Terms and Conditions
THESE TERMS & CONDITIONS APPLY TO ANY ALL COVERED CLIENT WHICH RECEIVES POSTINI SERVICES FROM ALL COVERED ACTING AS AN AUTHORIZED RESELLER OF POSTINI.
YOUR USE OF THE POSTINI SERVICE IS SUBJECT TO BOTH (A) THE TERMS OF YOUR ALL COVERED MASTER SERVICES AGREEMENT (INCLUDING PROFESSIONAL SERVICES ATTACHMENT) AND (B) THE TERMS OF THIS ATTACHMENT.
BY ORDERING THE POSTINI SERVICES THROUGH ALL COVERED, YOU ARE AGREEING TO THESE TERMS & CONDITIONS, INCLUDING THE LIMITATIONS ON LIABILITY, DISCLAIMER OF WARRANTIES AND LIMITATIONS OF REMEDIES SET FORTH BELOW.
1. Scope of Services. All Covered will provide to Client the Postini services as indicated in the All Covered Professional Services Schedule under which the service was ordered (the "Service"). The configuration, term and price of the Service are as set forth in the Professional Services Schedule.
2. Customer Obligations. During the term of this Contract, Customer shall have the following obligations, in addition to those set forth elsewhere in this Contract.
2.1 Customer is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of its electronic messaging system. Customer acknowledges and agrees that All Covered and its supplier's responsibilities and liability do not extend to the internal management or administration of Customer's electronic messaging system or messages and that All Covered and its supplier is merely a data-processor.
2.2 Customer agrees that it shall not resell the Services or create or offer derivative versions of the Services either directly or through a third party.
2.3 The Services are for use with normal business messaging traffic only, and may not be used for any other purpose, including use of the Message Encryption Services (if applicable) with machine generated message encryption and delivery. For each user for which Customer will be routing email and/or archiving email, if any, through the Services, Customer shall establish an email account in the Provider Administration Console.
2.4 Customer agrees to comply with the terms and conditions of the Acceptable Use Policy ("AUP") as published or posted on the website at www.postini.com and as may be periodically amended by Postini. The AUP is hereby incorporated into this Contract.
2.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 5.2 AND/OR SECTION 5.3, ALL COVERED SHALL INFORM CUSTOMER THEREOF AND RESERVES THE RIGHT TO SUSPEND THE SERVICES UNTIL SUCH FAILURE IS REMEDIED. NOTWITHSTANDING THE FOREGOING, THE FAILURE OF CUSTOMER TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 5 MAY BE DEEMED A MATERIAL BREACH OF THIS CONTRACT.
3.1 If Customer is purchasing the Email Services, then All Covered warrants that the Email Services will meet the requirements set forth in the Service Level Agreement attached hereto as Attachment 1. In the event of a breach of the foregoing warranty, as Customer's sole and exclusive remedy, All Covered will provide the remedy set forth in the SLA.
3.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, ALL COVERED MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT.
4. Ownership. The Services and all intellectual property rights relating to the Services are and shall remain the exclusive property of All Covered's supplier.
5.1 Confidential Information. "Confidential Information" is information disclosed by one party to the other party under this Contract that is marked as confidential or would normally under the circumstances be considered confidential information of the disclosing party. Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was rightfully given to the recipient by another party. For clarity, Customer's Confidential Information shall also include electronic messages of Customer that are subject to the Services ("Customer Messages").
5.2 Confidentiality Obligations. The recipient will not disclose the Confidential Information, except to affiliates, employees, suppliers and agents who need to know it and who have agreed in writing to keep it confidential. Those people and entities may use Confidential Information only to exercise rights and fulfill obligations under this Contract, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to discloser.
6. Indemnity. All Covered, at its expense, shall indemnify, defend and hold harmless Customer against any losses, costs and damages arising from a claim by a third party against Customer that the Services, or any part thereof, infringe any U.S. intellectual property or proprietary rights of such third party or misappropriates any protected trade secret of such third party. Customer, at its expense, shall indemnify, defend and hold harmless All Covered against any losses, costs and damages arising from a claim by a third party against All Covered based upon or otherwise arising out of the contents of the Customer Messages. Each party's obligations under this Section 9 are subject to the party seeking idemnification ("Indemnitee") providing the other party ("Indemnitor") with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement, and (iii) reasonable support and cooperation with regard to the defense. In the event that All Covered's right to provide the Services is enjoined or in All Covered's reasonable opinion is likely to be enjoined, All Covered may, at its expense, obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing but remain functionally equivalent, or if such remedies are not reasonably available, terminate this Contract without liability to Customer.
7. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT OR THE PERFORMANCE OR OPERATION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT REGARDING THE INDEMNITY OBLIGATIONS UNDER SECTION 9, "INDEMNITY," IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO ALL COVERED DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSATION OF THE DAMAGES.
8. Assignment. Either party may assign this Contract in its entirety, but not in parts, on written notice to the other party to its parent company, affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets. Any other assignment shall be null and void, except with the other party's prior written consent. This Contract and all obligations shall be binding upon and inure to the benefit of the parties' successors and lawful assignees.
9. Governing Law. This Contract is governed by California law excluding California's choice of laws rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SAN MATEO COUNTY, CALIFORNIA.
10. Severability. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose.
11. Survival. The rights and obligations of All Covered and Customer contained in this Section and in Sections 4-7, 9 and 15 shall survive any expiration or termination of this Contract.
12. Waiver. Failure to enforce any provision will not constitute a waiver.
13. Amendments. Any amendments must be agreed upon in writing.
14. Force Majeure. All Covered shall not be liable for inadequate performance to the extent caused by a circumstance beyond its reasonable control, including, without limitation, Domain Name Server issues outside its direct control, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages.
15. Notices. All notices must be in writing (including e-mail) and sent to the attention of the other party's Legal Department and primary point of contact. Notice will be deemed given when delivered.
16. Counterparts. The parties may execute this Contract in counterparts, including facsimile, PDF or other electronic copies which taken together will constitute one instrument.
17. Nonexclusive Remedy. Except as expressly set forth in this Contract, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
18. No Agency. The parties are independent contractors, and this Contract does not create an agency, partnership or joint venture.
19. Equitable Remedies. Nothing in this Contract will limit either party's ability to seek equitable relief.
20. Third Party Rights. All Covered's licensors and/or suppliers have third party rights under this Contract.
Subject to the foregoing, no other person or entity shall have third party rights under this Contract.
21. Archived Messages. If the Services contain archiving functionality, Customer Messages shall be retained for up to the period set forth in the Services Schedule (in the Services name), provided that Customer renews the applicable Services with All Covered for each year of such retention period. The retention period shall apply to all data archived under the Services. Failure to renew the applicable Services during the retention period shall terminate All Covered's obligation to retain any of Customer's data or indexes.
22. Entire Agreement. This Contract and the Exhibits hereto and any documents expressly referenced herein or therein is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
SERVICE LEVEL AGREEMENT
1. Service Availability Commitment. The Email Services shall be operational at least 99.999% of the time in any given month during the term of the Agreement. The "Operational Percentage" means the percentage of the total time during any given month that the Email Services are not subject to an Outage. An outage ("Outage") means that Provider fails to apply filtering in accordance with All Covered's configuration selection. Outage does not include service suspension (i) for reasons outside of Provider's sphere of control (as described in Section 4 of this SLA) or (ii) during times of maintenance (as described in Section 5 of this SLA). If a dispute arises about whether or not an Outage occurred, Provider shall make a determination in good faith based on its system logs, monitoring reports and configuration records, which Provider shall make available for auditing by All Covered at All Covered's request. The "Outage Percentage" means the total duration of an Outage during a given month divided by the total time during such month
2. Outage Reporting Process. Client must inform All Covered in writing or by email within ten (10) business days of the time it first notices an Outage or first believes that there has been an Outage. Failure to comply with this requirement will forfeit Client’s right to receive a remedy for the Outage as described in Section 3 of this SLA.
3. Remedy. If the Operational Percentage is less than 99.999%, and if Client has fulfilled all of its obligations under the Agreement and none of the exceptions in Section 4 of this SLA applies, Client shall have the following sole and exclusive remedy: All Covered will provide Client with a pro-rata credit on All Covered's Email Services fee for the month in which the Outage occurred. The pro-rata credit shall be calculated by multiplying the Outage Percentage with All Covered's total monthly Email Services fee in the month during which the Outage occurred. For clarity, the Email Services fee for a given month shall is either (i) 100% of the Email Protection Service fee for that month or (ii) 33% of the Email Archive fee for that month. Furthermore, if Client experiences one (1) or more Outages in each of three (3) consecutive calendar months and/or three (3) or more Outages in any period of thirty (30) consecutive days, Client can terminate the service upon thirty (30) days prior written notice.
4. Exceptions. Client shall not have any remedies under the Attachment, including this SLA, in connection with any circumstance addressed in Section 13, "Force Majeure" of the Attachment.
5. Maintenance. To ensure optimal performance of the Services, Postini reserves the right to perform unscheduled emergency maintenance at any time. Additionally, Postini reserves the right to perform scheduled maintenance that is designed not to impact the Services at any time. Postini will make all reasonable attempts to schedule maintenance events that are expected to have an impact on the Services between 10:00 p.m. Pacific Time on Fridays and 12:00 p.m. Pacific Time on Sundays.