. This Agreement, together with the attached SLA and applicable Service Order, contains the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in writing. In the event of a conflict between the terms in the applicable Service Order and the Agreement, the terms contained in this Agreement shall control. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. Neither party shall assign any of its rights or obligations hereunder without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign its rights and obligations hereunder to an Affiliate and/or to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non- assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than fees due hereunder) caused by reasons beyond its reasonable control, including acts of God, war, terrorism, strikes, failure of suppliers, fires, floods, earthquakes or other force majeure. The use of the Service is subject to U.S. export control laws and may be subject to similar regulations in other countries and Subscriber agrees to comply with all such laws. Any notice given under this Agreement shall be in writing and shall be effective (i) upon receipt if (a) delivered by hand or (b) sent via overnight mail by a nationally recognized express delivery service; or (ii) three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested, when addressed to the address set forth above
Appendix 1: Customer Protect SLA
|% of Service Availability per Calendar Month||Service Credit|
|< 99. 0%||50%|
|General support questions regarding issues with data or settings in the Service.||3||Within 4 business hours|
|General Information requests||4||Within 2 business days|
|Requests for Service enhancements||4||Within 10 business days|
Appendix 2: Enterprise Protect SLA
|% of Service Availability per Calendar Month||Service Credit|
|< 99. 0%||50%|
|Agari Collector Software Functionality per Month||Service Credit|
|All mail flow stopped or all mail service severely degraded due to the Service||1||Within 1 hour|
|Mail flow delayed or degraded due to the Service||2||Within 2 hours|
|General support questions regarding issues with data or setting in the Service portal||3||Within 4 business hours|
|General information requests||4||Within 2 business days|
|Requests for Service enhancements||4||Within 10 business days|