THE PRODUCTS ARE PROVIDED ONLY ON THE CONDITION THAT THE SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) BETWEEN SUBSCRIBER AND Rawstream. BY ACCEPTING THIS AGREEMENT OR BY USING THE PRODUCTS, SUBSCRIBER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT.
“Databases” means proprietary database(s) of URL addresses, email addresses, Malware, applications and other valuable information.
“Database Updates” means changes to the content of the Databases.
“Order” means a purchase commitment mutually agreed upon between (1) Rawstream and Subscriber, or (2) a Rawstream authorized reseller and Subscriber.
“Permitted Capacity” means the Permitted Number of Seats set forth in the Order.
“Seat”means (i) each computer, electronic appliance or device that is authorized to access or use the Products, directly or indirectly
“Permitted Number of Seats” means the number of Seats set forth in the Order.
“Products” means Software, Databases, Database Updates, Software Upgrades, together with applicable documentation and media, and if purchased pursuant to an Order, SaaS Web.
“Software” means Rawstream’s proprietary software applications.
“Software Upgrades” means certain modifications or revisions to the Software.
“Subscriber” means the individual, company, jointly owned subsidiaries and their parent company, or other legal entity that has placed an Order.
“Subscription” means a non-exclusive, nontransferable right to use the Products in accordance with this Agreement and the Order.
“Subscription Fees” means the agreed upon fees in an Order.
“Subscription Term” means the agreed upon time period in an Order.
“Virus” or “Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
SaaS Web Definitions
“Open Relay” means an email server configured to receive email from an unauthorized third party and that forwards the email to other recipients who are not part of the server’s email network.
“Average Bandwidth Per Seat” means the total bandwidth used in the performance of SaaS Web divided by the number of Seats.
“Web Content” means any data and requests for data processed by SaaS Web including but not restricted to that accessed using the Internet protocols HTTP and FTP.
“SaaS Web” means the online, Web-based component of the Products provided by Rawstream when set forth in the Order, including associated offline components.
2. Subscription and Grant of Right to Use.
Subject to the terms and conditions of this Agreement, Rawstream will provide Subscriber the Subscription at the Permitted Capacity set forth in the Order for the Subscription Term. Subscriber may use the Products solely for Subscriber’s own internal business operations (not for the benefit of any other person or entity) during the Subscription Term, provided Subscriber has paid and continues to pay the Subscription Fees. Subject to compliance with the terms of this Agreement, Subscriber may relocate or transfer the Product for use on a different server within its location. Rawstream may terminate this Agreement at the end of a Subscription Term unless Subscriber continues to pay Subscription Fees for the Products. Subscription Fees are nonrefundable. Rawstream may audit its systems to confirm Subscriber’s authorized use of the Products at any time or, upon reasonable notice, at Subscriber’s site. Subscriber may not rent, lease or timeshare the Products or provide subscription services for the Products or permit others to do so. Subject to the terms of this Agreement, Subscriber may allow its agents and independent contractors to use the Products solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Products by any other entity is forbidden and a violation of this Agreement. Any source code provided to Subscriber by Rawstream is subject to the terms of this Agreement.
3. Provision of SaaS Web
3.1 Rawstream will use commercially reasonable efforts to provide SaaS Web for the Subscription Term.
3.2 If Rawstream determines that the security or proper function of SaaS Web would be compromised due to, hacking, denial of service attacks or other activities originating from or directed at Subscriber’s network, Rawstream may immediately suspend SaaS Web until the problem is resolved. Rawstream will promptly notify and work with Subscriber to resolve the issues.
3.3 If SaaS Web are suspended or terminated, Rawstream will reverse all configuration changes made during SaaS Web. It is Subscriber’s responsibility to make the server configuration changes necessary to reroute Web Content for SaaS Web.
3.4 Rawstream may modify, enhance, replace, or make additions to the Products. Rawstream may use Malware, Spam, and other information passing through the Products for the purposes of developing, analyzing, maintaining, reporting on, and enhancing the Rawstream Products and services.
3.5 Prior to enrollment and at any time during the Subscription Term, Rawstream may test whether Subscriber’s email system is acting as an Open Relay. If Rawstream finds the system is an Open Relay, Rawstream will inform Subscriber and may suspend subsciption until the problem is resolved.
3.6 If Subscriber is using the Products to distribute Spam or Malware, Rawstream may suspend SaaS Web until the problem is resolved.
3.7 If in any one (1) calendar month the Average Emails per Seat is greater than thirty thousand (30,000), Rawstream may terminate subscription upon thirty (30) days prior written notice to Subscriber.
3.8 If in any one (1) calendar month the Average Bandwidth Per Seat is greater than 5Mbps, Rawstream may terminate Subscriber’s subscription upon thirty (30) days prior written notice to Subscriber.
4. Subscriber Obligations.
4.1 Subscriber will (a) comply with all applicable laws, statutes, regulations and ordinances, (b) only use the Products for legitimate business purposes which may include sending and receiving business and personal email or Web Content by its employees, and (c) not use the Products to transmit Spam, Malware, or excessive email.
4.2 Subscriber must (a) have the authority, rights, or permissions to use all domains registered to the Products, (b) obtain any necessary consents from its employees, and (c) not use the Products to filter, screen, manage or censor Internet content for consumers without permission from the affected consumers and Rawstream’s express prior written approval which may be withheld in Rawstream’s sole discretion.
4.3 If in any one (1) calendar month the Average Emails Per Seat is greater than ten thousand (10,000), Subscriber will make reasonable efforts to implement and maintain an accurate list of all valid email addresses belonging to Subscriber for which Rawstream scans inbound or outbound email.
4.4 Subscriber will defend, indemnify and hold Rawstream harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any claims, demands, suits, or proceedings (“Claims”) made or brought against Rawstream by a third party alleging or related to Subscriber’s (i) violation of its obligations in this Section 4; (ii) infringement of intellectual property rights; (iii) civil or criminal offenses; (iv) transmission or posting of obscene, indecent, or pornographic materials; (v) transmission or posting of any material which is slanderous, defamatory, offensive, abusive, or menacing or which causes annoyance or needless anxiety to any other person; or (vi) transmission of information through the Products.
5. Technical Support.
Standard technical support includes online website and/or portal access, telephone support during business hours, and Software Upgrades for the Products during the Subscription Term upon payment of the Subscription Fees. Database Updates and Software Upgrades will be provided to Subscriber only if Subscriber has paid the appropriate Subscription Fees for all Seats and/or servers. Rawstream may require Subscriber to install Software Upgrades up to and including the latest release. Enhanced support offerings and services (including installation, deployment, and consulting services) are only available for additional cost and are also subject to the terms of this Agreement.
6. Intellectual Property Rights.
The Products and all related intellectual property rights are the exclusive property of Rawstream or its licensors. All right, title and interest in and to the Products, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Products remain exclusively with Rawstream or its licensors. The Products are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Products. The Products contain material that is protected by patent, copyright and trade secret law, and by international treaty provisions. Subscriber may not remove any proprietary notice of Rawstream or any third party. The Products include software products licensed from third parties. Such third parties have no obligations or liability to Subscriber under this Agreement but are third party beneficiaries of this Agreement. All rights not granted to Subscriber in this Agreement are reserved to Rawstream. No ownership of the Products passes to Subscriber. Rawstream may make changes to the Products at any time without notice. Except as otherwise expressly provided, Rawstream grants no express or implied right under Rawstream patents, copyrights, trademarks, or other intellectual property rights. Subscriber may maintain one (1) copy of the Software for backup purposes only. Subscriber may not remove any proprietary notice of Rawstream or any third party from any copy of the Products, without Rawstream’s prior written consent.
7. Protection and Restrictions.
7.1 Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, prototypes, equipment, technical data, trade secrets and know-how, product plans, Products, services, suppliers, customer lists and customer information, prices and costs, markets, software, databases, developments, inventions, processes, formulas, technology, employee information, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information), which is designated as “Confidential,” “Proprietary” or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Receiving Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which the Receiving Party can document (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality; (iii) is already in the possession of the Receiving Party at the time of disclosure; (iv) is lawfully obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.2 Subscriber will take all reasonable steps to safeguard the Products to ensure that no unauthorized person has access and that no unauthorized copy, publication, disclosure or distribution, in any form is made. The Products contain valuable, confidential information and trade secrets and unauthorized use or copying is harmful to Rawstream. Subscriber may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Products or any part thereof. Subscriber may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Products, nor shall Subscriber attempt to create the source code from the object code for the Software. Any third party software included in the Products may only be used in conjunction with the Products, and not independently from the Products. Subscriber may not, and shall not allow third parties to, publish, distribute or disclose the results of any benchmark tests performed on the Products without Rawstream’s prior written approval. Additional charges may apply if Subscriber assigns more than twenty (20) administrators to administer certain Rawstream products.
8. Limited Warranty.
8.1 For the Subscription Term, Rawstream warrants that the Products will operate in substantial conformance with the then-current Rawstream published documentation under normal use. Rawstream does not warrant that: (A) the Products will (i) be free of defects, (ii) satisfy Subscriber’s requirements, (iii) operate without interruption or error, (iv) always locate or block access to or transmission of all desired addresses, emails, Malware, applications and/or files, or (v) identify every transmission or file that should potentially be located or blocked; or (B) data contained in the Databases will be (i) appropriately categorized or (ii) that the algorithms used in the Products will be complete or accurate.
8.2 Rawstream will use reasonable efforts to remedy any significant non-conformance in the Products which is reported to Rawstream and that Rawstream can reasonably identify and confirm. Rawstream at its discretion will repair or replace any such non-conforming or defective Products, or refund a pro-rata portion of the unused Subscription Fees paid for the remainder of the then-current term. This paragraph sets forth Subscriber’s sole and exclusive remedy and Rawstream’s entire liability for any breach of warranty or other duty related to the Products. Any unauthorized modification of the Products, tampering with the Products, use of the Products inconsistent with the accompanying documentation, or related breach of this Agreement voids the warranty. EXCEPT AS EXPLICITLY STATED AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS.
9. Limitation of Liability.
Rawstream, ITS AFFILIATES, ITS LICENSORS OR RESELLERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF Rawstream HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Rawstream’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER TO Rawstream FOR THE APPLICABLE PRODUCTS OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCTS THAT DIRECTLY CAUSED THE LIABILITY.
10. Term and Termination.
This Agreement is effective until the end of the Subscription Term, or until terminated by either party. Product evaluation subscriptions are available for a period of up to thirty (30) days and are subject to the terms and conditions of this Agreement. Evaluation subscriptions may only be used to evaluate and facilitate Subscriber’s decision to purchase a subscription to Products. At the end of the evaluation period, Subscriber must either pay the applicable Subscription Fees or this Agreement terminates as related to the evaluation. Subscriber’s continued use of the Products after an evaluation period is subject to this Agreement. Subscriber may terminate this Agreement at any time upon notice to Rawstream however, Subscriber is not entitled to a refund of any prepaid or other fees. Rawstream may terminate this Agreement if Rawstream finds that Subscriber has violated the Agreement. Upon notification of termination by either party, Subscriber must uninstall any Software, cease using and destroy or return all copies of the Products to Rawstream, and to certify in writing that all known copies thereof, including backup copies, have been destroyed. Sections 1, 6-10, and 14 shall survive the termination of this Agreement.
11. Data Privacy.
Subscriber will comply with all applicable laws and regulations, including those of other jurisdictions that may apply to Subscriber, concerning the protection of personal data. Subscriber must obtain any required employee consents addressing the interception, reading, copying or filtering of emails and their attachments. Neither party will use any data obtained via the Products for any unlawful purpose.
12. Government Restricted Rights.
The Products are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR 52.227-14 and DFAR 252.227-7013 et seq. or its successor. Use of the Products by the U.S. Government constitutes acknowledgment of Rawstream’s proprietary rights therein. Contractor or Manufacturer is Rawstream.
The Products are subject to export controls of the United States and other countries (“Export Controls”). Export or diversion contrary to U.S. law is prohibited. U.S. law prohibits export or re-export of the software or technology to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). Subscriber represents and warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the software or technology for any Prohibited Uses; and that it will comply with Export Controls.
For the purposes of customer service, technical support, and as a means of facilitating interactions with its end-users, Rawstream may periodically send Subscriber messages of an informational or advertising nature via email, and provide account information to related third-parties. Subscriber may choose to “opt-out” of receiving these messages or information sharing by sending an email to email@example.com requesting the opt-out. Subscriber acknowledges and agrees that by sending such email and “opting out” it will not receive emails containing messages concerning upgrades and enhancements to Products. However, Rawstream may still send emails of a technical nature. Subscriber acknowledges that Rawstream may use Subscriber’s company name only in a general list of Rawstream customers. Rawstream owns any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Subscriber relating to the Products. Subscriber may not transfer any of Subscriber’s rights to use the Products or assign this Agreement to another person or entity, without first obtaining prior written approval from Rawstream. Notices sent to Rawstream shall be sent to the attention of the Counsel firstname.lastname@example.org. Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by Dublin, Ireland , without regard to or application of choice of laws, rules or principles. Both parties hereby consent to the exclusive jurisdiction of the competent courts in Dublin, Ireland . Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities. This Agreement constitutes the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties or posted by Rawstream at http://www.rawstream.com/tos. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as reasonably to affect the intention of the parties. Rawstream is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Rawstream.[GeoTargeted to=”US,UK,A1″]Welcome![/GeoTargeted]