Customer License Agreement

IMPORTANT - READ CAREFULLY

This License Agreement ("Agreement") is a legal agreement between you (the "Customer") and Internet Integration, Inc. located at  11601 Wilshire Boulevard, Suite 1675, Los Angeles, California 90025 ("GFI") for email-related services to be provided to Customer by GFI, including but not limited to GFI MailEssentials Complete Online and GFI MailEssentials Complete Online Archive, as may be specified in a Service Order executed between GFI and Customer or as may be selected by Customer via GFI's web-based control panel (collectively, the "GFI Service" or "GFI Service(s)" or "GFI Services"). An amendment or addendum to this Agreement may accompany the GFI Service or future releases of the Service. BY CLICKING "AGREE" TO ACCEPT THESE TERMS OR USING THE GFI SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE GFI SERVICE.

1.DEFINITIONS

For the purpose of this Agreement:

Agreement: These terms and conditions (as may be amended by a Service Order executed by Customer and GFI for the GFI Services) together with any documents referred to as may be amended from time to time in accordance with the terms.

Alias Domain: A secondary domain that is an exact duplicate of a primary domain. An alias domain must have the exact same users, email addresses, aliases, distribution lists, mail server, etc. , as the primary domain. The service will treat a message sent to address@aliasdomain.com as if the message had been sent to address@primarydomain.com.

Email: Refers to Internet SMTP-based electronic messaging or mail.

Email Virus or Virus: Means malicious or malevolent computer software code that is propagated via Internet email and that can cause unwanted or harmful computer system behavior.

Domain (or Internet Domain): Refers to an Internet domain that receives email, such as yourdomain.com.

GFI Systems: Refers to the hardware and software used by GFI to provide services to Customer by this Agreement.

Mailbox: Is defined as an email address at a Domain for a single user, including any associated alias addresses at the same Domain for that user that is receiving spam/virus filtering via the GFI Service; or a distribution list with a public Internet email address, that is receiving spam/virus filtering via the GFI Service.

MailEssentials Complete Online: A comprehensive inbound and outbound mail protection service which includes "zero-hour" anti-virus protection, attachment and malware scanning, multilayered spam detection, searchable individual hosted junk mail quarantines, daily spam digest messages for each end-user, configurable preferences for each user, and message logging and search capabilities.

MailEssentials Complete Online Archive: An email archive service that captures inbound, outbound, and/or internal email messages, and stores those messages in an encrypted format in multiple geographic locations, for subsequent search and retrieval via GFI's web-based control panel; messages will be automatically retained in and removed from the archive in accordance with customer-specified retention policies.

Spam: Shall mean unsolicited bulk or commercial email, also referred to commonly as junk email.

2. DESCRIPTION OF SERVICES

GFI shall provide the GFI Service(s) to which this Agreement relates to Customer via GFI Systems located outside of Customer's network, and in accordance with the descriptions of the GFI MailEssentials Complete Online and GFI MailEssentials Complete Online Archive services above.

Where Customer is signing up for a free trial, the GFI Service will be available as is, without any warranties as to the availability or performance of the GFI Services. GFI shall be entitled to invoice Customer after the conclusion of the trial period. Save as modified in this paragraph, the terms set out in this Agreement apply to both the trial period and any subsequent use of the GFI Services.

3. CUSTOMER'S RESPONSIBILITIES

To initiate the GFI Service, Customer will adjust or allow GFI to assist in its adjustment of its DNS (MX record) and/or its mail server settings to allow emails for Customer's Domain(s) to pass through the GFI Systems. If Customer does not directly control its DNS and/or mail server, Customer will be responsible for directing the person or entity that controls its DNS and/or mail server to make such changes or put GFI in touch with such persons or entity to make such changes. Customer will provide GFI with all required information and technical data necessary for the provisioning of the GFI Service.

Customer will designate a "system administrator" who will act as the main point of contact with GFI with regard to the GFI Service(s) and who will provide GFI all necessary information for the activation and continued provisioning of the GFI Service(s). Customer will also designate an alternate, secondary contact to act as system administrator in the event the main point of contact is not available. The designated system administrator and alternate contact will act as the Customer's sole contacts with GFI for purposes of any applicable system training and/or technical support. While GFI will use reasonable efforts to provide relevant documentation and information, it is understood that certain features of the GFI Service provided by this Agreement may require minor configuration changes within Customer's specific email server software or email client software, and the system administrator will be responsible for providing any necessary support to Customer's end users.

In the event of the termination of the GFI Service, either by Customer or by GFI, Customer shall be responsible for adjusting its DNS (MX record) and/or mail server settings such that emails for Customer's Domain(s) no longer pass through the GFI Systems. Customer acknowledges  that its failure to do so in a timely fashion may cause email to be lost, and GFI assumes no legal responsibility for any loss or damage following termination of the GFI Service (however caused) as a result of Customer or its agents not adjusting its DNS (MX records) and/or mail services prior to such termination.

It is understood that the Customer's access to messages archived via the GFI MailEssentials Complete Online Archive service are subject to Customer's renewal of the GFI Service. Should Customer wish to retain archived messages subsequent to the termination of the GFI MailEssentials Complete Online Archive service, Customer shall be responsible for the export of such archived data, at or prior to the termination of the GFI MailEssentials Complete Online Archive service.

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 GFI's responsibilities and liability do not extend to the internal management or administration of Customer's electronic messaging system or messages and that GFI is merely a data processor. Customer is responsible for procuring, installing and operating the computer systems, operating systems, programs and Internet connections or services necessary to access and use the GFI Service as provided hereunder, and for establishing adequate operational back-up provisions in the event of a defect or malfunction that renders the GFI Service or the computer systems or software on which they run non-operational.

Customer agrees to comply with the terms and conditions of the GFI Acceptable Use Policy ("AUP") as published or posted on GFI's website at http://www.gfi.com/hosted-hybrid-acceptable-use-policy  and as may be periodically amended by GFI. The AUP is hereby incorporated into this Agreement.

4. SERVICE FEES

As compensation for the GFI Services provided under this Agreement, Customer will pay service fees on an annual basis, unless agreed otherwise by GFI and Customer. The service fees are calculated by reference to the number of Mailboxes utilizing the GFI Services at the start of each billing period at the then-current rates published at GFI's web site or set out in any Service Order executed between GFI and Customer.  Service fee calculations for the GFI MailEssentials Complete Online Archive service may be subject to archive storage consumption by Customer, in accordance with rates published at GFI's web site or in any Service Order executed between GFI and Customer.  

With GFI's prior approval, Customer may pay on account. GFI may require a written Purchase Order from Customer in order to allow Customer to pay on account.

In the event that Customer pays by credit card, GFI shall process Customer's credit card once per billing interval, without the need to provide documentation or notice to Customer, for the duration of the GFI Service(s) being provided, subject to Section 12 TERMINATION OF AGREEMENT. If it is agreed by GFI that Customer may pay on account, GFI shall submit electronic invoices to Customer once per billing interval, for the duration of the delivery of the GFI Service to Customer, subject to Section 12 TERMINATION OF AGREEMENT.

Fees remaining unpaid after their due date shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). GFI shall have the right to suspend the GFI Services, or terminate this Agreement, in the event that any fees remain unpaid thirty days after their due date.

Customer shall pay GFI the fees free and clear of, and without any reduction for, any and all taxes. Customer shall pay any duties and taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under the Agreement, including penalties and interest ("Transaction Related Taxes"), but specifically excluding taxes based upon GFI's assets or net income. When GFI has the legal obligation to pay or collect Transaction Related Taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides GFI with a valid tax exemption certificate authorized by the appropriate taxing authority.  All fees and remittances will be in the currency indicated by GFI on its invoices to Customer.

5. ADJUSTMENT OF FEES

It is understood that the fees for the GFI Services are based on the number of Mailboxes at Customer's Domain(s), where some minimum number may apply, and that the number of such Mailboxes may change over the course of this Agreement.  Customer shall be responsible for creating, in the GFI Service control panel, a Mailbox for each individual end user that will receive the GFI Services under this Agreement.

Service fees for GFI MailEssentials Complete Online Archive are calculated based on the number of Mailboxes at Customer's Domain(s) using the GFI MailEssentials Complete Online Archive service, subject to allocated storage limits as defined at GFI's web site. Should Customer's usage exceed the total archive storage allocated to one or more of its Domains, GFI shall have the right to adjust its fees for the GFI MailEssentials Complete Online Archive service by increasing the Mailbox count for the Customer Domain(s) by the minimum number of additional Mailboxes necessary to increase Customer's allocated storage capacity to meet Customer's actual archive usage.

It is understood that in certain circumstances GFI may rely on Customer to provide an estimate of the number of actual or expected Mailboxes to receive the GFI Service under this Agreement. Customer warrants that the number of Mailboxes it specifies to GFI is a reasonably accurate number, and agrees to inform GFI of any substantial increase in the number of such Mailboxes. GFI shall periodically audit service usage to determine or estimate the number of Mailboxes, and reserves the right to adjust its fees to Customer if there is a significant (in GFI's opinion) increase in the number of Mailboxes utilizing the GFI Services. In the event that GFI determines that the number of Mailboxes is in substantial excess of the number specified by Customer, GFI may invoice Customer for any underpayment of the service fees together with interest calculated in accordance with section 4, suspend any or all GFI Services, or terminate this Agreement immediately for breach of contract. GFI may report the behavior to any applicable regulatory authorities and pursue all available legal remedies.

6. EMAIL CONTENTS

By this Agreement, it is understood that GFI is merely providing Customer with the technical means required to, on a best effort basis, access the GFI Service(s). GFI has no control over the contents or use of Customer's email, nor over Customer's internal or third-party email system(s), web site or other Internet applications. Customer agrees to comply with GFI's policies for use of the GFI Service, including a zero-tolerance restriction against the intentional sending by Customer or its agents of unsolicited commercial email or email of an illegal nature. GFI shall have the right to immediately suspend providing any or all GFI Service(s), and/or to terminate this Agreement immediately without notice to Customer in the event of a violation of these policies. Customer also agrees to comply with any and all applicable local, state, federal, or international laws and/or regulations, including those in California and those in the local jurisdiction from which Customer is accessing the GFI Services. Such compliance may include, but is not limited to, laws regarding unsolicited commercial email, copyright, intellectual property, obscenity, libel, export and data privacy.  GFI assumes no responsibility for any claims that may arise directly or indirectly from the content of email addressed from, addressed to, or received by Customer, and Customer agrees to indemnify and hold GFI harmless from any and all claims, losses or liabilities arising from such content, whether by Customer, any of its employees or agents, or any third parties. The above shall apply to any email content addressed from, addressed to, or received by Customer's Internet Domain(s) covered by the GFI Service, as well as to any other Internet domain(s) owned, secured, or controlled in whole or in part by Customer.

7. SERVICE LEVEL COMMITMENT AND EXCLUSIVE REMEDY

GFI will use reasonable efforts to maintain the GFI Systems to support the GFI Service. GFI agrees to make the GFI Services available in accordance with, and subject to any service credits specified in the Service Level Agreement available at http://www.gfi.com/hosted-email-security/mco-sla.htm as may be amended from time to time. GFI will use reasonable efforts to notify Customer of changes to the Service Level Agreement.

8. INDEMNITIES AND LIMITATION OF LIABILITY

Customer acknowledges that the techniques and technologies used for the creation and dissemination of Spam and viruses are in constant evolution, and that GFI cannot and does not guarantee nor warrant that its GFI Service will detect all Spam or viruses in Customer's email. It is further understood that the GFI Service cannot and does not extend to any Spam or viruses that reach Customer's network through means other than the GFI Systems, including but not limited to email that is sent directly to Customer's mail server (thus bypassing the GFI Systems), or Spam or viruses introduced within Customer's network. Customer also acknowledges that some mail may be falsely identified as Spam by the GFI Systems, and Customer shall be responsible for determining the appropriate handling of messages identified as Spam and the disposition of such identified Spam.

Independent third parties may be used by the GFI Service(s) to supply some of the information used in the GFI Service(s) such as Spam detection heuristics rules, blacklists and virus definitions. While GFI will make reasonable efforts to ensure the accuracy of all such information, GFI cannot and does not make any warranty as to the accuracy of any such information.

GFI provides its GFI Service by this Agreement "as is" and cannot make any affirmation of fact or warranty with respect to the GFI Systems used under this Agreement, and hereby expressly disclaims all express and implied warranties, including, without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary interests. While GFI shall make all reasonable efforts to ensure that Customer's email is archived and/or delivered as per the GFI Services' intended functionality, that viruses and Spam are detected accurately, and that all legitimate email (not Spam or virus) is delivered unhindered, due to the nature of Internet email GFI cannot warrant that this will be the case at all times. GFI's sole remedy and liability for non-performance of the GFI Services, shall be the application of service credits as specified in the Service Level Agreement. GFI SHALL NOT BE LIABLE FOR ANY CLAIMS OR LIABILITIES IN RESPECT OF ANY LOSS OF PROFIT, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTIONS, LOSS OF OPPORTUNITY, GOODWILL OR REPUTATION OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OPERATION OR PERFORMANCE OF THE GFI SERVICE(S), WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer hereby agrees to defend, indemnify and hold GFI, its successors and parents, subsidiaries and affiliates and its and their employees, officers and directors, harmless from and against any claim, loss, damage, costs or expenses (including reasonable attorney's fees) arising out of or in any way connected with the performance of the GFI Service(s)  under this Agreement.

In absolutely no event will GFI or any of its affiliates be liable to Customer for (i) any sum greater than the total GFI Service fees received by GFI from Customer for the provision of GFI Services in the 12 months immediately preceding the event giving rise to a claim under this Agreement; or (ii) any claim arising from: (a) modification of the GFI Services; (b) use of the GFI Services in a manner not contemplated by this Agreement; (c) use of the GFI Services in combination with any product or data not provided by GFI, whether or not with GFI's consent; (d) use of any third-party software or materials; or (e) resale, distribution or other use of the GFI Services in the United States.

9. FORCE MAJEURE

While GFI shall take commercially reasonable steps to ensure the availability of its GFI Services, GFI shall not be liable for delay or failure to perform any of its obligations under this Agreement in the event of circumstances beyond its reasonable control, including, without limitation, domain name server issues outside its direct control, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, or other events outside of GFI's reasonable control. Any such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented, provided that if such delay or failure persists for more than seven (7) consecutive days either party may terminate this Agreement upon formal written notice to the other party.

10. CONFIDENTIAL INFORMATION

The GFI Services use several automated software systems that evaluate email messages electronically to determine whether they are Spam, virus-infected, or legitimate messages. Customer's email is not normally accessed, processed, or reviewed by GFI staff. However, to facilitate GFI's ongoing efforts to improve the effectiveness of its technology and systems, GFI reserves the right to review or use any email passing through its systems, if and only if the purpose of such review or use is for the express goals of (a) monitoring the effectiveness of its GFI Service, (b) using messages as sample data for the training of GFI's artificial-intelligence engine and/or improvement of the Spam definition rules, or (c) providing technical support. IT IS UNDERSTOOD THAT IN ALL CASES, CLIENT'S EMAIL SHALL BE DEEMED AS CONFIDENTIAL INFORMATION.

It is further understood that Customer may have access to information pertaining to GFI's intellectual property, systems configuration details, software, processes and trade secrets that may be revealed or inferred through the provisioning of the GFI Services. Likewise, GFI may gain access to data regarding Customer's network, operations, or other non-public information. All such information shall be deemed as Confidential Information.

Neither party will disclose any Confidential Information of the other party to any third parties, except to those employees, consultants and agents who are required to have the information in order to perform their responsibilities as outlined in this Agreement. Each party shall take all reasonable measures  to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party, with the same degree of care that such party uses to protect its own most highly Confidential Information.

Notwithstanding the foregoing, the restrictions on disclosure of Confidential Information do not extend to any item of information which (a) is or becomes publicly known without breach of this Agreement, (b) is lawfully received by the receiving party from a third party not bound in a confidential relationship to the disclosing party, (c) is published or otherwise made known to the public by the disclosing party, or (d) was generated independently by the receiving party or any of its affiliates. In the event that either party or its respective directors, officers, employees, consultants or agents is required pursuant to the order or requirement of a court, administrative agency, or other governmental body to disclose any Confidential Information of the other party, the party required to do so shall make all commercially reasonable efforts to disclose only that portion of the Confidential Information which such party's legal counsel advises that it is legally required to disclose.

11. INTELLECTUAL PROPERTY

Customer acknowledges that intellectual property in the GFI Services is owned by, or licensed to Internet Integration Inc and its affiliates, and that Customer has no rights in or to the GFI Services or GFI Systems other than the right to use them in accordance with the terms of this Agreement.  In this section intellectual property means any and all patents, copyrights, design rights, trademarks, trade secrets, know-how, database rights and other rights in the nature of intellectual property established or created anywhere in the world, whether registered or unregistered and all applications for the same anywhere in the world.

12. TERMINATION OF AGREEMENT

This Agreement shall remain in full force and effect until canceled by either party. Customer may terminate the GFI Service by providing GFI with formal written notice, or by following service cancellation procedures as published by GFI, not less than 30 days before the expiry of the then current billing interval.

Customer acknowledges that the termination of the GFI Service requires that Customer adjust its DNS (MX record) and/or mail server settings such that emails for Customer's Domain(s) no longer pass through the GFI Systems. It is understood that Customer's failure to do so on or before the date of such termination may cause email for the Domain(s) to be lost.

The termination of the GFI MailEssentials Complete Online Archive service shall terminate GFI's obligation to retain any of Customer's archive data. Upon such termination, GFI shall provide a 30-day grace period in which Customer may continue to access the archive. After the 30-day grace period, GFI shall no longer provide Customer access to the archive, and shall remove any archived data of Customer. It is agreed and understood that it is solely Customer's responsibility to export its archive data, at or prior to the termination of the GFI MailEssentials Complete Online Archive service and the subsequent 30-day grace period.

The provisions of this Agreement governing Indemnities and Limitation of Liability (Section 8), Confidential Information (Section 10), and Intellectual Property (Section 11) shall survive termination of this Agreement.

13. RELATIONSHIP OF PARTIES

Each party to this Agreement is an independent entity, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, or employment relationship between the parties. Neither party shall have the authority to make or accept any offers or representations on the other party's behalf.

14. NOTES

All notices must be in writing and addressed to the attention of the other party's primary point of contact or legal department.  Notice will be deemed given when verified by written receipt if sent by courier; or when verified by automated receipt or electronic logs if sent by email or facsimile.

15. ASSIGNMENT

GFI shall have the right to assign certain of its responsibilities and rights associated with this Agreement to another GFI group company or a third party.  This may include, but shall not be limited to, GFI's billing of Customer and GFI's provision of technical support to Customer. GFI shall not be required to provide any advance notice of such assignment, and it is understood that such assignment shall constitute standard practice for customers located in certain geographic regions including Europe, the Middle East, and Africa. Customer shall comply with any local regulations, and with any terms and conditions required by the assignee, resulting from such assignment.

16. EUROPEAN ECONOMIC AREA

Where Customer is located in the European Economic Area, or utilizes the GFI Services from within the European Economic Area the following provisions will apply:

• The following terms will have the meanings given in Directive 95/46/EC on the protection of individuals and with regard to the process of personal data and on the free movement of such data:  data controller, data processor, personal data, process and processing.
• Customer acknowledges that it is the data controller of any personal data contained within, or associated with emails sent or received by any Mailbox in the course of the GFI Services, and that in providing the GFI Services, GFI is acting as a data processor on behalf of Customer.
• In processing such personal data, GFI will act in accordance with the instructions of Customer, and the terms of this Agreement in the provision of the GFI Services. GFI takes appropriate technical and organizational measures to protect against unauthorized or unlawful processing of personal data, and against accidental loss or destruction or damage to such personal data, and takes reasonable steps to ensure that those of its personnel accessing personal data in the course of providing the GFI Services or as contemplated in this Agreement understand the confidential and sensitive nature of such personal data.
• GFI will cooperate with any reasonable request by Customer for information relating to the processing of personal data to enable Customer to respond to a request for information from a data subject.

17. MISCELLANEOUS

The parties shall try to settle any dispute arising out of or in connection with this Agreement by mutual accord. In the case of continuing disagreement, both parties agree to submit to binding arbitration according to the rules of the American Arbitration Association as the sole remedy for such dispute. In such instance, the prevailing party shall be entitled to reasonable attorney's fees and the costs of that arbitration. The parties agree to venue in Los Angeles, California.

If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. Non-enforcement or waiver of any section of this Agreement does not constitute consent or continuing waiver.

This Agreement shall constitute the complete statement of the terms and conditions between GFI and Customer regarding the GFI Service(s), and shall supersede all prior arrangements, written or verbal, between the parties regarding this matter.

The validity of this Agreement and the interpretation of all of its provisions shall be governed by the laws of the State of California.

18. ACCEPTANCE

By executing this Agreement you are  agreeing that: (a) you are a representative of Customer with the authority to accept legal responsibility for the terms and conditions of this Agreement; (b) you have read and accepted all the terms and conditions in this Agreement;  (c) all the information provided to GFI by Customer is true and complete; (d) Customer accepts the responsibility to promptly inform GFI of any changes to the information provided;(e) GFI is authorized to obtain and use credit history information about you prior to approving payment by means other than a credit card, or to make charges, as stipulated in this Agreement, to the provided credit card account.