SYMANTEC.CLOUD SERVICES AGREEMENT

Transcription

1 SYMANTEC.CLOUD SERVICES AGREEMENT IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS SYMANTEC.CLOUD SERVICES AGREEMENT ( AGREEMENT ) CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW). IF YOU ARE LOCATED IN THE AMERICAS, "SYMANTEC" MEANS SYMANTEC CORPORATION, A DELAWARE CORPORATION, MAINTAINING ITS PRINCIPAL PLACE OF BUSINESS AT 350 ELLIS STREET, MOUNTAIN VIEW, CA UNITED STATES OF AMERICA. "AMERICAS" MEANS THE REGIONS OF NORTH AMERICA, LATIN AMERICA, ANDEAN REGION, CENTRAL AMERICAS & CARIBBEAN, AND SOUTHERN LATIN AMERICA. IF YOU ARE LOCATED IN THE ASIA PACIFIC RIM COUNTRIES, "SYMANTEC" MEANS SYMANTEC ASIA PACIFIC PTE LTD, A SINGAPORE CORPORATION, MAINTAINING ITS PRINCIPAL PLACE OF BUSINESS AT 6 TEMASEK BOULEVARD, 11-01, SUNTEC CITY TOWER 4, SINGAPORE , OR IF YOU ARE LOCATED IN EUROPE, THE MIDDLE EAST OR AFRICA, "SYMANTEC" MEANS SYMANTEC SOFTWARE (LUXEMBOURG) S.À.R.L. A LUXEMBURG CORPORATION, MAINTAINING ITS PRINCIPAL PLACE OF BUSINESS AT 26 BOULEVARD ROYAL, L-2449 LUXEMBOURG. SYMANTEC IS WILLING TO ENTER INTO THIS AGREEMENT WITH YOU AS AN INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE RECEIVING SERVICES (REFERENCED BELOW AS YOU, YOUR OR CUSTOMER ) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND SYMANTEC. BY CLICKING THE I AGREE OR YES BUTTON OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR UTLIZING THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, CLICK CANCEL, NO OR THE CLOSE WINDOW BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO FURTHER USE OF THE SERVICES OR ANY ACCOMPANYING SOFTWARE. SYMANTEC AND CUSTOMER ACKNOWLEDGE THAT THIS AGREEMENT IS INTENDED TO BE BETWEEN BUSINESS CUSTOMERS AND IS NOT MEANT FOR THE PROVISION OF CONSUMER-RELATED SERVICES. YOU AGREE THAT UNLESS YOUR ORDER EXPRESSLY IDENTIFIES THE SERVICES PURCHASED AS OPT-OUT TRIAL SERVICES (AS DEFINED BELOW), THEN SECTION B OF THIS AGREEMENT WILL NOT APPLY TO YOU. A. ORDER AND ACCEPTANCE Any Service or prices described on the Symantec.cloud store are an invitation to treat only. Such Services or prices are subject to availability and do not constitute an offer to sell by Symantec. An order submitted by You via the Symantec.cloud store constitutes an offer to purchase or trial the Service, as applicable, pursuant to the terms and conditions of this Agreement ( Order ). Upon submission of an Order, Symantec may send You a communication acknowledging receipt of such Order. You agree that such acknowledgement does not constitute acceptance of such Order. In addition, pre-authorizing a credit card does not constitute acceptance of the Order. Occasionally an error may occur in the price or description of a Service on the Symantec.cloud store. In such case, Symantec will contact You for instructions and You will have the opportunity to cancel the Order or proceed with the Order based on the revised price or description of the Service. Symantec may reject an Order at any time prior to acceptance at Symantec s discretion. Symantec s acceptance of an Order only becomes effective when (i) Symantec sends You a communication which expressly states that the Order has been accepted (according to Symantec s logs); or (ii) Symantec provides the Service ordered to You. B. OPT-OUT TRIAL SERVICES. THE THIRTY (30) DAY OPT-OUT TRIAL SERVICES ( OPT-OUT TRIAL SERVICES ) GIVE YOU THE OPTION TO TRY OUT THE SERVICES FOR FREE. SIMPLY ENTER A CREDIT OR DEBIT CARD TO SET UP YOUR ACCOUNT. AFTER SYMANTEC ACCEPTS YOUR ORDER YOU WILL HAVE THIRTY (30) DAYS TO USE THE OPT-OUT TRIAL SERVICES COMPLETELY FREE OF CHARGE ( TRIAL PERIOD ). YOUR CARD WILL AUTOMATICALLY BE CHARGED WITHOUT ANY ADDITIONAL ACTION BY YOU (FOR THE AMOUNT OF YOUR INITIAL OPT-OUT TRIAL SERVICES PLUS ANY INCREASED QUANTITY) FOR EITHER THE TWELVE (12) MONTH; TWENTY-FOUR (24) MONTH; OR THIRTY-SIX (36) MONTH SUBSCRIPTION FEE THAT YOU HAVE SELECTED WITH YOUR OPT-OUT TRIAL SERVICES ORDER IN THE SYMANTEC.CLOUD STORE. THE AUTOMATIC CHARGE WILL APPEAR ON YOUR CARD STATEMENT WITHIN APPROXIMATELY THREE (3) DAYS FROM THE END OF YOUR TRIAL PERIOD. TO AVOID BEING CHARGED, SIMPLY CANCEL YOUR OPT-OUT TRIAL SERVICES ORDER AT ANY TIME BEFORE THE TRIAL PERIOD ENDS BY LOGGING IN TO THE SYMANTEC.CLOUD PORTAL, NAVIGATING TO THE SERVICES SECTION AND THEN CLICKING THE CANCEL LINK. YOU ACKNOWLEDGE THAT DURING THE TRIAL TERM, THE SERVICE LEVEL AGREEMENTS SECTION OF THE SERVICE DESCRIPTIONS (AS DEFINED BELOW) AND ITS CORRESPONDING SERVICE CREDITS SHALL NOT APPLY AND NO SUCH SERVICE CREDITS SHALL BE ISSUED. FOR THE AVOIDANCE OF DOUBT, IF YOU DO NOT GIVE SYMANTEC NOTICE OF TRIAL TERMINATION DURING THE TRIAL PERIOD, THE SERVICE LEVEL AGREEMENTS SECTION OF THE SERVICE DESCRIPTIONS SHALL COME INTO FULL FORCE AND EFFECT DURING THE PAID TERM OF SERVICES. C. SYMANTEC.CLOUD AUTOMATIC RENEWAL SERVICE & DURATION. YOUR ORDER TODAY ALSO INCLUDES ENROLLMENT IN THE SYMANTEC.CLOUD AUTOMATIC RENEWAL SERVICE ( AUTOMATIC RENEWAL SERVICE ), ALLOWING YOU TO CONVENIENTLY MAINTAIN YOUR ORDER AND CRITICAL PROTECTION. EACH ORDER SHALL CONTINUE IN FORCE FOR AN INITIAL PERIOD OF TWELVE (12) CALENDAR MONTHS; TWENTY-FOUR (24) CALENDAR MONTHS; OR THIRTY-SIX (36) CALENDAR MONTHS PURSUANT TO THE ELECTION YOU MAKE IN YOUR ORDER IN THE SYMANTEC.CLOUD STORE (THE

2 MINIMUM PERIOD ) FROM THE DATE THE SERVICE ORDERED IS FIRST MADE AVAILABLE TO YOU. AFTER THE MINIMUM PERIOD, AN ORDER WILL AUTOMATICALLY RENEW FOR ADDITIONAL TWELVE (12) MONTH PERIODS (EACH A RENEWAL TERM ). BY ENROLLING IN THE AUTOMATIC RENEWAL SERVICE, YOU AUTHORIZE SYMANTEC TO AUTOMATICALLY CHARGE THE THEN-CURRENT ANNUAL RENEWAL SUBSCRIPTION FEE FOR THE SERVICES THAT YOU HAVE SELECTED FOR YOUR PURCHASE TODAY (PLUS APPLICABLE TAXES) TO YOUR CREDIT OR DEBIT CARD WITHOUT ANY ADDITIONAL ACTION BY YOU PRIOR TO THE EXPIRATION OF YOUR SUBSCRIPTION. YOU WILL BE SENT AN NOTIFICATION SHORTLY BEFORE YOUR ORDER EXPIRES AND ANY PAYMENT IS BILLED TO ALERT YOU THAT YOUR ORDER WILL BE AUTOMATICALLY RENEWED. YOU MAY CANCEL THE AUTOMATIC RENEWAL SERVICE BY SENDING AN E- MAIL REQUEST TO SUPPORT@MESSAGELABS.COM. FOR THE AVOIDANCE OF DOUBT, SUCH REQUEST TO CANCEL THE AUTOMATIC RENEWAL SERVICE SHALL NOT ENTITLE YOU TO A REFUND FOR ANY FEES CHARGED BY SYMANTEC FOR SERVICES RELATED TO YOUR THEN-CURRENT TERM. SUCH E- MAIL REQUEST MUST BE PROVIDED PRIOR TO THE EXPIRATION OF THE MINIMUM PERIOD OR ANY CURRENT RENEWAL TERM. FOR THE PURPOSES OF THIS AGREEMENT, TERM" MEANS THE MINIMUM PERIOD AND ALL RENEWAL TERMS. D. SERVICE DESCRIPTIONS The Service ordered (the Service ) shall be provided by Symantec in accordance with the Service-specific terms and service levels ( Service Descriptions ) concurrently agreed and accepted by You with acceptance of this Agreement and such Service Descriptions are hereby incorporated into this Agreement. 1. Supply of Service 1.1. If at any time continued provision of the Service would compromise the security of the Service due without limitation, to hacking attempts, denial of service attacks, mail bombs or other malicious activities either directed at or originating from Customer s domains, Customer agrees that Symantec may temporarily suspend Service to Customer. In such an event, Symantec will promptly inform Customer and will work with Customer to resolve such issues, re-instating Service at the earliest opportunity Subject to applicable legislation, Symantec may provide the Service from anywhere in the world and may, at any time, transfer the provision of the Service from one location to another Symantec may update the Service at any time in order to maintain the effectiveness of the Service Should the Services be suspended or terminated for any reason whatsoever, Symantec shall reverse all configuration changes made upon provisioning the Service and it shall be the responsibility of Customer to undertake all other necessary configuration changes to its mail servers, and to inform its ISP of the need to reroute Internet traffic The Service is provided to Customer for its internal use and Customer shall not resell the Service to any third party If applicable, Customer agrees to provide and maintain a list of specific addresses to receive the Service (the Validation List ). It is Customer s responsibility to verify such Validation List prior to the Service being made available and throughout the term of the Agreement. CUSTOMER ACKNOWLEDGES THAT INBOUND SENT TO ADDRESSES NOT SPECIFIED OR INCORRECTLY ENTERED IN THE VALIDATION LIST WILL BE BLOCKED AUTOMATICALLY. CUSTOMER AGREES THAT SYMANTEC CAN ACCEPT NO LIABILITY DUE TO THE NON DELIVERY OF SUCH RESULTING FROM ERRORS IN OR OMISSIONS OF ADDRESSES CUSTOMER ACKNOWLEDGES THAT THE SERVICE WILL BE PROVISIONED WITH SYMANTEC S DEFAULT SETTINGS APPLIED FROM THE OUTSET AS DETAILED IN THE RELEVANT SERVICE DESCRIPTIONS AND THAT IT IS CUSTOMER S SOLE RESPONSIBILITY TO CONFIGURE THE SERVICE THROUGH THE APPLICABLE SYMANTEC PORTAL OR WEBSITE TO ITS OWN REQUIREMENTS. 2. Customer s Obligations 2.1. Customer will provide Symantec with all technical data and all other information Symantec may reasonably request from time to time to allow Symantec to supply the Service to Customer. All information Customer supplies will be complete, accurate and given in good faith. Such information will be treated as Confidential Information under the terms of this Agreement Customer shall not allow its systems to: (i) act as an Open Relay or Open Proxy; (ii) send or receive volume mail instigated by Customer; or (iii) send Spam. Symantec reserves the right at any time to test Customer s compliance with this Clause Customer recognizes that information sent to and from Customer will pass through the Service and accordingly Customer agrees to use the Service for legitimate and lawful business purposes only For the avoidance of doubt, any breach of Clauses 2.2 or 2.3 will constitute a material breach of this Agreement and in addition to Symantec's termination rights set out in Clause 9 below, Symantec may, at any time and at Symantec s sole option, suspend all or part of the Service immediately and until the breach is remedied. 3. Charges and Payment 3.1. Customer will be charged for the Service from the date that the Service is made available to Customer or upon the expiration of the Trial Period if the Customer has selected Opt-Out Trial Services. The Customer shall pay the total fees in advance for the entire Minimum Period or Renewal Term, as applicable. If Symantec has been unable to make the Service available due to a failure by Customer to provide required information or due to Customer s act or omission, Customer shall be obliged to pay for the Service as if the Service had been made available The initial payment shall comprise the recurring charges and other one-time charges identified in the Order and at the currency specified in the Order. Customer acknowledges and agrees that Customer s debit or credit card will be charged for such payment.

3 3.3. If at any time the number of Users, number of Members, amount of storage or other chargeable units exceeds the purchased amount, the Customer must place an additional order for such excess Symantec reserves the right having given Customer reasonable prior written notice to temporarily suspend Service to Customer in the case of reversal of charges to Customer s credit or debit card or non-payment Charges for the Service may vary and Customer will pay such charges provided that such variation was provided at least thirty (30) days, in writing, prior to the expiry of the then current Minimum Period or Renewal Term. Such change will be effective from the commencement of the next Renewal Term All Services purchased under this Agreement are exclusive of any value added and other applicable taxes. Such taxes will be added to any invoice for the Service at the rate current on the invoice date. 4. Warranties 4.1. Symantec will provide the Service with all reasonable skill, care and diligence in accordance with industry standards TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIENT AGREES THAT REMEDIES, REPRESENTATIONS, CONDITIONS AND WARRANTIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REPRESENTATION, CONDITION, REMEDY OR WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. Limitation Of Liability 5.1. Symantec does not limit its liability (if any) in respect to the following: (i) fraud, or (ii) the death of, or personal injury to, any person caused by negligence To the maximum extent permitted by applicable law and subject to Clauses 5.1 and 5.3, Symantec s total aggregate liability under or in relation to this Agreement (and whether such liability arises due to breach of contract, negligence or for any other reason) shall be limited to the greater of: (i) the total amount payable by the Customer to Symantec during the first twelve (12) months of the Service; or (ii) the actual amount paid by the Customer to Symantec during the previous twelve (12) months of the Service. Such limits shall apply to each event or series of connected events To the maximum extent permitted by applicable law and subject to Clause 5.1 Symantec does not accept any liability under or in relation to this Agreement or its subject matter (whether such liability arises due to an indemnity, tort, negligence, breach of contract, misrepresentation or for any other reason) for any loss of profits, loss of sales or turnover, loss of or damage to reputation, loss of contracts, loss of customers, loss of, or loss of use of, any software or data, loss of use of any computer or other equipment or plant, wasted management or other staff time, losses or liabilities under or in relation to any other contract, indirect loss or damage, consequential loss or damage, loss(es) directly or indirectly due to network access by third parties; or special loss or damage. For the purposes of this Clause 5.3 the term "loss" includes a partial loss or reduction in value as well as a complete or total loss. 6. Intellectual Property Rights 6.1. The intellectual property rights in the Service and any hardware or software used in connection with the Service is and will at all times remain Symantec s property or that of Symantec's licensors. 7. Intellectual Property Rights Indemnity 7.1. In the event that the Service infringes any third party rights, Symantec will indemnify Customer against any loss or damage and shall defend and/or settle any third party claim that the Service infringes provided always that Customer promptly notifies Symantec of any such claim in writing, gives Symantec sole control of any such action or proceedings and such assistance as it may reasonably require to settle and/or defend such action or proceedings (at Symantec reasonable expense). Any award of costs, expenses and/or damages shall belong to Symantec. In such event, Symantec shall, at its option: (i) procure for Customer the right to continue to use the Service; (ii) make the Service available without infringing so far as Symantec is aware of any third party Intellectual Property Rights; or (iii) terminate this Agreement upon written notice to Customer provided, however, that Symantec would refund to Customer a pro rata refund of prepaid fees that relate to the period after termination The indemnity in Clause 7.1 above shall not apply to any infringement resulting from: (i) use of the Service which does not comply with the uses permitted under this Agreement;(ii) any modification or change to the Service carried out by Symantec according to Customer s specifications; or (iii) the combination of the Service with any third party product and/or service or modification undertaken by Customer without the prior written consent of Symantec. 8. Termination 8.1 Either party may terminate this Agreement with immediate effect if the other party commits any material breach of any of the terms herein and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified of the breach under this Clause. 8.2 Either party may terminate this Agreement with immediate effect if an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or if a receiver, administrator or administrative receiver is appointed of any of the other party s assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt. 9. Effects of Termination 9.1. Termination of this Agreement shall be without prejudice to any rights or liabilities accrued at the date of termination.

4 9.2. Upon termination Symantec shall be entitled to cancel the provision of Service to Customer and all fees become due and payable. Upon such termination all rights of Customer under this Agreement shall terminate on the termination date The following Clauses shall survive termination: (i) Charges and Payment; (ii) Limitation of Liability; (iii) Intellectual Property Rights Indemnity; (iv) Effects of Termination; (v) Confidentiality; and (vi) General. 10. Confidentiality Each party agrees and undertakes that during the term of this Agreement and thereafter in perpetuity it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party any information of a confidential nature (including without limitation trade secrets and information of commercial value) which may become known to that party from the other party ("Confidential Information") unless the information (i) is public knowledge or (ii) is already known to that party at the time of disclosure or (iii) subsequently becomes public knowledge other than by breach of this Agreement or (iv) subsequently comes lawfully into the possession of that party from a third party or (v) is required to be disclosed by law or court order provided that the recipient promptly notifies the discloser in writing of the requirement for disclosure and limits the content and distribution of such disclosure to the extent reasonably possible To the extent necessary to implement the provisions of this Agreement each party may disclose the Confidential Information to those of its employees and sub-suppliers as may be reasonably necessary provided that before any such disclosure each party shall make those employees and sub-suppliers aware of its obligations of confidentiality under this Agreement and shall procure compliance by those employees and sub-suppliers with them Symantec recognizes and confirms that the content sent to or received from Customer by the Service is confidential. In the normal provision of the Service Symantec would not access, read or copy s, instant messages, web pages or their attachments other than by electronic methods for the purposes of providing the Service. However, Symantec reserves the right to utilize the Virus, Spam, malware, adware and spyware related content of such s, instant messages, web pages and their attachments solely for the purposes of: (i) maintaining and improving the performance and the integrity of the Service; and (ii) making available to licensors of the Service any information passing through the Service which may be of interest to the licensors solely for the purpose of further developing and enhancing the Service. Where Symantec exercises the rights under this Clause 10.3, Symantec will use all reasonable endeavours to keep confidential all information received from Customer or for Customer in connection with the Service. 11. Force Majeure Excepting any obligation to make payment hereunder, the obligations of each party under this Agreement shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by a cause beyond its reasonable control. In the event the cause continues for more than thirty (30) days after written notification, either party may terminate this Agreement immediately upon written notice to the other party. 12. Data Privacy and Regulation of Investigatory Powers Customer acknowledges that information processed in the course of performing the Services may contain personally identifiable information of individuals and associated metadata and that the processing of such information may therefore involve the processing of personal data. With respect to any and all data, including, but not limited to, third party data, personally identifiable information and associated metadata obtained by Symantec pursuant to Customer s use of the Services (collectively, the Data ), Customer shall take all necessary measures to ensure that it, and all its employees, are aware that their personal data may be processed as part of the Services and that they have given their consent to such processing as well as complied with their responsibilities as data controller or data subjects, as applicable, in accordance with applicable privacy laws and/or regulations ( Privacy Laws ). Customer understands and agrees that Symantec has no control or influence over the content of the Data processed by Symantec and that Symantec performs the Services on behalf of Customer Notwithstanding the generality of the foregoing obligation, as required by the Privacy Laws, Customer shall use all reasonable efforts to ensure that it informs (for example, via a banner message on s) individuals who use any communications system covered by the Services that communications transmitted through such system may be intercepted. 13. General No amendment or variation of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each of the parties to it, except as otherwise stated herein Customer may not transfer or assign this Agreement without Symantec's prior written consent which shall not be unreasonably withheld. Symantec may assign, sub-contract or sub-let this Agreement or any part thereof The failure of a party to exercise or enforce any right under this Agreement shall not be deemed a waiver of that right nor operate to bar the exercise or enforcement of it at any time thereafter If any provision of this Agreement becomes invalid, illegal or unenforceable then such provision shall be severed and the remainder of this Agreement shall continue in full force and effect This Agreement constitutes the entire understanding between Symantec and Customer with respect to the Service and expressly excludes and/or supersedes any previous statements or agreements between Symantec, or its agents, and Customer whether written or oral relating to the provision of the Service. Any conflicting terms and conditions on Customer's order shall be null and void All disputes between the parties arising out of or relating to this Agreement or the breach, termination or validity thereof shall be referred by either party in writing, first to each party s representative. The representatives shall meet and attempt to resolve the dispute within a period of thirty (30) days from the date of referral of the dispute to them Any notice required to be given pursuant to this Agreement shall be in writing and shall be given by delivering the notice by hand, or by sending the same by prepaid first class post (airmail if to an address outside the country of posting) to the Customer address given during Customer s enrolment process in the Symantec.cloud store or to Symantec at the

5 address listed above in Customer s applicable region. Notice given according to the above procedure shall be deemed given at the time of delivery (if by physical delivery) or when received (if by post) Customer hereby acknowledges and agrees that the Services and any related technology ( Controlled Technology ) may be subject to applicable export control and trade sanction laws, regulations, rules and licences, including without limitation Council Regulation (EC) No. 428/2009, the U.K. Export Control Act 2002, the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, any legislation replacing the foregoing and any orders issued under the foregoing. Controlled Technology may require a license before export. Customer agrees to comply with all relevant laws, including without limitation the laws of any country from which the Controlled Technology is exported or re-exported. All Services are currently prohibited for export or re-export to Cuba, North Korea, Iran, Syria and Sudan. Customer shall not use or allow use of Services in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons. For further export terms that govern individual Services, please refer to the relevant Service Descriptions Customer agrees to indemnify Symantec against and hold Symantec harmless from any and all claims, actions, losses, costs and expenses Symantec may incur as a result of: (i) any breach by Customer of Clauses 2.3 and/or 12; (ii) any third party claim in relation to information passing through the Service to or from Customer; (iii) any third party claim in relation to the interception of communications by the Service; and/or (v) any third party claim in relation to the Customer s use of the Service in breach of Privacy Laws This Agreement is only available in the English language If You are located in the Americas, this Agreement will be governed by, and You submit to, the laws and jurisdiction of the State of California, United States of America. If You are located in the Asia Pacific Rim or Japan, this Agreement will be governed by, and You submit to, the laws and jurisdiction of Singapore. If You are located in Europe, the Middle East or Africa, this Agreement will be governed by, and You submit to, the laws and jurisdiction of England and Wales.

6 SYMANTEC BACKUP EXEC.CLOUD SERVICE DESCRIPTIONS 1. Definitions means any SMTP message sent or received via the Service; Normal Working Hours means between 8:30am and 5:30pm EST, Monday to Friday excluding public holidays as recognized in the US; Open Proxy means a proxy server configured to allow unknown or unauthorized third parties to access, store or forward DNS, web pages or other data; Open Relay means an server configured to receive from an unknown or unauthorized third party and forward the to one or more recipients that are not users of the system to which that server is connected. Open Relay may also be referred to as Spam relay or public relay ; Spam means unsolicited commercial ; Tower means a cluster of load balanced servers; User means a person, mailbox or machine that uses the Service; and Virus means a piece of program code, including a self-replicating element, usually disguised as something else which is designed so that it may infect other computer systems. 2. Introduction 2.1 Symantec is a hosted services provider specializing in Internet-level , Instant Messaging and Web security. 2.2 The Service is managed on a twenty-four (24) hours/day by seven (7) days/week basis from Symantec s Global Operations Center. The Service is monitored for hardware availability, service capacity and network resource utilization The Service is available to Customers who are permanently connected to the Internet with a fixed IP address. It cannot be provided to Customers whose systems are connected to the Internet via dial-up or ISDN lines or whose IP address is dynamically allocated. 3. Planned Maintenance 3.1. For the purposes of this Clause 3, Planned Maintenance means periods of maintenance of which Customer have been given seven (7) days prior notification by Symantec and which may cause disruption of Service due to non availability of Tower(s). Planned Maintenance shall not accumulate to more than eight (8) hours per calendar month and in any case shall not take place between 8am and 6pm (in the time zone in which a Tower is located) Wherever possible, Planned Maintenance will be carried out without affecting the Service. This will generally be achieved by carrying out Planned Maintenance during periods of anticipated low traffic and by carrying out Planned Maintenance on part, not all, of the network at any one time. During Planned Maintenance periods the traffic may be diverted round sections of the network not undergoing maintenance in order to minimize disruption to the Service Where emergency maintenance is necessary and is likely to affect the Service, Symantec will endeavour to inform the affected parties and will post an alert message as soon as possible and in any case within one (1) hour of the start of the emergency maintenance. 4. Technical Support 4.1. Symantec will on a twenty-four (24) hours/day by seven (7) days/week basis: a) provide technical support to Customer for problems with the Service; and b) liaise with Customer to resolve such problems. 5. Customer Service 5.1. Symantec will provide Customer service during Normal Working Hours to: a) receive and process orders for provisioning the Service; b) receive and process requests for modifications to the operational aspects of the Service; and c) respond to billing and invoicing queries Unless stated otherwise in the relevant Service Description, on receipt of a fully completed and actionable order or Service Change Request, the Symantec Global Provisioning Team will aim to provision the Service within twenty-seven (27) Normal Working Hours, provided that all the phases of technical due diligence have been completed. Symantec Backup Exec.cloud 1. Overview 1.1 Symantec Backup Exec.cloud is an online backup and recovery service. The service protects customers critical data by automatically streaming it to Symantec s off-site data centers. The data is encrypted during transmission and at rest. 1.2 In order to receive the Symantec Backup Exec.cloud Service, the Customer is required to install an agent on applicable end user computers and assign appropriate policies to utilize the service. The Symantec.cloud management portal is an administrator portal used for managing computers, policies, alerts and reports ( Management Portal ). 1.3 Customer may have to make some basic firewall changes to allow the agent to communicate and operate with the Symantec.cloud infrastructure.

7 1.4 Once the service has been configured in accordance with clauses 1.2 and 1.3, above, the Management Portal is used to manage the agent(s). 1.5 Symantec shall publish a list of supported computer operating systems for the agent and supported browser for the Management Portal. Customer acknowledges and accepts that Symantec may update and change this list on a regular basis without notice. 1.6 The agent on the computer shall backup the data to Symantec Data Centers based on the files/folders selected through Management Portal. 2. Management Portal 2.1 An integral part of the Service is Symantec s internet-based configuration, management and reporting tool designated as the Management Portal. The Management Portal is made available to the Customer via a secure password protected login which should not be disclosed to a third party. The Management Portal provides the facility for the Customer to view data and statistics on their use of the Service and offers a number of configuration and management facilities. 2.2 The Management Portal allows the Customer to configure its own policy based backup for the agents. 2.3 The Customer is responsible for implementing the configuration options in line with the Customer s acceptable computer use policy (or equivalent) via the Management Portal. Policies are configured on the computer group. 2.4 Changes made to the policy are visible immediately on the Management Portal, and are batched to push down to the agents when the endpoints are online and available. Effective policy setting on individual agents can be viewed on the Management Portal. 3. Logs and Reports 3.1 All logs and reports reported by the agent are stored on, viewable and downloadable from the Management Portal, for twelve (12) months after which the logs are deleted. 4. Notifications 4.1 Customer may configure the Symantec Backup Exec.cloud Service to send an automatic notification to configured recipients based on the alerts rule, configurable in the Management Portal. 4.2 Customer can create, delete and customize notifications using the Management Portal. 5. Support 5.1 Support includes: Walk through of the Management Portal including a service description and Q&A session. (This does not include assistance with the set up of policies or analysis of the effectiveness of the policies); Administrator s Guide; and User Guide. 6. Additional Terms 6.1 All Customer data stored or archived hereunder by Symantec or its third party vendors is the sole property of Customer ( Customer Data ), and nothing herein conveys to Symantec or its vendors any legal or equitable right, title, or interest into the Customer Data. 6.2 Customer is solely responsible for Customer s conduct related to the Symantec Backup Exec.cloud Service and any Customer Data stored on the Backup Exec.cloud Service. Customer specifically agrees that it will not use the Backup Exec.cloud Service to: violate any laws or regulations, including without limitation, uploading, transmitting, storing or otherwise backing up any obscene, indecent, or pornographic content or data on the Service in violation of applicable law; infringe the intellectual property or rights of third parties; or transmit any material that contains viruses or other harmful computer code or files such as Trojan horse, worms or time bombs. 6.2 Customer may upload, store or otherwise backup Customer Data up to the total amount of storage or allocated quota Customer has purchased from Symantec as indicated on the service agreement ( Maximum Storage ). In the event Customer exceeds the Maximum Storage, Symantec reserves the right to restrict Customer s ability to backup data until Customer reduces its storage usage or subscribe to a storage plan with higher quotas. 6.3 Customer may access Customer Data during the Term. Following termination or expiration of the Term, the Customer Data will no longer be available for access by the Customer. Symantec will continue to store and maintain the Customer Data ( Stored Data ) for a period of sixty (60) days following the date of expiration or termination of the Term ( Post-Termination Retention Period ). During the Post-Termination Retention Period, Customer may elect to renew the Term and pay the applicable fees, which will allow Customer to have access to the Stored Data. Following expiration of the Post-Termination Retention Period, the Customer Data will be deleted by Symantec. 6.4 THE CUSTOMER ACKNOWLEDGES AND AGREES THAT PART OR ALL OF THE SERVICE MAY BE PERFORMED IN THE UNITED STATES OF AMERICA AND THAT THE CUSTOMER IS RESPONSIBLE FOR OBTAINING ALL CONSENTS AND APPROVALS REQUIRED TO EFFECT THE TRANSFER OF DATA. THE CUSTOMER FURTHER ACKOWLEDGES AND AGREES THAT SYMANTEC CANNOT ACCEPT ANY RESPONSIBILITY FOR ANY CORRESPONDING BREACH OF APPLICABLE LEGISLATION OR REGULATIONS.

8 Service Level Agreements 1. Definitions 1.1. The following words shall have the following meanings for the purposes of this Service Level Agreement: Credit Request means the notification which Customer must submit to Symantec by to with the subject line Credit Request (unless otherwise notified by Symantec); Monthly Charge means the monthly charge for the affected Services; Service Level means each of the Service parameters defined in this Service Level Agreement; 2. General 2.1. In the event that Customer believes it is entitled to a remedy in accordance with this Service Level Agreement, Customer must submit a Credit Request within ten (10) working days of the end of the calendar month in question. Customer recognizes that logs are only kept for a limited number of days and therefore any Credit Request submitted outside of the provided timeframe will be deemed invalid All Credit Requests will be subject to verification by Symantec in accordance with the applicable provisions of this Service Level Agreement This Service Level Agreement will not operate: (i) during periods of Planned Maintenance or emergency maintenance, periods of non-availability due to force majeure or acts or omissions of either Customer or a third party; (ii) during any period of suspension of service by Symantec in accordance with the terms of the Agreement or (iii) where Customer is in breach of the Agreement (including without limitation if Customer have any overdue invoices) The remedies set out in this Service Level Agreement shall be Customer s sole and exclusive remedy in contract, tort (including without limitation negligence) or otherwise in respect of levels of Service The maximum accumulative liability of Symantec under this Service Level Agreement in any calendar month shall be no more than one hundred percent (100%) of the Monthly Charge payable by Customer for the affected Service(s) x7 Technical Support and Fault Response 3.1 Symantec will on a twenty-four (24) hours/day by seven (7) days/week basis: a) provide technical support to Customer for problems with the Service; and b) liaise with Customer to resolve such problems. 3.2 Whenever Customer raises a problem, fault or request, for service information via telephone or with Symantec, its priority level is determined and it is responded to as defined in the table below: Definition Response Target Priority Level Critical Loss of Service 95% of calls responded to within 2 hours Major Partial loss of Service or Service impairment 85% of calls responded to within 4 hours Minor Potentially Service affecting or non-service affecting information request 75% of calls responded to within 8 hours 3.3 Faults originating from Customer s actions or requiring the actions of other service providers are beyond the control of Symantec and as such are specifically excluded from the fault response times above. 3.4 Subject to Clause 3.3, if Customer believes that it has experienced a delay in Symantec response to a request (outside the parameters defined in Clause 3.2 above) it may be entitled to a credit. Credit Requests must state the time, date and the log number of the incident. If eligible Customer will be credited in accordance with the table below: Priority Failure to meet target Percentage Credit of Monthly Charge Critical More than once in a calendar month 15 Major More than twice a calendar month 10 Minor More than three times in a calendar month 5

9 4. Symantec Backup Exec.cloud Availability 4.1 Symantec Backup Exec.cloud will be Available 100% of each calendar month, exclusive of Planned Maintenance and emergency maintenance windows. In this case, Available is defined as the Symantec hosted infrastructure being ready to synchronize policy information. For the purposes of calculating non-availability the following criteria will apply: a) the measurement will be performed by Symantec s monitoring systems (such measurement may be provided to the Customer upon written request), b) only the Symantec hosted infrastructure will be measured and such measurement excludes any nonavailability as a result of Customer network outage, a third party outage, or DNS issues outside of the direct control of Symantec. 4.2 For each one (1) percent or part thereof of non-availability beyond the availability target under this Section 5.2 in the calendar month in question, the Customer will be entitled to a credit equivalent to ten per cent (10%) of the monthly charges due to Symantec in relation to the Symantec Backup Exec.cloud Service, subject to a maximum of 100% of the monthly charges due in relation to the Symantec Backup Exec.cloud Service in any calendar month. The Customer may terminate the Symantec Backup Exec.cloud Service at its sole option if at any time this availability falls below ninety percent (90%) in any calendar month. The credit described in this Section 5.2 shall be Customer s sole and exclusive remedy in connection with any server unavailability for the Symantec Backup Exec.cloud Service.