What Is and End User Licence Agreement

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What Is and End User Licence Agreement Powered By Docstoc
					                              END-USER LICENCE AGREEMENT

Hewlett-Packard Company and/or its subsidiaries ("HP") is willing to license to you as an
individual, the company, or the legal entity, as named on the front of this certificate (the
"Certificate") that will be utilizing the Services (referenced below as "You" or "Your") only on the
condition that You accept all of the terms of this end-user licence agreement, including the
Statement of Work set out in Attachment 1 (together the “Agreement”), . Read this Agreement
carefully before using the Service. This is a legal and enforceable contract between You and
HP. By using the user name and password provided by HP, or by using the Service, you agree
to the terms and conditions of this Agreement. If you do not agree to these terms and conditions,
then do not use the user name or password and make no use of the Service. This Agreement
and the Certificate constitutes the entire agreement between the parties pertaining to this
subject matter, and supersedes all other written or oral agreements with respect thereto. Your
additional or inconsistent terms (including any pre-printed terms on Your order) are excluded.

In the event of any inconsistency, the terms of this end-user licence agreement and the
Statement of Work, the terms of this end-user license agreement shall prevail.

SERVICE. Commencing on the issue date and ending on the end date set forth on the front of
the Certificate which you will receive in the mail, (the "Service Period"), HP will use commercially
reasonable efforts to provide to You the Hosted Mail Security Service (the "Service"), pursuant
to this Agreement. The Services consist of: Anti-spam services using Symantec and Brightmail
anti-spam technology; Anti-Virus services, using Symantec's AntiVirus Scan Engine; Email
content and attachment filtering; inbound message filtering (and outbound message filtering if
requested by You and approved by HP); disaster recovery services (consisting of five rolling
days and up to one GB of storage); Email threat quarantine: Admin and Authorized Users; and
use of the Hosted Mail Security console administrative and reporting tool. HP is allowed to use
Symantec, and its service providers, and other third parties as subcontractor(s).

ADDITIONAL DEFINITIONS. "Authorized User" means the number of Your employees or third
party contractors, as set forth on the front of this Certificate, that You designate to use the
Services. You may replace Authorized Users as necessary to reflect personnel changes,
provided that the total number of individuals authorized to use the Services does not exceed the
applicable number of user licenses listed on the front of this Certificate. "Bulk Email" means a
group of more than one hundred (100) Emails with substantially similar content. "Customer
Control Console" means a web-based portal that allows Authorized Users to connect to the
Services and conduct administrative functions such as (a) setting up and updating SMTP server
lists; and (b) customizing their receipt of available functionality from the Services. "Email" means
any SMTP message sent or received via the Services. "Junk Email" means any unsolicited
commercial Email. "Prohibited Use" means to: (a) transmit through the Services any Junk Email,
Viruses or Bulk Email; (b) allow its systems to serve as an Open Relay; (c) interfere with or
disrupt the Hosted Services or any networks connected to Services; (d) transmit obscene or
pornographic material; (e) transmit, display or the publicise any material in breach of any and all
data protection and privacy laws and/or regulations or of any material which is confidential, trade
secret or trade mark; (f) take any action that imposes an unreasonable or disproportionately
large load on infrastructure used to provide the Services; (g) impersonate any person or entity or
falsely state or otherwise misrepresent an affiliation with a person or entity; (h) use the Services
for any purpose that is in violation of any applicable law or is otherwise an infringement on the
rights of any person or entity; (i) modify, decompile, reverse engineer, disassemble or reproduce
any software, systems, applications or components used in providing the Services; (j)
compromise the security of the Services, including, without limitation, hacking attempts, denial
of services attacks, mail bombs, dictionary Spam attack or other malicious activities either
directed at or originating from Your domain; or (k) resell the Service to a third party. "Open
Relay" means an SMTP Email server that allows third-party relay of Email messages. "HP
Materials" means the administrative guide, user guide, and/or quarantine reports as provided by
 HP. "Virus" means a piece of program code, including a self-replicating element, usually
 disguised as something else that causes an unexpected and undesirable event and which is
 designed so that it may infect other computer systems.
 LICENSE GRANT. HP grants to You the following non-exclusive, non-transferable, limited
 license rights, which may be exercised solely on Your behalf for Your internal purposes:
 Authorized Users may use the Services and may access and use the Customer Control Console.
 You shall use reasonable commercial efforts to ensure that use of the HP Materials by Your
 third party contractors is in accordance with this Agreement.

 RESTRICTIONS ON USE; OWNERSHIP; RECORDS; AUDIT RIGHTS. Except as explicitly
 permitted herein, You and the Authorized Users shall not: (a) provide or disclose the HP
 Materials to any other party; (b) use the Services or the HP Materials to provide services to, or
 support the operations of, any other party;
 (c) reproduce, modify, or make derivative works of any HP Materials; or (d) reverse engineer or
 reverse compile any of HP’s or Symantec's technology. HP, Symantec and its and their
 licensors shall retain all ownership rights in the Services and the HP Materials. You and the
 Authorized Users agree: (a) to provide technical information, which will include Domain Name(s),
 Email host name(s), Email host IP address(es) and a preference level, or other such information
 reasonably required by HP to configure and operate the service; (b) that at all times your
 collective Email systems will be directly connected to the Internet with a fixed IP address; (c) not
 to perform any Prohibited Use; and (d) that HP may immediately suspend the Services: (i) if You
 or the Authorized Users breach this Agreement and fail to cure such breach to HP's satisfaction
 within five (5) days of HP's notice specifying the breach; or (ii) if HP deems it reasonably
 necessary to prevent a Prohibited Use, hacking attempts, service attacks, or other malicious
 activities either directed at or originating from Your domains or servers. Suspension of Services
 shall be without prejudice to any rights or liabilities accruing prior to or during the suspension,
 including but not limited to Your obligation to pay for the Service. Because no data transmission
 over the Internet can be guaranteed 100% secure, HP, Symantec and its and their licensors and
 suppliers are not responsible for any interception or interruption of any communications through
 the Internet. You are responsible for maintaining the security of Your access codes. You will
 also maintain an accurate record of all Your Authorized Users, and You will provide such
 records to HP to review for compliance with this Agreement upon ten days' written request. An
 auditor, selected by HP and reasonably acceptable to You, may, upon reasonable notice and
 during normal business hours, inspect Your records in order to confirm compliance with this
 Agreement. HP shall bear the costs of any such audit.

 SYSTEM ADMINISTRATOR. You will provide HP with technical contact information regarding
 Your system administrator ("System Administrator") who You hereby direct to provide the
 information required by HP to configure and manage the Services.

HP will provide You with a confidential access code to the Customer Control Console. You agree
that only the System Administrator will have access to the access code and the access code shall
remain the confidential information of HP. Any action taken by the System Administrator will be
deemed an act authorized by You.

PRIVACY. HP will comply with its privacy policy, posted at
http://welcome.hp.com/country/us/en/privacy.html, as may be updated from time to time. In HP's
normal provision of the Services, Email messages are processed electronically, and are not
reviewed by HP personnel.

TECHNICAL SUPPORT. HP will provide its support services to You for the Service. Such
technical support shall be provided by telephone to Your designated contact person(s) on a 24x7
basis and shall be provided in accordance with HP or HP's Supplier’s standard Support Policies
which may be revised or updated by HP from time to time without notice to You. You will be
entitled to: (a) one designated contact person if you have purchased one user license for such
Service, or (b) two designated contact persons if you have purchased two or more user licenses
for such Service.
MISCELLANEOUS. HP reserves the right to make changes to the Service(s), including but not
limited to the content and/or format of the HP Materials, without notification. However, if the
changes substantially affect Your use of any such materials, HP will give You thirty days' notice of
such changes. You are solely responsible for acquiring and maintaining the Internet or
telecommunications services and devices required for Authorized Users to receive, access and/or
use the HP Materials. HP shall not be liable for any downtime of the Services due to reasonable
scheduled maintenance, maintenance for critical issues or forces beyond the reasonable control
of HP.

DISCLAIMERS AND LIMITATION OF LIABILITY AND REMEDIES. THE FOLLOWING APPLY
EXCEPT TO THE EXTENT PROHIBITED BY LAW. NO WARRANTIES, CONDITIONS OR
GUARANTEES EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES, CONDITIONS OR GUARANTEES OF MERCHANTABILITY,
MERCHANTABLE QUALITY, ACCEPTABLE QUALITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT, SHALL APPLY TO THE SERVICE OR HP MATERIALS.
HP PROVIDES THE SERVICE AND HP MATERIALS "AS IS" AND "AS AVAILABLE." IN NO
EVENT WILL HP BE LIABLE FOR THE ACCURACY, RELIABILITY OR COMPLETENESS OF
THE SERVICE OR HP MATERIALS. HP MAKES NO WARRANTY, CONDITION OR
GUARANTEE THAT THE SERVICE OR HP MATERIALS WILL BE UNINTERRUPTED.
COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA,
DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITY, INCLUDING
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOLLOWING
EXCLUSION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN
FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL HP BE LIABLE TO YOU UNDER
THIS AGREEMENT OR OTHERWISE TO ANY OTHER PERSON OR ENTITY, WHETHER IN
CONTRACT, TORT OR OTHERWISE FOR ANY CONSEQUENTIAL, INCIDENTAL,
EXEMPLARY, SPECIAL OR INDRECT DAMAGES, LOSSES, EXPENSES OR COSTS OF ANY
KIND OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS
OR SERVICES, LOST REVENUE, LOST PROFITS OR LOST OR CORRUPTED DATA
(REGARDLESS OF WHETHER ANY OF THESE LOSSES OR DAMAGES ARE DIRECT OR
CONSEQUENTIAL), EVEN IF HP HAS KNOWLEDGE OR BEEN ADVISED OF THE
LIKELIHOOD OR POSSIBILITY OF SUCH DAMAGESIN NO CASE SHALL HP'S LIABILITY
EXCEED THE PRICE PAID BY YOU FOR THE SERVICE IN THE NINE MONTH PERIOD
IMMEDIATELY PRECEDING THE CLAIM. THESE LIMITATIONS WILL APPLY REGARDLESS
OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH
OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT, EQUITY, UNDER STATUTE
OR OTHERWISE.

TERMINATION. HP may terminate this Agreement immediately upon email notice to You if: (a)
You fail to pay HP for the Services when due; (b) You or the Authorized Users fail to remedy any
condition giving rise to a Suspension of Service; (c) You or the Authorized Users commit a
material breach of the Agreement; or (d) HP reasonably determines that Your email traffic volume
is disproportionately large; provided that in the event of (d) above, HP may request that You enter
negotiations regarding a payment adjustment, and, if an agreement cannot be reached, HP may
then terminate this Agreement. HP may also terminate the Services and/or terminate this
Agreement, if the subcontract arrangement between HP and Symantec terminates for any reason.

EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, NEITHER PARTY SHALL BE
LIABLE FOR ANY REASON ON ACCOUNT OF TERMINATION OF THE AGREEMENT IN
ACCORDANCE WITH ITS TERMS. NEITHER PARTY WILL BE LIABLE FOR SEVERANCE
PAYMENTS OR OTHER DAMAGES OR COSTS OF ANY NATURE ARISING FROM THE
EXPIRATION OR TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
Any term of this Agreement, which by necessary implication is deemed to survive termination of
this Agreement shall survive termination of this Agreement, including, without limitation,
limitations of liability.

TRIALS. During any trial of the Services, the Services will be provided “AS IS” and any service
level warranties and remedies set out in the Statement of Work will not apply to such trial
Services.

				
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