MAILFRONTIER CLICK WRAP INSTALLER LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: BY CLICKING ON THE "ACCEPT" BUTTON OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE OR THE SERVICE, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE (I) UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT"), AND (II) AGREEING THAT THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN MAILFRONTIER AND LICENSEE AND IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY LICENSEE. IF A WRITTEN AGREEMENT EXISTS BETWEEN AND HAS BEEN EXECUTED BY BOTH LICENSEE AND MAILFRONTIER, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT LICENSEE IS BOUND BY THE TERMS OF THAT WRITTEN AGREEMENT. LICENSEE'S CONTINUED USE OF THE DOWNLOADED MATERIALS OR THE SERVICE SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT OR OF AN EXISTING WRITTEN AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE APPLICABLE AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

• “Annual Subscription Fee” means the annual fees paid by Licensee for the right to use the Software and Service during the applicable Term.
• “Anti-Virus Product” means the Anti-Virus powered by McAfee Security product.
• “Confidential Information” means the Software, Service, and all information which, in accordance with Section 14 below, is marked as confidential or proprietary or is disclosed verbally and identified as confidential or proprietary at the time of disclosure, or which by its nature is normally and reasonably considered confidential.
• “Content” means information or materials in any form or format.
• “Cover Sheet” means MailFrontier’s Standard Agreement or other ordering document (e.g. Licensee’s Purchase Order) that (i) specifies the Software licenses and Service purchased by Licensee; (ii) references this Agreement; and (iii) is signed or initialed by authorized representatives of both parties.
• “Documentation” means the user manuals relating to the use of the Software delivered with the Software.
• “Effective Date” is the date Licensee clicks on the "accept" button or downloads, installs, copies or otherwise uses the Software or the Service.
• “Equipment” means any equipment and ancillary services needed to connect to, access or otherwise use the Software or the Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service.
• “Evaluation Period” means the first fifteen (15) days of the Agreement commencing on the Effective Date.
• “Extension Term” applies if the Software and Service are licensed on a subscription basis and means each additional twelve (12) month period for which the Agreement is extended pursuant to Section 17.
• “Free Software” means software programs that are licensed (or sublicensed) to Licensee under the GNU General Public License or other similar free software licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code.
• “High Risk Activities” means hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage.
• “Initial Term” applies if the Software and Service are licensed on a subscription basis and means the first twelve months of the Agreement commencing on the Effective Date.
• “License Fee” means the Software license fees paid by Licensee for Software when licensed on a perpetual basis.
• “Remote Server” means the outside server contacted by the Software.
• “Service” means the junk e-mail blocking service which is distributed under the MailFrontier brand.
• “Software” means a machine executable copy of the object code of the Software products licensed by MailFrontier to Licensee under this Agreement.
• “Support” means the support services provided by MailFrontier in accordance with MailFrontier’s support policies and procedures then in effect.
• “Support Fees” means the fees paid by Licensee for the Service and Support provided hereunder by MailFrontier.
• “Term” applies if the Software and Service are licensed on a subscription basis and means the Initial Term and any Extension Term.

2. GRANT OF RIGHTS. Subject to the terms of this Agreement, MailFrontier hereby grants Licensee a non-sublicensable, non-transferable, and non-exclusive license to (i) install and use, solely for Licensee’s internal business purposes and in accordance with the Documentation, the Software on the number of computers and/or servers and email accounts which are solely operated and accessed by Licensee and for which Licensee has paid MailFrontier the applicable License Fees, Support Fees, and/or Annual Subscription Fees; (ii) access the Service solely for internal use; and (iii) use and make a reasonable number of copies of the Documentation solely for Licensee’s internal use in conjunction with the Software and Service. Licensee acknowledges and agrees that its use of the Anti-Virus Product is subject to the following additional term and condition: any obligation MailFrontier has to provide Support for the previous sequential release of the Anti-Virus Product ends upon availability of a subsequent release of the Anti-Virus Product.

3. LICENSE RESTRICTIONS. Except as expressly permitted by this Agreement, Licensee shall not, nor permit anyone else to: (i) copy, modify, or distribute (or otherwise make available to others) the Software or the Service; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software or the Service; (iii) rent, lease, or otherwise use the Software or the Service on behalf of any third party; or (iv) use the Software or the Service for performing comparisons or other “benchmarking” activities, either alone or in connection with any other software or service (and Licensee will not publish any such performance information or comparisons). Licensee shall maintain and not remove or obscure any proprietary notices on the Software or Documentation, and shall reproduce such notices exactly on all permitted copies of the Software or Documentation. As between the parties, title, ownership rights, and intellectual property rights in and to the Software and Documentation, and any copies or portions thereof, and in and to the Service, shall remain in MailFrontier and its licensors. Licensee understands that MailFrontier may modify or discontinue offering the Software or the Service at any time. The copyright laws of the United States and international copyright treaties protect the Software and Documentation. This Agreement does not give Licensee any rights not expressly granted herein.

4. FEES. The License Fees, Support Fees, Annual Subscription Fees, or any one-time fees for requested additional services that are specified on a Cover Sheet, MailFrontier’s website or other ordering document are payable in US Dollars and are due as of the Effective Date and, in the case of Support and Annual Subscription Fees, on each twelve (12) month anniversary thereafter. For Software licensed on a perpetual basis, Support for subsequent years is optional. Licensee shall make all payments due within twenty (20) days of the invoice date. A finance charge of 1.5% per month, or, if less, the maximum amount allowed by law, will be charged on past due accounts. Payments by Licensee will thereafter be applied first to accrued interest and then to the principal unpaid balance. Licensee shall pay any attorneys’ fees, court costs, or other costs incurred in collection of delinquent undisputed amounts. Fees are non-refundable regardless of whether a subscription license or support is terminated prior to the end of the Term. Licensee shall pay any and all applicable taxes (including, without limitation, sales, value-added and similar taxes or other governmental assessments) imposed as a result of Licensee’s use of the Software and Service, except for taxes based on MailFrontier’s income.

5. REPORTS. At any time upon reasonable request by MailFrontier, Licensee will certify to MailFrontier in writing the number of servers, total email accounts, and computers on which the Software and Service are used. If Licensee’s use of the Software or Service exceeds that authorized herein, Licensee will promptly report such excess use to MailFrontier and pay all fees that would have been due (at MailFrontier’s then standard prices) if such use had been authorized. Licensee will maintain, and MailFrontier will be entitled to audit on reasonable notice, any records relevant to payments; if the audits reveal a 3% or greater underpayment, Licensee will bear the cost.

6. INTELLECTUAL PROPERTY; CONTENT. As a condition to Licensee’s use of the Software and the Service, Licensee represents, warrants and covenants that Licensee will not use the Software or the Service: (i) to infringe 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; or (iv) in violation of MailFrontier’s standard policies then in effect. Licensee, not MailFrontier, remains solely responsible for all Content that Licensee uploads, posts, emails, transmits, or otherwise disseminates using, or in connection with, the Software or the Service. Licensee acknowledges that all Content that Licensee accesses using the Software or the Service is at Licensee’s own risk and Licensee will be solely responsible for any damage to any party resulting therefrom. MailFrontier may monitor the Content provided by Licensee, in accordance with the preferences set by Licensee, or monitor Licensee’s use of the Software or Service and may remove any such Content or prohibit any use of the Software or Service it believes may be (or alleged to be) in violation of the foregoing. Notwithstanding the foregoing, MailFrontier reserves the right at all times to disclose, without prior notification to Licensee, any information necessary to satisfy any applicable law, regulation, legal process or governmental request concerning Licensee’s use of the Software or Service.

7. PRIVACY POLICY. MailFrontier’s privacy policy governs MailFrontier’s use of Licensee’s information. This policy, as it may be changed from time to time, is posted at http://www.mailfrontier.com/privacy.html or at a successor site and is incorporated herein by reference.

8. MARKETING. Except for the MailFrontier Gateway, Small Business Edition product, Licensee agrees to the following terms and conditions:

(a) Press release. Licensee agrees to work with MailFrontier to issue a press release within 30 days of the Effective Date stating that Licensee is using MailFrontier products. Such press release shall be subject to the approval of both parties.

• Advertising. Licensee agrees to allow reference by MailFrontier to Licensee’s license and intended use of the Software and Service on MailFrontier customer lists, marketing materials and websites as well as in discussions with MailFrontier customers, prospective customers, and industry/financial analysts; MailFrontier may use Licensee’s logo in such context.

(c) Reference Site. After the Software and Service are deployed in Licensee’s production environment, and upon Licensee’s prior approval (which shall not be unreasonably withheld), MailFrontier may use Licensee’s name as a customer reference in production, and Licensee will cooperate with MailFrontier to develop a case study document that describes Licensee’s use and implementation of the Software and Service.

9. EQUIPMENT. Licensee shall be responsible for obtaining and maintaining the Equipment. Licensee shall be responsible for ensuring that such Equipment is compatible with the Software and the Service and complies with all configurations set forth in MailFrontier's published policies then in effect. Licensee shall also be responsible for maintaining the security of the Equipment, Licensee account, passwords (including but not limited to administrative and other passwords) and files, and for all uses of Licensee's account or the Equipment with or without Licensee's knowledge or consent.

10. AVAILABILITY. MailFrontier shall use commercially reasonable efforts to maintain the Service in a manner that minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MailFrontier or by third-party providers, or because of other causes beyond MailFrontier’s reasonable control.

11. FEATURES AND COMMUNICATION. The Software and the Service are intended to enhance Licensee's email services in ways that may include challenging potential junk email senders via an automatically generated challenge email in accordance with MailFrontier's standard policies then in effect. The Software will, at times, contact the Remote Server and will upload and download information. This information may include registration verification, software update checks, and the updating of message thumbprints. By installing the Software, Licensee agrees to allow the Software to communicate with the Remote Server for the purpose of such information exchange.

13. INDEMNITY. MailFrontier will indemnify, defend and hold Licensee harmless from damages, settlements, attorneys’ fees and expenses resulting from a third party claim that the Software or Service infringes any patent, trademark, or copyright arising under the laws of the United States, provided MailFrontier is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; MailFrontier will not be responsible for any settlement it does not approve in writing. Should the Software or Service become, or be likely to become, in MailFrontier’s opinion, the subject of a claim of intellectual property infringement, MailFrontier may, at its option, procure for Licensee the right to continue using the Software or Service, or replace or modify it to make it non-infringing as soon as commercially reasonable. In addition, MailFrontier may request that Licensee immediately stop all copying, distribution, marketing and other use of the potentially infringing Software or Service. Licensee agrees to comply with MailFrontier’s request within 10 business days. The foregoing obligations do not apply with respect to the Software or Service or portions thereof (i)not supplied by MailFrontier; (ii) modified after delivery by MailFrontier; (iii)combined with other products, where the alleged infringement relates to such combination; (iv)if Licensee continues allegedly infringing activity after being notified thereof or of modifications that would have avoided the alleged infringement; or (v)if Licensee’s use of the Software or Service is not strictly in accordance with this Agreement. Licensee will indemnify MailFrontier for all damages, settlements, attorneys’ fees and expenses resulting from any claim of infringement or misappropriation not covered by MailFrontier’s indemnity obligation.

14. CONFIDENTIALITY. Both parties may, in connection with this Agreement, disclose to the other party Confidential Information. Confidential Information shall include, without limitation, information related to past, present or future research, development or business affairs, any proprietary products, materials or methodologies, or any other information that provides the disclosing party with a competitive advantage. Confidential Information, if disclosed or provided in tangible form, shall be clearly and conspicuously identified as confidential or proprietary, and if orally or visually disclosed, shall be identified as confidential or proprietary in nature at the time of disclosure. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than a reasonable degree of care. Confidential Information shall not be provided or disclosed to anyone except those employees or contractors of the receiving party with a need to know under this Agreement. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Confidential Information and any and all authorized copies thereof shall remain the property of the disclosing party and shall be destroyed or returned if requested by the disclosing party.

Notwithstanding any provision contained in this Agreement, neither party shall be required to maintain in confidence any of the following information:

• information that, at the time of disclosure to the receiving party, is in the public domain;
• information that, after disclosure, becomes part of the public domain without restriction, except by breach of this Agreement;
• information that was in the receiving party’s possession at the time of disclosure, and which was not acquired, directly or indirectly, from the disclosing party;
• information that the receiving party can demonstrate resulted from its own research and development, independent of disclosure from the disclosing party;
• information that the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or
• information that is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.

15. WARRANTY DISCLAIMER. MAILFRONTIER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND MAILFRONTIER DOES NOT GUARANTEE THE ACCURACY OF THE JUNK EMAIL BLOCKING OF ANY MAIL MESSAGE OR THAT NO EMAIL WILL BE LOST. MAILFRONTIER PROVIDES THE SOFTWARE, THE SERVICE, AND ANY SUPPORT OR OTHER SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.

16. LIMITATION OF LIABILITY. NEITHER MAILFRONTIER NOR MAILFRONTIER LICENSORS SHALL BE LIABLE OR RESPONSIBLE FOR ANY INNACURACY OF THE JUNK EMAIL BLOCKING PROCESS. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF WANTED MAIL MESSAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL MAILFRONTIER OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SOFTWARE OR THE SERVICE OR FROM ANY SUPPORT OR OTHER SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL MAILFRONTIER LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER BASED IN CONTRACT, TORT, OR ANY LEGAL THEORY. MAILFRONTIER'S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF MAILFRONTIER SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.

17. TERM AND TERMINATION. This Agreement is effective immediately and shall remain effective (a) in the case of an evaluation license only, for the Evaluation Period, or provided that Licensee has paid all applicable fees and unless sooner terminated by either party in accordance with this Section 17, (b) for Software and Service licensed on a subscription basis, for the Term, provided that after the Initial Term, if Licensee has paid to MailFrontier the Annual Subscription Fee and any other applicable fees, this Agreement shall automatically extend for an Extension Term, unless terminated by either party by giving notice to the other party not less than sixty (60) days prior to the end of the Initial Term or any Extension Term; or (c) for Software licensed on a perpetual basis, until terminated by either party as described below. Notwithstanding the foregoing, this Agreement may be terminated by either party immediately upon written notice if the other party: (i) becomes insolvent or ceases doing business for a period greater than ninety (90) days; (ii) files a petition in bankruptcy; (iii) makes an assignment for the benefit of its creditors; or (iv) materially breaches any of its obligations under this Agreement, including any payment obligation, which breach is not remedied within thirty (30) days following written notice to such party. During an Evaluation Period only, termination may be for any reason. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall cease all use of the Service, and shall certify to MailFrontier that such actions have occurred. Any termination pursuant to this Section 17 shall be without any liability or obligation of the terminating party, other than with respect to any breach of this Agreement prior to termination. Sections 3, 4, and 13-22, as well as any accrued rights to payment, shall survive any termination or expiration of this Agreement.

18. GOVERNMENT USE. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the Software and Service provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202, FAR section 12.212 and other sections, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. 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. Any technical data provided that is not covered by the above provisions shall be deemed “technical data-commercial items” pursuant to DFAR section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR section 227.7015(b).

19. EXPORT CONTROLS. Licensee agrees to comply fully 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 Software and Service, MailFrontier Confidential Information, and media to assure that the Software, Service, MailFrontier Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.

20. HIGH RISK ACTIVITIES. The Software and Service are not fault-tolerant and are not designed or intended for use in High Risk Activities. MailFrontier expressly disclaims any express or implied warranty of fitness for High Risk Activities.

21. FREE SOFTWARE. The Software includes or may include Free Software for which the applicable Free Software license may also required that Free Software source code be made available to those users if the Free Software is distributed to someone in an executable binary format. The source code is made available for any such Free Software. If any Free Software licenses require that MailFrontier provide rights to use, copy or modify a Free Software program that are broader than the rights granted in this agreement, then such rights shall take precedence over the rights and restrictions herein.

22. MISCELLANEOUS. This Agreement represents the complete agreement regarding the subject matter of this Agreement.This Agreement may be amended only by a written document executed by a duly authorized representative of each party. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any Cover Sheet shall add to or vary the terms of this Agreement unless signed or initialed by authorized representatives of each party.If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of MailFrontier to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit MailFrontier's rights with respect to such breach or any subsequent breaches. This Agreement may not be assigned or transferred by Licensee for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without MailFrontier's written consent and any action or conduct in violation of the foregoing shall be void and without effect. MailFrontier expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, without reference to conflict of law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California; Licensee hereby agrees to service of process in accordance with the rules of such courts.

Last updated: August 21, 2004