SonicWALL LLC. (“SonicWALL”) STANDARD
END USER HOSTED SERVICES AGREEMENT

FOR SONICWALL HOSTED EMAIL SECURITY SERVICE
ACCESS AND USE OF HOSTED SERVICE
OWNERSHIP
TERMINATION OF HOSTED SERVICE
SUPPORT SERVICES
SONICWALL LIMITED WARRANTY
LIMITATION OF LIABILITY
GOVERNMENT RESTRICTIONS
GENERAL
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SONICWALL HOSTED EMAIL SECURITY SERVICE (“HOSTED SERVICE”). BY USING THE HOSTED SERVICE, YOU (AS THE CUSTOMER, OR IF NOT THE CUSTOMER, AS A REPRESENTATIVE/AGENT AUTHORIZED TO BIND THE CUSTOMER) INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT FOR AND ON BEHALF OF THE CUSTOMER. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT USE THE HOSTED SERVICE. IF YOU DO PROCEED TO USE THE HOSTED SERVICE, YOU WILL HAVE INDICATED ACCEPTANCE AND AGREEMENT WITH THE TERMS AND CONDITIONS HEREIN. NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT SHALL NOT SUPERSEDE ANY OTHER SIGNED AGREEMENT BETWEEN YOU AND SONICWALL THAT EXPRESSLY GOVERNS THE HOSTED SERVICE.

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“Hosted Service” means the SonicWALL Hosted Email Security Service, provided by SonicWALL utilizing equipment and proprietary software managed and maintained by SonicWALL in facilities owned and/or controlled by SonicWALL. “Documentation” means the end user documentation SonicWALL makes available to end users of the Hosted Service. “Reseller” shall mean those entities to which SonicWALL or SonicWALL’s authorized distributors offer the Hosted Service for resale to end users. Except as otherwise agreed upon by the parties, this Agreement will also cover any updates and upgrades to the Hosted Service provided to Customer by SonicWALL directly or through a Reseller (except as may be otherwise indicated, such updates and upgrades shall be deemed Hosted Service). Software or hardware provided to Customer for use with the Hosted Service, if any, shall be governed by SonicWALL’s standard End User Product Agreement ( http://sonicwall.com/us/end_user_product_agreement.html ) and not this Agreement.

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ACCESS AND USE OF HOSTED SERVICE

  1. License. Subject to the terms and conditions of this Agreement, SonicWALL grants to Customer, and Customer accepts from SonicWALL, a nonexclusive, non-transferable (except as otherwise set forth herein) and non-sublicensable license (“License”) to access and use the Hosted Service in accordance with its Documentation.
  2. Limitations. The License to the Hosted Service is limited to use by no more than the number of Individual Users, and only during the subscription period(s) (“Term(s)”), as sold to Customer and as indicated in the ordering and sales documentation from SonicWALL or Reseller. “Individual User” means an individual in the employ of Customer or engaged in Customer’s internal business, and who receives and sends emails through Customer’s email system(s).
  3. For Customer’s Internal Business. The Hosted Service shall be used by Customer solely to manage its own internal business operations as well as the business operations of its Affiliates. Notwithstanding the foregoing, if Customer is in the regular business of providing email security management for a fee to entities that are not its Affiliates (“MSP Customers”), Customer may use the Hosted Service for its MSP Customers provided that this Agreement must be provided to MSP Customers and they must agree that their use of the Hosted Service is subject to the terms and conditions of this Agreement. Customer agrees to indemnify and hold SonicWALL harmless from and against any claims by MSP Customers against SonicWALL relating to the Hosted Service. “Affiliate” means any legal entity controlling, controlled by, or under common control with a party to this Agreement, but only for so long as such control relationship exists.
  4. Evaluation Use. If the Hosted Service is provided by SonicWALL or a Reseller at no charge for evaluation purposes, then Section 1(a) above shall not apply and instead Customer is granted a non-production License to use Hosted Service and the associated Documentation solely for Customer’s own internal evaluation purposes for an evaluation period of up to thirty (30) days from the date of access to the Hosted Service, plus any extensions granted by SonicWALL in writing (the "Evaluation Period"). There is no fee for Customer’s use of the Hosted Service for nonproduction evaluation purposes during the Evaluation Period. Notwithstanding anything otherwise set forth in this Agreement, Customer understands and agrees that the Hosted Service if provided for evaluation is provided “AS IS” and that SonicWALL does not provide a warranty or maintenance services for evaluation Licenses.
  5. Prohibited Uses and Restrictions. Customer shall not use the Hosted Service: (i) to infringe, misappropriate, or otherwise violate the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance, or regulation; (iii) to disseminate content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) to disseminate any software viruses or any other computer code, files, or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (v) to perform comparisons or other "benchmarking" activities, either alone or in connection with any other software or service, without SonicWALL’s written permission; or publish any such performance information or comparisons; or (vi) in violation of SonicWALL's standard policies then in effect. SonicWALL may take appropriate action to prohibit any use of the Hosted Service that it believes may be (or that is alleged to be) in violation of the foregoing. Customer may not (vii) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Hosted Service or any part thereof, (viii) modify or resell the Hosted Service, or (ix) except as expressly authorized in Section 1(c) above, use the Hosted Service in any time-sharing, outsourcing, service bureau or application service provider type environment.
  6. Content. Customer shall be solely responsible for all content that Customer uploads, posts, emails, transmits, or otherwise disseminates using, or in connection with, the Hosted Service. Customer acknowledges that Customer’s accessing of content using the Hosted Service is solely at Customer’s own risk and that SonicWALL will not be liable for any damage to any person or entity resulting therefrom.
  7. Withholding, Storing and Accessing Withheld Mail. The Hosted Service provides for configuration settings that enable the Customer administrator, based on certain criteria, to withhold and store, deliver or delete emails that the Hosted Service judges as either spam, a phishing email, an email containing a virus or an email that is or contains some other form of malware as set forth in the Documentation. Any stored emails (“Withheld Emails”) will be stored for a limited period of time as described in the then current Documentation (“Holding Period”), and thereafter will be inaccessible by the Customer. Customer acknowledges and agrees, if it desires to review, delete or mark for delivery any Withheld Email, it must do so within the Holding Period.
  8. Equipment and Security. Customer shall be solely responsible for obtaining and maintaining all applicable configuration settings as set forth in the Hosted Service documentation or SonicWALL's published policies then in effect. Customer shall be solely responsible for maintaining the security of its equipment and software, including, but not limited to, Customer’s account concerning the Hosted Service passwords (including, but not limited to, administrative and other passwords).


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OWNERSHIP

SonicWALL and its licensors are the sole and exclusive owners of the Hosted Service, and all underlying intellectual property rights therein. All rights not expressly granted to Customer are reserved by SonicWALL and its licensors.

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TERMINATION OF HOSTED SERVICE

The License to use and access the Hosted Service hereunder shall terminate upon the end of the Term(s), and shall also terminate if Customer fails to comply with any of the provisions of this Agreement and does not remedy such breach within thirty (30) days after receiving written notice from SonicWALL. Customer agrees upon termination to immediately cease using and accessing the Hosted Service. Notwithstanding the foregoing, unless the Hosted Service is terminated due to breach by Customer, Customer may access remaining Withheld Emails during the applicable Holding Period for such Withheld Emails after the termination of the Hosted Service (as described in Section 1(g)).

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SUPPORT SERVICES

SonicWALL’s current Support Service offerings (“Support Services”) and the terms and conditions applicable to such Support Services are set forth in SonicWALL’s Support Services Terms located http://www.sonicwall.com/us/support/Services.html and are incorporated herein by reference. Support Services may require an additional fee. Unless otherwise agreed to in writing, SonicWALL’s Support Services are subject to SonicWALL’s Support Services Terms that are in effect at the time the Support Services are purchased by Customer, and these terms and conditions will be incorporated herein by reference at that time. SonicWALL reserves the right to change the Support Services Terms from time to time by posting such changes on its website, which shall apply to any Support Services purchased on or after the date of such posting.

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SONICWALL LIMITED WARRANTY

  1. Limited Warranty. Limited Warranty. SonicWALL shall use commercially reasonable efforts to provide the Hosted Service in a manner that reasonably conforms to the Documentation. The preceding warranty will not apply if: (i) the Hosted Service is not used in accordance with this Agreement or the Documentation; (ii) the Hosted Service or any part thereof has been modified by any entity other than SonicWALL; or (iii) a malfunction in the Hosted Service has been caused by any equipment or software not supplied by SonicWALL.
  2. Disclaimer TO THE EXTENT PERMITTED BY LAW SONICWALL’S (INCLUDING ITS SUPPLIERS') SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE ABOVE WARRANTY SHALL BE LIMITED TO RE-PERFORMANCE OF THE HOSTED SERVICE, PROVIDED YOU NOTIFY SONICWALL WITHIN FIVE (5) DAYS OF ITS FAILURE TO PROVIDE THE HOSTED SERVICE, UNLESS, IN SONICWALL’S OPINION, SUCH RE-PERFORMANCE WOULD BE INADEQUATE OR IMPRACTICAL, THEN YOU WILL HAVE THE RIGHT TO TERMINATE YOUR ACCESS TO THE HOSTED SERVICE AND REQUEST A REFUND OF THE UNUSED PORTION OF THE FEES PAID BY YOU FOR THE HOSTED SERVICE.
    SONICWALL DOES NOT WARRANT THAT THE PROVISION OF HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SONICWALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, INTERCEPTIONS OR DATA LOSSES CAUSED BY THE HOSTED SERVICE OR TRANSFER OF DATA OVER THE INTERNET OR OTHER COMMUNICATIONS NETWORKS. THE HOSTED SERVICE MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY SONICWALL OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND SONICWALL’S REASONABLE CONTROL. FURTHER, IN CONJUNCTION WITH THE HOSTED SERVICE, SONICWALL RESERVES THE RIGHT TO (I) ALLOCATE BANDWIDTH WHEN CIRCUMSTANCES WARRANT AND (II) CHANGE THE CUSTOMER’S HOSTED SERVICE TO COMPORT WITH THE RECOMMENDED USAGE.
    EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW SONICWALL HEREBY DISCLAIMS ON BEHALF OF ITSELF, ITS SUPPLIERS, DISTRIBUTORS AND RESELLERS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, APPLICABLE TO THE HOSTED SERVICE AND/OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
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LIMITATION OF LIABILITY

The Hosted Service is not designed, manufactured, authorized or warranted to be suitable for use in any system where a failure of such system could result in a situation that threatens the safety of human life, including without limitation any such medical, life support, aviation or nuclear applications. Any such use and subsequent liabilities that may arise from such use are totally the responsibility of Customer, and all liability of SonicWALL, whether in contract, tort (including without limitation negligence) or otherwise in relation to the same is excluded. Customer shall be responsible for mirroring its data, for backing it up frequently and regularly, and for taking all reasonable precautions to prevent data loss or corruption. SonicWALL shall not be responsible for any system downtime, loss or corruption of data or loss of production. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SONICWALL, ITS SUPPLIERS, DISTRIBUTORS OR RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST OR CORRUPTED DATA, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE THE HOSTED SERVICE, WHETHER OR NOT BASED ON TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT SONICWALL HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SONICWALL'S MAXIMUM LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THIS AGREEMENT AND THE HOSTED SERVICE SHALL BE LIMITED TO THE AMOUNTS RECEIVED BY SONICWALL FOR THE HOSTED SERVICE PROVIDED TO CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM).
CUSTOMER EXPRESSLY AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION, AND ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THESE LIMITATIONS, THE PRICES CHARGED FOR THE HOSTED SERVICE WOULD BE HIGHER.


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GOVERNMENT RESTRICTIONS

By accepting this Agreement and receiving access to the Hosted Service, Customer confirms that it and its employees and agents who may access the Hosted Service are not listed on any governmental export exclusion lists and will not export or re-export the Hosted Service to any country embargoed by the U.S. or to any specially denied national (SDN) or denied entity identified by the U.S. Applicable export restrictions and exclusions are available at the official web site of the U.S. Department of Commerce Bureau of Industry and Security ( www.bis.doc.gov ). For purchase by U.S. governmental entities, the technical data and computer software in the Hosted Service are commercial technical data and commercial computer software as subject to FAR Sections 12.211, 12.212, 27.405-3 and DFARS Section 227.7202. The rights to use the Hosted Service and the underlying commercial technical data and computer software is limited to those rights customarily provided to the public purchasers as set forth in this Agreement. The Hosted Service and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Hosted Service and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

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GENERAL

  1. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Santa Clara, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts. Notwithstanding the foregoing, SonicWALL is entitled to seek immediate injunctive relief in any jurisdiction in the event of any alleged breach of Section 1 and/or to otherwise protect its intellectual property.
  2. Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of SonicWALL. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shall be null and void. Any transfer/assignment of a License that is permitted hereunder shall require the assignment/transfer of all copies of the applicable Software along with a copy of this Agreement, the assignee must agree to all terms and conditions of this Agreement as a condition of the assignment/transfer, and the License(s) held by the transferor Customer shall terminate upon any such transfer/assignment.
  3. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
  4. Privacy Policy. Customer hereby acknowledges and agrees that SonicWALL’s performance of this Agreement may require SonicWALL to process or store personal data of Customer, its employees and Affiliates, and to transmit such data within SonicWALL or to SonicWALL Affiliates, partners and/or agents. Such processing, storage, and transmission may be used for the purpose of enabling SonicWALL to perform its obligations under this Agreement, and as described in SonicWALL’s Privacy Policy ( www.SonicWALL.com/us/Privacy_Policy.html , “Privacy Policy”) and may take place in any of the countries in which SonicWALL and its Affiliates conduct business. SonicWALL reserves the right to change the Privacy Policy from time to time as described in the Privacy Policy.
  5. Confidential Information. SonicWALL recognizes that it may store and/or process data that constitutes confidential information of Customer. SonicWALL agrees to store and process such information with reasonable security standards similar to what it uses to protect its own confidential information, and to use such confidential information only to the extent necessary to perform its obligations under this Agreement.
  6. Notices. All notices provided hereunder shall be in writing, delivered personally, or sent by internationally recognized express courier service (e.g., Federal Express), addressed to the legal department of the respective party or to such other address as may be specified in writing by either of the parties to the other in accordance with this Section.
  7. Disclosure of Customer Status. SonicWALL may include Customer in its listing of customers and, upon written consent by Customer, announce Customer's selection of SonicWALL in its marketing communications.
  8. Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  9. Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures.
  10. Audit. Customer shall maintain accurate records to verify compliance with this Agreement. Upon request by SonicWALL, Customer shall furnish (a copy of) such records to SonicWALL and certify its compliance with this Agreement.
  11. Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
  12. Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. This Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein. This Agreement may be modified only through a written instrument signed by both parties.


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