HomeMy WebLinkAbout20183295.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: Proofpoint Email Security Solution
DEPARTMENT:
Information Technology DATE: 9/28/2018
PERSON REQUESTING: Ryan Rose
Brief description of the problem/issue:
As part of our continuous process to improve IT security, IT has a 2018 project to implement a new
anti-spam/anti-phishing technology for all county employees. The product requires a support
agreement to be signed by Weld County before implementation can begin. The county attorney's
office has reviewed the agreement and we are asking for approval of the BOCC in order to complete
the installation before the end of October.
What options exist for the Board? (include consequences, impacts, costs, etc. of options):
Authorize the chair to sign the agreement.
Do not authorize the chair to sign the agreement.
Recommendation:
We respectfully request the approval of the BOCC to move forward with the project. This new
technology will assist us in combating the dramatic increase in malicious email that all government
agencies are seeing. We appreciate the BOCC's support and approval of the agreement.
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro -Tern
Steve Moreno, Chair
Approve
Recommendation
Schedule
Work Session
6nalaet.g-e-
Other/Comments:
2018-3295
DocuSign Envelope ID: DC5DB497-E8FF-4792-9498-486F254094E1
proofpoint
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions ("General Terms") are made
Proofpoint, Inc., a Delaware corporation, with offices at 892 Ross Drive,
Weld County Board of County Commissioners with offices
as of September 20, 2018 ("Effective Date") between
Sunnyvale, CA 94089 USA "Proofpoint" and
at 1401 N, 17th Avenue, Greeley, CO 80632
("Customer")
The purpose of the General Terms is to create a single mechanism under which Customer may purchase Proofpoint Products. In addition
to the General Terms, Customer's purchase and use of Proofpoint Products shall also be subject to the Proofpoint Product Exhibit for
each Proofpoint Product purchased by Customer in the form as mutually agreed and executed by Customer and Proofpoint. In the event
of any conflict between the General Terms, each Product Exhibit, SOW (if applicable), and Purchase Order (as defined below), the order
of precedence will be the following: the applicable Product Exhibit(s), SOW(s), these General Terms, and then the applicable Purchase
Order(s); provided, however, in the event of any specific conflict between a Product Exhibit (or SOW) and the General Terms, the Product
Exhibit (or SOW) shall control solely with respect to the subject matter of that Product Exhibit, and if there is any specific conflict between
a Product Exhibit and SOW, the Product Exhibit shall control.
BY SIGNING BELOW, THE PARTIES AGREE THAT THIS AGREEMENT (AS DEFINED BELOW) IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND
SUPERSEDES ALL PROPOSALS OR PRIOR OR CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN, INCLUDING, BUT
NOT LIMITED TO, ANY TERMS CONTAINED IN CUSTOMER'S PURCHASE ORDER.
CUSTOMER: WELD COUNTY BOARD OF COUNTY
COMMISSIONERS
PROOFPOINT, INC.:
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Signature:
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Individual Signing:
STEVE MORENO
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Individual Signing:
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Title: CHAIR; BOARD OF COUNTY COMMISSIONERS
Title: CFO
Signing Date: OCT 1 5 2018
Signing Date: 9/27/2018
CUSTOMER ADDRESS FOR NOTIFICATIONS:
RYAN ROSE, DIRECTOR
WELD COUNTY DEPARTMENT OF INFORMATION TECHNOLOGY
1401 N. 17TH AVENUE
GREELEY, COLORADO 80632
PROOFPOINT. INC. ADDRESS FOR NOTIFICATIONS:
892 Ross Drive Sunnyvale,
CA 94089 IJSA Attn:
General Counsel
1. DEFINITIONS In the General Terms:
1.1 "Affiliate" means, with respect to a party, any entity
which directly or indirectly controls, is controlled by, or is under
common control with, such party "Control," for purposes of this
definition, means ownership or control, directly or indirectly, of
more than 50% of the voting interests of the subject entity
1.2 "Agreement" means the General Terms, each Product
Exhibit, each SOW (if any) and any other document executed by
the parties.
1.3 "Appliance(s)" means a virtual or hardware device
containing the Software.
1.4 "Confidential Information" has the meaning set forth
in Section 3
1.5 "Customer Data" means the Customer specific
configurations and rules implemented in the Proofpoint Products,
and any Customer content processed by the Proofpoint Products
(e g email text and attachments) that is not Personal Data.
1.6 "Customer Equipment" means Customer's computer
hardware, software and network infrastructure used to access
Software.
1.7 "Documentation" means the technical description of
the Proofpoint Product(s) contained in the then -current
Proofpoint Product descriptions made available by Proofpoint to
Customer upon license of the Proofpoint Product(s).
1.8 "Extension Term(s)" means each additional one-year
(or other agreed upon period) subscription term for which the
subscription term for a Proofpoint Product s extended pursuant
to Section 8
1.9 "Initial Term" means the initial subscription term for a
Proofpoint Product that is defined on the applicable Purchase
Order.
1.10 "License(s)" means the license metric (e.g type and
quantity) identified in the Proofpoint sales quote and/or in the
applicable Product Exhibit (which in turn may be referenced in
the Purchase Order) Customer needs a License in order to
legally use a Proofpoint Product.
1.11 "Personal Data" means data about an identifiable
individual that is protected by privacy laws where the individual
resides. Examples of personal data include name, religion,
gender, financial information, national identifier numbers, health
Proofpoint General Terms and Conditions (ver 20180521)
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information, email addresses , IP addresses, online identifiers
and location data.
1.12 "Product Exhibit(s)" means the exhibit to these
General Terms containing additional terms specific to the
Proofpoint Product(s) licensed to Customer
1.13 "Professional Services" means installation,
implementation, data migration or other consulting services
provided by Proofpoint to Customer
1.14 "Proofpoint Product(s)" means the Appliance, Service
or Software licensed and/or purchased by Customer under a
Purchase Order.
1.15 "Purchase Order(s)" means an ordering document for
a Proofpoint Product issued by Customer or Reseller that
contains at least the following information: product name, license
quantity, subscription term, price, and billing contact.
1.16 "Reseller" means a third -party authorized by Proofpoint
to resell Proofpoint Products directly to Customer
1.17 "Service" means any Proofpoint Product licensed on a
hosted basis as software as a service.
1.18 "Software" means any Proofpoint binary software
programs licensed by Proofpoint to Customer, together with all
the Software Updates.
1.19 "Software Update(s)" means each Software update and
enhancement that Proofpoint generally makes available at no
additional charge to its customers who are current in payment of
applicable Subscription Fees, or otherwise provides to Customer
under this Agreement.
1.20 "SOW" means each statement of work, engagement
letter or other writing signed by Proofpoint and Customer that
describes the Professional Services provided by Proofpoint.
Each SOW shall reference this Agreement and will be subject to
the terms and conditions hereof. Additionally, a Proofpoint
service brief identified in a Purchase Order is also considered an
SOW but does not require a separate signature.
1.21 "Subscription Fees" mean the fees paid by Customer
for the right to use (and receive applicable Updates to) the
applicable subscription -based Proofpoint Products for the Initial
Term or Extension Term, as applicable
1.22 "Taxes" means any direct or indirect local, state, federal
or foreign taxes, levies, duties or similar governmental
assessments of any nature, including value-added , sales, use or
withholding taxes.
"Term" means the Initial Term and any Extension
Term applicable to each Purchase Order
1.24 "Threat Analytics" means information collected,
generated and/or analyzed by the Proofpoint Products such as
log files, statistics, aggregated data and derivatives thereof
1.25 "User" means Customer's and its Affiliates' employees,
agents , contractors, consultants or other individuals licensed to
use the Proofpoint Product
1.26 "Work Product" means all work product developed or
created by Proofpoint during the course of providing support or
Professional Services to Customer. Notwithstanding anything
herein to the contrary, Work Product shall not include any
Customer Confidential Information, Customer Data, or Personal
Data.
2. GENERAL LICENSE TERMS
2.1 Subject to the terms of these General Terms and each
applicable Product Exhibit , Proofpoint grants to Customer and
its Affiliates a worldwide , royalty- free, non-exclusive, time -
limited, non -transferable (except to a successor in interest as
permitted hereunder), limited license to access and/or use (as
applicable) the Proofpoint Products during the Term in the
quantities specified in the applicable Purchase Order, and solely
for Customer's own internal business purposes. Customer may
authorize subcontractors to access and/or use the Proofpoint
Products, subject to the number of Licenses authorized by the
Ag1 eement, provided Customer is jointly and severally liable for
all acts and omissions of the subcontractors. Customer may use
the Documentation in connection with the License granted
hereunder.
2.2 Customer specifically agrees to limit the use of the
Proofpoint Products to those parameters set forth in the
applicable Purchase Order and Product Exhibit. Without limiting
the foregoing, Customer specifically agrees agt to: (i) resell,
sublicense, lease, time-share or otherwise make a Proofpoint
Product (including the Documentation) available to any third
party (except subcontractors); (ii) attempt to gain unauthorized
access to, or disrupt the integrity or performance of, a Proofpoint
Product or the data contained therein (including but not limited
to hacking or penetration testing Proofpoint's systems); (iii)
modify, copy or create derivative works based on a Proofpoint
Product; (iv) decompile, disassemble, reverse engineer or
otherwise attempt to derive source code from a Proofpoint
Product, in whole or in part; or (v) access a Proofpoint Product
for the purpose of building acompetitive product or service or
copying its features or user interface.
2.3 In addition , Customer agrees LW to use a Proofpoint
Product, or permit it to be used, for purposes of: (i) product
evaluation, benchmarking or other comparative analysis
intended for publication outside the Customer organization
without Proofpoint'spriorwritten consent; (ii) infringement on the
intellectual property rights of any third party or any rights of
publicity or privacy; (iii) violation of any law, statute, ordinance, or
regulation (including , but not limited to, the laws and
regulations governing export/import control, unfair competition,
anti -discrimination, and/or false advertising); (iv) propagation of
any virus, worms, Trojan horses, or other programming routine
intended to damage any system or data; and/or (v) filing
copyright or patent applications that include the Software and/or
Documentation or any portion thereof .
3. CONFIDENTIALITY
3.1 As used herein, "Confidential Information" means all
confidential and proprietary information of a party ("Disclosing
Party") disclosed to the other party ("Receiving Party"), whether
orally or in writing, that is designated as "confidential" or the like,
or that reasonably should be understood to be confidential given
the nature of the information and the circumstances of disclosure,
including the terms and conditions of this Agreement (including
pricing and other terms reflected in a Purchase Order), the
Proofpoint Products business and marketing plans, technology
and technical information , product designs, and business
processes.
3.2 "Confidential Information" shall not include information
that (i) is or becomes a matter of public knowledge through no act
or omission of the Receiving Party; (ii) was in the Receiving
Party's lawful possession prior to the disclosure without
restriction on disclosure; (iii) is lawfully disclosed to the Receiving
Party by a third party that lawfully and rightfully possesses such
information without restriction on disclosure;
(iv) the Receiving Party can document resulted from its own
research and development, independent of receipt of the
disclosure from the Disclosing Party; or (v) is disclosed with the
prior written approval of the Disclosing Party
3.3 Receiving Party shall not (i) disclose any Confidential
Information of the Disclosing Party to any third party, except as
otherwise expressly permitted herein or required by the Colorado
Open Records Act (CORA), C.R.S.§24-72-201 et. seq., or (ii) use
any Confidential Information of Disclosing Party for any purpose
outside the scope of this Agreement or in any manner that would
constitute a violation of any laws or regulations, including without
limitation the export control laws of the United States , except with
Disclosing Party's prior written consent. The Receiving Party
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shall not make Confidential Information available to any of its
employees or consultants except those that have agreed to
obligations of confidentiality at least as restrictive as those set
forth herein and have a "need to know" such Confidential
Information . The Receiving Party agrees to hold the Disclosing
Party's Confidential Information in confidence and to take all
precautions to protect such Confidential Information that the
Receiving Party employs with respect to its own Confidential
Information of a like nature, but in no case shall the Receiving
Party employ less than reasonable precautions. Receiving Party
shall promptly notify Disclosing Party if it becomes aware of any
actual or reasonably suspected breach of confidentiality of
Disclosing Party's Confidential Information This Agreement will
not be construed to prohibit disclosure of Confidential Information
to the extent that such disclosure is required to by law or valid
order of a court or other governmental authority; provided,
however, to the extent permitted by law, the responding party
shall give prompt written notice to the other party to enable the
other party to seek a protective order or otherwise prevent or
restrict such disclosure and, if disclosed, the scope of such
disclosure is limited to the extent possible
3.4 The Receiving Party will return all copies of the
Disclosing Party's Confidential Information upon the earlier of (i)
the Disclosing Party's request, or (ii) the termination or expiration
of this Agreement. Instead of returning such Confidential
Information, the Receiving Party may destroy all copies of such
Confidential Information in its possession; provided, however, the
Receiving Party may retain a copy of any Confidential Information
disclosed to it solely for archival purposes, provided that such
copy is retained in secure storage and held in the strictest
confidence for so long as the Confidential Information remains in
the possession of the Receiving Party
3.5 The parties acknowledge and agree that the
confidentiality obligations set forth in this Agreement are
reasonable and necessary for the protection of the parties'
business interests, that irreparable injury may result if such
obligations are breached, and that, in the event of any actual or
potential breach of Section 3, the non -breaching party may have
no adequate remedy at law and shall be entitled to seek injunctive
and/or other equitable relief as may be deemed proper by a court
of competent jurisdiction
4. PROTECTION OF PERSONAL DATA
Proofpoint will maintain administrative, physical, and technical
safeguards for protection of the security and confidentiality of
Personal Data, including, but will not be limited to, measures for
preventing unauthorized access, use, modification or disclosure
of Personal Data. Proofpoint's current data security terms are
described on Proofpoint's website at
tdo://www.oroofooint.comnicense.
5. OWNERSHIP
5.1 Customer retains all title, intellectual property and other
ownership rights in all Customer Confidential Information,
Customer Data and all data, text, files, output, programs,
information, or other information and material that Customer
provides, develops, makes available, or uses in conjunction with
the Proofpoint Products. Proofpoint retains all title, intellectual
property and other ownership rights throughout the world in and
to the Proofpoint Products, Documentation, any Service offering
and the Work Product. Proofpoint hereby grants to Customer a
non-exclusive, non -transferable, fully paid up, license to use the
Work Product in connection with the Proofpoint Product licensed
under this Agreement and solely for Customer's internal business
purposes. Professional Services (and any resulting Work Product)
are specific to the Proofpoint Products and are
not provided on a "work made for hire" basis.
5.2 There are no implied rights and all rights not expressly
granted herein are reserved. No license, right or interest in any
Proofpoint trademark, copyright, patent, trade name or service
mark is granted hereunder Customer shall not remove from any
full or partial copies made by Customer of the Software, Software
Updates and Documentation any copyright or other proprietary
notice contained in or on the original, as delivered to Customer.
5.3 Each party acknowledges that the Proofpoint Products
contain valuable trade secrets and proprietary information of
Proofpoint, that in the event of any actual or threatened breach
of the scope of any of the licenses granted hereunder, such
breach shall constitute immediate, irreparable harm to Proofpoint
for which monetary damages would be an inadequate remedy,
and that injunctive relief is an appropriate remedy for such breach
in addition to whatever remedies Proofpoint might have at law or
under this Agreement.
6. FEES, PAYMENT AND REPORTING
6.1 au. Fees for the Proofpoint Products will be the
Subscription Fees and other fees set forth in the Purchase
Orders (collectively, the "Fees"). The Fees stated in each
Purchase Order shall be effective during the Initial Term specified
in that Purchase Order; the Subscription Fees and other fees for
each Extension Term shall be defined in the applicable Purchase
Order or, in the absence of any such terms regarding Fees for
Extension Terms, by mutual agreement of the parties.
6.2 lam,. Customer will be liable for payment of all Taxes
that are levied upon and related to the performance of
obligations or exercise of rights under this Agreement.
Proofpoint may be required to collect and remit Taxes from
Customer, unless Customer provides Proofpoint with a valid tax
exemption certificate. The amounts received by Proofpoint, after
the provision for any Tax or withholding required by any country,
will be equal to the amounts specified on the Purchase Order
In no event will either party be responsible for any taxes levied
against the other party's net income
6.3 payment Unless otherwise agreed between Customer
and Reseller, all Fees due under a Purchase Order shall be due
and payable within thirty (30) days of receipt of invoice. Except
as otherwise expressly permitted herein, all Fees owed pursuant
to a Purchase Order are non -cancellable and non-refundable for
the Term. Any payment not received from Customer by the due
date may accrue (except for amounts then under reasonable and
good faith dispute) interest at the rate of one and one-half percent
(1.5%) of the outstanding balance per month, or the maximum
rate permitted by law, whichever is lower, from the date such
payment was due until the date paid. Proofpoint may decline to
make any shipments of Proofpoint Products or provide Services
if, in Proofpoint's reasonable opinion, circumstances exist which
raise doubt as to Customer's ability or willingness to pay as
provided herein. Failure to make timely payment may result in
immediate termination of access to the Proofpoint Products.
Upon default by Customer, Proofpoint will have all remedies
available at law or in equity No refunds will be made except as
expressly provided for under warranties and intellectual property
indemnity for the applicable Proofpoint Product.
6.4 pisouted Invoices. Customer shall have the right to
withhold payment of any invoiced amounts that are disputed in
good faith until the parties reach agreement with respect to such
disputed amounts, and such withholding of disputed amounts
shall not be deemed a breach of this Agreement nor shall any
interest be paid thereon. In such case, Customer shall promptly
(and in no event more than ten (10) business days from receipt
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of invoice) provide written notice to Proofpoint of any such
dispute prior to withholding such payment, specifying in
reasonable detail the nature of the dispute and the amount
withheld, and shall pay all undisputed amounts set forth on such
invoice in accordance with this Section. The parties will negotiate
in good faith to attempt to resolve such disputes within thirty (30)
days of submission of such dispute by Customer
6.5 License True -Up. Customer shall monitor and report
its actual usage of the subscription -based Proofpoint Products
based on the applicable Licenses and inform Proofpoint by
email at accountsreceivable<a?oroofooint.com of the then current
actual count ("License Count") upon the occurrence of the
following events: (i) on or before any increase in the License
Count equal or greater than ten percent (10%) of the then
current licensed License Count and (ii) on the thirtieth (30th) day
preceding each anniversary of the Effective Date. Proofpoint
may also itself at any time produce an actual License Count for
verification by Customer. If such number exceeds the License
Count for which Customer has paid Subscription Fees ("Base
License Count") by more than five percent (5%), then Customer
shall pay Proofpoint for each License beyond the Base License
Count from the time such License was activated through the
remainder of the Initial Term or Extension Term, as applicable
If such number exceeds the Base License Count by five percent
(5%) or less, then Customer shall pay Proofpoint for each
License beyond the Base License Count from the reporting date
of the count through the remainder of the Initial Term or
Extension Term, as applicable.
7. SUPPORT AND PROFESSIONAL SERVICES
7.1 Proofpoint shall provide support provided Customer is
current in payment of the applicable Fees and any additional fees
for platinum or premium support, if applicable Proofpoint's
current support terms are described on Proofpoint's website at
htto://www.oroofooin t.com/license.
7.2 Proofpoint shall provide the Professional Services, if
any, specified in one or more SOWs All Professional Services
shall be billed as stated in the applicable SOW and Customer
agrees that, if Customer has not used the Professional Services
within one (1) year of paying for such Professional Services ,
then Proofpoint has no further obligations and Customer shall
not be entitled to a refund except as set forth expressly in the
applicable SOW
7.3 Proofpoint warrants it will provide Professional Services
in a professional and workmanlike manner consistent with good
industry standards and practices. As Customer's sole and
exclusive remedy and Proofpoint 's entire liability for any breach
of the foregoing warranty, Proofpoint will use reasonable efforts
to re -perform the Professional Services or, if Proofpoint is unable
to do so, terminate the applicable SOW and refund that portion of
any Fees paid to Proofpoint or Reseller that correspond to the
allegedly defective Professional Services
8. TERMINATION AND EXPIRATION
8.1 Either party may terminate the General Terms or
Product Exhibit or any Purchase Order (i) immediately upon
written notice if the other party commits a non -remediable
material breach; or (ii) if the other party fails to cure any
remediable material breach within thirty (30) days of being of
notified in writing of such breach, unless such breach is for non-
payment and then within five (5) days of such notice
8.2 Either party may terminate the General Terms and each
Product Exhibit immediately by written notice if no Purchase
Order is in effect
8.3 On termination or expiration of the General Terms, all
Software licenses and Service access granted under this
Agreement shall automatically terminate with immediate effect
8.4 Unless otherwise set forth in the applicable Product
Exhibit or Purchase Order, the Initial Term applicable to each
Purchase Order (including follow-on orders) commences on the
later of: (i) the date Proofpoint ships a production Appliance to
Customer, (ii) the date Proofpoint processes the applicable
Purchase Order for a Proofpoint Product evaluated by the
Customer, or (iii) for all other Proofpoint Product orders, the date
Proofpoint sends to Customer an email indicating that the
Proofpoint Products are available for use (to the extent each of
the foregoing applies to Customer's engagement) Upon
expiration of the Initial Term under each Purchase Order the
subscription term applicable to such Purchase Order shall
automatically renew for Extension Terms unless otherwise
agreed by the parties or either party gives the other notice of non -
renewal at least ninety (90) days prior to the end of the relevant
subscription term.
8.5 In the event of the termination or expiration of this
Agleement, the provisions of this Agreement which by their
nature extend beyond the expiration or termination of this
Agreement shall survive, including but not limited to Sections 2.2-
2 3 ("License Restrictions"); 3 ("Confidentiality"); 5 ("Ownership");
6 ("Fees , Payment and Reporting"); 8 ("Termination and
Expiration"); 11 ("Limitation of Liability"); and 12 ("General"); and
any accrued rights to payment shall remain in effect beyond such
termination or expiration until fulfilled.
9. INTELLECTUAL PROPERTY INDEMNITY
9.1 Indemnity. Subject to Section 9.3 below, Proofpoint
agrees to defend and indemnify Customer from and against any
third -party claim filed against Customer in the United States
alleging that the Proofpoint Product(s), as sold and delivered to
Customer pursuant to this Agreement (the "Indemnified
Products"), directly infringe the valid intellectual property rights of
a third party (a "Claim "). Proofpoint agrees to pay any amounts
finally awarded by a court of law in respect of such Claim or
pursuant to its signed settlement. Proofpoint may, at its sole
election and expense (i) procure sufficient rights to allow
Customer continued use and exploitation of the Indemnified
Products under the terms of this Agreement ; (ii) replace or
modify the Indemnified Products to avoid the alleged
infringement; or (iii) if the foregoing options are not reasonably
practicable , terminate Customer's rights to use the Indemnified
Products and refund all amounts paid by Customer to Proofpoint
attributable to Customers' future usage or access to the
Indemnified Products.
9.2 jaxclusiong. Proofpoint shall have no obligation or any
liability to Customer for any Claim arising out of or related to: (i)
modification or adaptation to the Indemnified Products; (ii) the
use of the Indemnified Products in combination with any other
product, service or device, if the Claim would have been avoided
by the use of the Indemnified Products without such other
product, service or device; (iii) compliance with Customer's
specifications, instructions, functions, features or requirements, or
any customization of an Indemnified Product made for or on
behalf of Customer; (iv) use or exploitation of the Indemnified
Products other than as set forth in this Agreement or applicable
Proofpoint Documentation; or (v) failure to implement any update,
modification, or replacement to Indemnified Products as provided
by Proofpoint.
9.3 Emma Proofpoint's obligations under this Section 9
are conditioned upon the following : (i) Customer first providing
written notice of the Claim to Proofpoint within thirty (30) days
after Customer becomes aware of or reasonably should have
been aware of the Claim (provided, however, the failure to provide
such notice will only relieve Proofpoint of its indemnity obligations
hereunder to the extent Proofpoint is prejudiced thereby ); (ii)
Customer tendering sole and exclusive control of
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the Claim to Proofpoint at the time Customer provides written
notice of such Claim to Proofpoint, and (iii) Customer providing
reasonable assistance, cooperation and required information
with respect to defense and/or settlement of the Claim, including
Customer providing Proofpoint with access to documents and
personnel at Proofpoint's request and expense Customer may at
its sole expense participate in the Claim, except that Proofpoint
will retain sole control of the defense and/or settlement.
Proofpoint shall not agree to any settlement of a Claim that
includes an injunction against Customer or admits Customer
liability without Customer's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed.
9.4 The foregoing is the sole and exclusive remedy of
Customer and the entire liability of Proofpoint with respect to any
Claim
10. WARRANTIES, REMEDIES AND DISCLAIMERS
10.1 Each party represents and warrants that (i) it has the
legal power to enter into and perform under this Agreement; and
(ii) it shall comply with all applicable laws in its performance
hereunder
10.2 Warranties specific to each Proofpoint Product shall be
set forth in an applicable Product Exhibit, executed by both
parties.
10.3 EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH ABOVE AND IN EACH PRODUCT EXHIBIT,
PROOFPOINT AND PROOFPOINT LICENSORS DISCLAIM
ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY
WARRANTIES OF REGULATORY COMPLIANCE,
PERFORMANCE, ACCURACY, RELIABILITY, AND
NONINFRINGEMENT THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW
LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING
LIMITATIONS MAY NOT APPLY TO CUSTOMER.
11. LIMITATION OF LIABILITY
11.1 EXCEPT FOR (i) THE PARTIES' INDEMNIFICATION
OBLIGATIONS; (ii) DAMAGES RESULTING FROM EITHER
PARTY'S GROSS NEGLIGENCE, FRAUD OR WILLFUL
MISCONDUCT; (iii) DAMAGES RESULTING FROM EITHER
PARTY'S MATERIAL BREACH OF SECTION 3
(CONFIDENTIALITY); (iv) CUSTOMER'S BREACH OF
SECTION 2 ("GENERAL LICENSE TERMS"), OR (v)
CUSTOMER'S PAYMENT OBLIGATIONS, EACH PARTY'S
AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN
NO EVENT EXCEED THE ANNUALIZED SUBSCRIPTION
FEES PAID FOR THE APPLICABLE PROOFPOINT PRODUCT.
11.2 EXCEPT FOR (i) DAMAGES RESULTING FROM
EITHER PARTY'S MATERIAL BREACH OF SECTION 3
(CONFIDENTIALITY) OR (ii) CUSTOMER'S BREACH OF
SECTION 2 ("GENERAL LICENSE TERMS"), IN NO EVENT
SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS
HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED
TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA,
BUSINESS INTERRUPTION, OR OTHER COMMERCIAL
DAMAGES OR LOSSES, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED
AND WHETHER IN CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
11.3 THE LIMITATION OF LIABILITY AND EXCLUSION OF
CERTAIN DAMAGES STATED HEREIN WILL APPLY
REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE
OF ANY REMEDY. BOTH PARTIES HEREUNDER
SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS
OF LIABILITY ARE REFLECTED IN THE PRICING.
12. GENERAL
12.1 Government End -User Notice. This Section shall apply
only if Customer is a federal government entity. The Proofpoint
Products are deemed commercially available hosted services
and commercial computer software as defined in FAR 12.212
(Software) and/or commercially available technical data as
defined in FAR 12.211 (Technical Data), and are subject to
Proofpoint's commercial licensing/use terms, as required by and
FAR 52.227-19 (Commercial Computer Licensed Software -
Restricted Rights) and, for Department of Defense transactions,
DFAR 252.227-7015 (Technical Data - Commercial Items) and
DFAR 227 7202-3 (Rights in Commercial Computer Software or
Computer Software Documentation) If greater rights are
needed, a mutually acceptable written addendum specifically
conveying such rights must be included in this Agreement.
12.2 Publicity. Neither party may issue press releases or
otherwise publicize the parties' relationship without the other
party's prior written consent, which shall not be unreasonably
withheld
12.3 Independent Contractors: Relationship with
Parties. The parties are independent contractors, and no
partnership, franchise, joint venture, agency, fiduciary or
employment relationship between the parties is created hereby.
There are no third -party beneficiaries to this Agreement.
12.4 Notices. All notices shall be in writing to each party's
address on the signature page of this Agreement (or as updated
by a party in writing to the other) and effective upon receipt
12.5 Entire Aareement: Integration. This Agreement
constitutes the entire agreement of the parties and supersedes
all prior or contemporaneous agreements, proposals or
representations, written or oral, concerning its subject matter. No
amendment or waiver of any provision of this Agreement shall
be effective unless in writing and signed by the party against
whom the amendment or waiver is to be asserted No
amendment to the terms of this Agreement shall be valid unless
and until approved by the Board of County Commissioners.
Notwithstanding any language to the contrary therein, any
Purchase Order issued by Customer or Reseller shall be
deemed a convenient order and payment device only and no
terms (other than product name, license quantity, price,
subscription term, and billing contact) stated in any Purchase
Order shall be incorporated into this Agreement, and all such
other terms shall be void and of no effect.
12.6 Waiver. No failure or delay in exercising any right
hereunder shall constitute a waiver of such right. Except as
otherwise provided, remedies provided herein are in addition to,
and not exclusive of, any other remedies of a party at law or in
equity If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall
be modified by the court and interpreted so as best to accomplish
the objectives of the original provision to the fullest extent
permitted by law, and the remaining provisions shall remain in
effect.
12.7 Force Majeure. Neither party shall be liable to the other
for any delay or failure to perform hereunder (excluding payment
obligations) due to circumstances beyond such party's
reasonable control, including acts of God, acts of government,
flood, fire, earthquakes, civil unrest, acts of terror, strikes or
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other labor problems (excluding those involving such party's
employees), service disruptions involving hardware, software or
power systems not within such party's possession or reasonable
control, and denial of service attacks.
12.8 Assignment Neither party may assign any of its rights
or obligations hereunder, whether by operation of law or
otherwise, without the prior written consent of the other (not to
be unreasonably withheld) Notwithstanding the foregoing,
either party may assign this Agreement in its entirety (including
all Product Exhibits hereunder), without consent of the other
party, to its successor in interest in connection with a merger ,
reorganization, or sale of all or substantially all assets or equity
not involving a direct competitor of the other party
12.9 Export Restriction Each party agrees to comply with all
applicable regulations of the United States Department of
Commerce and with the United States Export Administration Act,
as amended from time to time, and with all applicable laws and
regulations of other jurisdictions with respect to the importation
and use of the Proofpoint Products and Proofpoint Confidential
Information and any media, to assure that the Proofpoint
Products, Proofpoint Confidential Information and media are not
exported, imported or used in violation of law or applicable
regulation
12.10 Applicable Law. This Agreement will
be governed by the laws of the State of Colorado
and the United States of America, without regard to
conflict of law principles. The United Nations
Convention on Contracts for the International Sale of
Goods shall not apply
12.11 Counterparts. These General Terms and each Product
Exhibit may be executed by facsimile and in counterparts.
12.12 Headings: Language. All headings used herein are for
convenience of reference only and will not in any way affect the
interpretation hereof The English language version of this
Agreement controls. It is the express wish of both parties that
this Agreement. and any associated documentation. be written
and signed in Enalish.
12.13 Fund Availability. Financial obligations of the County
payable after the current fiscal year are contingent upon funds
for that purpose being appropriated. budgeted and otherwise
made available. Execution of this Agreement by County does
not create an obligation on the part of County to expend funds
not otherwise appropriated in each succeeding year.
12.14 Governmental Immunity. No term or condition of this
contract shall be construed or interpreted as a waiver. express
or implied. of any of the immunitiesrights. benefitsprotections
or other provisions. of the Colorado Governmental Immunity Act
§§24-10-101 et seg.. as applicable now or hereafter amended.
12.15 board of County Commissioners of Weld County
Approval. This Aareement shall not be valid. nor any
amendment thereto. until it has been approved by the Board of
County Commissioners of Weld County. Colorado or its
designee.
12.16 Attorneys Fees/Legal Costs. In the event of a dispute
between the Parties concerning this Agreement. the parties
agree that each party shall be responsible for the payment of
attorney fees and/or legal costs incurred by or on its own behalf.
12.17 Binding Arbitration Prohibited: Weld County does not
garee to binding arbitration by any extra -judicial body or person.
Any provision to the contrary in this Agreement or incorporated
rerein by reference shall be null and void.
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proof poi nt_
PROOFPOINT SECURITY PRODUCTS EXHIBIT
This Security Products Exhibit ("Exhibit") is an exhibit to the General Terms and Conditions ("General Terms"). The General
Terms are an integral part of this Exhibit and are incorporated by reference, if any of the following Proofpoint Products are
licensed by Customer: Cloud Account Defense (CAD), Cloudmark Authority, Cloudmark Safe Messaging Cloud (SMC),
Cloudmark Security Platform, and Cloudmark Spam Reporting Service (SRS), Continuity, Data Discover, Domain Discover,
Email Data Loss Prevention (DLP), Email Encryption, Email Brand Defense, Email Fraud Defense, Email Protection, Emerging
Threats Intelligence Query, Emerging Threats Pro Ruleset, Emerging Threats Reputation, Internal Mail Defense (IMD), Mail
Routing Agent (MRA), PhishAlarm, PhishAlarm Analyzer, Cloud App Security Broker (CASB), Secure Share, Targeted Attack
Protection (TAP), TAP Isolation — Personal Browsing Defense, TAP Isolation — Personal Webmail Defense, Threat Response,
Threat Response Auto Pull, ThreatSim and Wombat Security Training Modules, and any future names or bundles by which
Proofpoint identifies and makes available these Products. Capitalized terms used in this Exhibit without separate definition
shall have the meaning specified in the General Terms.
IN WITNESS WHEREOF, Proofpoint and Customer represent and warrant to the other that the person entering into this Exhibit
is authorized to sign this Agreement on behalf of their respective party.
CUSTOMER:
WELD COUNTY BOARD OF COUNTY COMMISSIONERS
PROOFPOINT, INC.:
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Signature:
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Individual Signing:
[print name] STEVE MORENO
Individual Signing:
[print name] Paul Auvi 1
Title: CHAIR, BOARD OF COUNTY COMMISSIONERS
Title: CFO
Signing Date: OCT 1 5 2018
Signing Date: 9/27/2018
1. TERMS OF USE. Proofpoint shall make the Proofpoint Product available to Customer and its Affiliates in accordance
with the General Terms, Purchase Order, this Exhibit and the Documentation. Customer's right to use the Proofpoint Product
is limited to the maximum number of Licenses for each module, the deployment type (Appliance, Software, or Service (SaaS)),
and any other limitations specified in this Exhibit, including Schedule 1; and each Purchase Order and/or Quote.
2. WARRANTIES.
2.1 Appliance Warranty. Proofpoint warrants to Customer that the physical Appliance will be free from defects in materials
and workmanship, under normal intended use, for the period and under the terms described at
httos://www.proofpoint.com/us/suoportlemail-appliance-warrantv-eol ("Appliance Warranty"). Customer will provide prompt
written notice of any non -conformity during the Appliance Warranty period. Provided that Proofpoint receives such timely
notification, Customer's sole and exclusive remedy and Proofpoint's entire liability for any breach of the foregoing warranty is
to ship a replacement Appliance. If the Appliance is replaced, such replacement Appliance is warranted for the unexpired
portion of the original Appliance Warranty. If the Appliance is damaged due to Customer's negligence or willful misconduct,
Customer will be responsible for all shipping and repair costs. Otherwise, Proofpoint will be responsible for all shipping costs
related to shipping the replacement Appliance to Customer. Any Appliance that is replaced becomes the property of Proofpoint.
Proofpoint will not be responsible for Customer's or any third party's software, firmware, information, or data contained in or
stored on any Appliance returned to Proofpoint, whether under warranty or not. This Appliance Warranty does not apply to (a)
an Appliance that is improperly installed or used in a manner other than as authorized under the Agreement, to the extent such
improper installation or use cause the breach of warranty; (b) an Appliance that has been modified or repaired by Customer
or any party other than Proofpoint, to the extent such modifications cause the breach of warranty; (c) an Appliance that is
damaged due to Customer's mishandling, abuse, negligence, or improper storage, servicing or operation; or (d) an Appliance that
is damaged due to power failures, surges, lightning strikes, fire, flood, accident, and actions of third parties or other events outside
Proofpoint's reasonable control.
2.2 SaaS Warranty. Proofpoint warrants that the Services will substantially conform in all material respects in accordance
with the Services Documentation ("SaaS Warranty"). Customer will provide prompt written notice of any non -conformity.
Proofpoint may modify the Services Documentation in its sole discretion, provided the functionality of the Services will not be
materially decreased during the Term. As Customer's sole and exclusive remedy and Proofpoint's entire liability for any breach
of the SaaS Warranty, Proofpoint will (a) use reasonable efforts to fix, provide a work around, or otherwise repair or replace
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the Service or, if Proofpoint is unable to do so, (b) terminate this Exhibit and return the Subscription Fees paid to Proofpoint or
Reseller for such allegedly defective Services for the period commencing from Customer's notice of nonconformity through
the remainder of the Initial Term or Extension Term, as applicable.
2.3 Software Warranty. Proofpoint warrants that for a period of three (3) months following delivery of the Software to
Customer it will function in substantial conformance in all material respects with the Documentation ("Software Warranty").
Proofpoint may modify the Documentation in its sole discretion, provided the functionality of the Software will not be materially
decreased during the Term. Customer will provide prompt written notice of any non -conformity. The Software Warranty does
not apply to: (a) Software that has been modified by any party other than Proofpoint; or (b) Software that has been improperly
installed or used in a manner other than as authorized under the Agreement to the extent such modification(s) or improper
installation cause the Software to be nonconforming. As Customer's sole and exclusive remedy and Proofpoint's entire liability
for any breach of the foregoing warranty, Proofpoint will (x) use reasonable efforts to fix, provide a work around, or otherwise
repair or replace the Software or, if Proofpoint is unable to do so, (y) terminate this Exhibit and return the Subscription Fees
paid to Proofpoint or Reseller for such allegedly defective Software for the period commencing from Customer's notice of
nonconformity through the remainder of the Initial Term or Extension Term, as applicable. If the non -conforming Software was
included with an Appliance and if, in the parties' reasonable judgment, the functionality or utility of the physical Appliance is
materially impacted as a result of Proofpoint's termination of Customer's right to use the non -conforming Software under this
Section 2.3, Customer may return the physical Appliance in accordance with the return provisions specified in Section 2.1 and
Proofpoint will refund the fees paid to Proofpoint for such physical Appliance. If Customer has purchased the physical
Appliance through a Reseller, then Reseller shall refund the foregoing fees to Customer.
2.4 Disclaimer. PROOFPOINT DOES NOT WARRANT THE ACCURACY OF THE INTENDED EMAIL BLOCKING OF
ANY MAIL MESSAGE, THAT THE PROOFPOINT PRODUCTS (SOFTWARE, APPLIANCE, OR SERVICE) WILL MEET
CUSTOMER'S REQUIREMENTS OR THAT EMAIL WILL NOT BE LOST OR THAT THE PROOFPOINT PRODUCTS WILL
NOT GIVE FALSE POSITIVE OR FALSE NEGATIVE RESULTS OR THAT ALL SPAM AND VIRUSES WILL BE ELIMINATED
OR THAT LEGITIMATE MESSAGES WILL NOT BE OCCASIONALLY QUARANTINED AS SPAM. PROOFPOINT DOES
NOT WARRANT THE OPERATION OF THE PROOFPOINT PRODUCTS WILL BE UNINTERRUPTED OR ERROR -FREE
OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED.
3. APPLIANCE SHIPMENT, DELIVERY, TITLE, RISK OF LOSS. Proofpoint will ship the physical Appliance Ex Works
(Proofpoint's facility), as defined by Incoterms 2010. Unless specified in advance by Customer, Proofpoint will select the carrier
in its own discretion. Customer will be responsible for all freight, packing, duties, import fees and related taxes, insurance and
other shipping -related expenses from Proofpoint's location. Title to the physical Appliance (excluding any software or firmware
embedded in the Appliance) and risk of loss will pass to Customer upon Proofpoint's delivery of the physical Appliance to the
carrier. Any Software Updates shall be delivered via file transfer protocol unless physical shipment (e.g. compact disk) is
specifically requested by Customer.
4. SERVICE LEVEL AGREEMENT. Proofpoint provides a Service Level Agreement ("SLA") for some of the Proofpoint
Services. The SLA is posted on Proofpoint's website at http://www.proofpoint.com/license. In the event of a breach of the
foregoing warranty, as Customer's sole and exclusive remedy, Proofpoint will provide the remedy set forth in the respective
SLA.
5. PROOFPOINT'S LICENSE.
5.1 During the Term of the Agreement Customer hereby grants to Proofpoint and its service providers a worldwide, limited
term license to collect and process certain Customer Confidential Information, Customer Data and Personal Data for: (a) abuse
and threat awareness, detection and prevention, (b) compliance, and (c) security purposes; in accordance with the Agreement.
Proofpoint will not sell any Customer Confidential Information, Customer Data, or Personal Data to third parties for marketing
purposes.
5.2 Customer acknowledges and agrees that development of Threat Analytics from Proofpoint's ecosystem is critical to
the functionality of the Proofpoint Products. Customer hereby grants a worldwide license to Proofpoint to collect Threat
Analytics during the Term of the Agreement. Further, Customer hereby grants a worldwide license to Proofpoint to use Threat
Analytics to maintain, improve and enhance Proofpoint services; provided that if Customer provides written legal notice to
Proofpoint on or after expiration or termination of the applicable Proofpoint Services instructing Proofpoint to delete any
Personal Data included in Threat Analytics it will be deleted within 18 months of such notice. This Section 5.2 survives
termination and expiration of the Agreement.
SCHEDULE 1
PRODUCT SPECIFIC TERMS
Cloudmark Products. Cloudmark Products include Cloudmark Authority, Cloudmark Safe Messaging Cloud (SMC), and
Cloudmark Spam Reporting Service (SRS). Notwithstanding anything to the contrary in the General Terms and Conditions,
the parties hereby agree that Work Product resulting from Professional Services for Cloudmark Products includes Customer
configurations. Proofpoint grants to Customer a license to such Work Product (including Customer configurations) pursuant
to Section 5.1 of the General Terms and Conditions. Additionally, Customer acknowledges that use of the "Cloudmark Network
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Feedback System" involves sending unencrypted Customer e-mail and spam samples into this system. This process is optional
for the Customer and only occurs for an email message when a User chooses to click on the "This is Spam" button or the "This
is NOT spam" button for a given email message. Proofpoint analyses theses spam reports and unblock reports in order to
increase the accuracy of the Proofpoint Product.
Continuity. Continuity is licensed on a User basis. Customer acknowledges that Continuity is only to serve as a secondary,
emergency failover option in the event of failure of Customer's email service, and not to serve as a primary email archive
solution or a primary failover solution. Customer is required to have a current subscription for Proofpoint email protection to
use Continuity. Customer is responsible for: (i) all activities conducted under its User logins; and (ii) obtaining and maintaining
any Customer Equipment and any ancillary services needed to connect to, access or otherwise use Continuity and ensuring
that the Customer Equipment and any ancillary services are compatible with Continuity and comply with all configuration
requirements set forth in Continuity's Documentation; and (iii) supporting and resolving any password reset issues for
Continuity for Customer's Users. Customer is solely responsible for any damage or loss to a third party resulting from the
Customer's own use of the Proofpoint Product in violation of: (a) applicable law; or (b) the terms and conditions of the
Agreement.
Continuity Plus. Continuity Plus is licensed on a User basis Customer must: (i) enable the email journaling feature within
Customer's Microsoft Exchange Server, or Microsoft Office 365 service; and (ii) ensure that the Customer's network has proper
policies to allow journaling emails to be transmitted to the Proofpoint hostnames and IP addresses for Continuity Plus. This
feature for emergency storage of outbound and intra-domain email is only supported for select versions of Microsoft Exchange
Server and Microsoft Office 365. Customer is solely responsible for any damage or loss to a third party resulting from the
Customer's own use of the Proofpoint Product in violation of: (a) applicable law; or (b) the terms and conditions of the
Agreement.
Domain Discover. Customer is responsible for (i) all activities conducted under its User logins; (ii) obtaining and maintaining
any necessary equipment and configurations set forth in the Documentation; and (iii) complying with all applicable laws, rules
and regulations, and acquiring all necessary data subject consents. Customer is responsible for maintaining the user accounts
and the security of its user names and passwords at the user level and for promptly changing or deleting any user name or
password that Customer believes may have been compromised. Proofpoint reserves the right to institute password
requirements (such as the length of password or the required use of numbers, symbols etc.) and to refuse registration of, or
cancel passwords it deems inappropriate. The Proofpoint Products may allow Customer to interface with a variety of third party
software or services (e.g., Facebook, Twitter, Linkedln). No endorsement of any such service should be inferred as a result of
any integration with the Proofpoint Products and Proofpoint is not responsible for the data, operation or functionality of such
third -party services. While Proofpoint may, in its sole discretion, customize the Proofpoint Products to interoperate with various
third -party services: (a) Customer is responsible for complying with the terms and policies of each such third -party service
including, without limitation, any payment obligations related thereto; and (b) Proofpoint cannot guarantee that such third -party
services will continue to interoperate with the Service.
Email Protection. Email Protection is licensed on a User basis. When using Email Protection Customer is responsible for all
activities conducted under its user logins. Email Protection is for use with normal business messaging traffic only, and
Customer shall not use Email Protection for the machine generated message delivery of bulk or unsolicited emails or emails
sent from an account not assigned to an individual. Customer is responsible for maintaining the outbound email filtering Email
Protection configuration settings to block emails identified by Proofpoint as either containing a virus or having a spam score of
ninety-five (95) or higher. If Proofpoint has reason to believe that Customer has modified the outbound email configuration
setting, Proofpoint reserves the right to monitor and reset such settings. Customer is solely responsible for any damage or
loss to a third party resulting from the Customer's own use of the Proofpoint Product in violation of: (a) applicable law; or (b)
the terms and conditions of the Agreement. Each User must be assigned a separate account on Customer's email server for
sending or receiving messages or data within Customer's email system or network.
Mail Routing Agent. Customer is responsible for maintaining the outbound email filtering MRA configuration settings
established by Proofpoint to filter and block emails identified by Proofpoint as either containing a virus or having a spam score
of 95 or higher. If Proofpoint has reason to believe that Customer has modified the outbound email configuration setting,
Proofpoint reserves the right to monitor and reset such settings.
PhishAlarm & PhishAlarm Analyzer. PhishAlarm & PhishAlarm Analyzer do not filter, scan, analyze or determine if any
email received by any User of the PhishAlarm Software is a phishing attack. Other Proofpoint Products provide these functions.
"User" means Customer's and its Affiliates' employees, agents, contractors, consultants or other individuals licensed to use
the Proofpoint Product.
Targeted Attack Protection (TAPl. TAP is licensed on a User basis. Customer is solely responsible for any damage or loss
to a third party resulting from the Customer's own use of the Proofpoint Product in violation of: (a) applicable law; or (b) the
terms and conditions of the Agreement.
Threat Response. Threat Response is licensed on a User basis and interoperates with certain supported: (i) third -party data
sources ("Event Source"); and (ii) third -party security enforcement platforms (e.g. firewalls, and web proxy servers)
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("Enforcement Device"). As between Proofpoint and Customer, Proofpoint shall have no liability whatsoever with respect to
the accuracy, availability, or quality of Event Sources or Enforcement Devices. Customer may configure additional Event
Sources and Enforcement Devices as needed by Customer in connection to Customer's use of Threat Response. Customer
is solely responsible for any damage or loss to a third party resulting from the Customer's own use of the Proofpoint Product
in violation of: (a) applicable law; or (b) the terms and conditions of the Agreement.
Threat Response Auto Pull. Threat Response Auto Pull is licensed on a User basis and may only be integrated with either
Microsoft Exchange Server, Microsoft Office 365, Google Gmail or IBM Domino as an Enforcement Device and can only be
used with the following data Event Sources: Proofpoint TAP, FireEye EX, Proofpoint Smart Search results, Splunk (events for
email quarantine only) and JSON (events for email quarantine only). Upon written notice (via email) to Customer's Named
Support Contact from Proofpoint, Customer will send a copy of its specific TRAP system configuration to Proofpoint for review.
Customer is solely responsible for any damage or loss to a third party resulting from the Customer's own use of the Proofpoint
Product in violation of: (a) applicable law; or (b) the terms and conditions of the Agreement.
ThreatSim. Customer may only conduct simulated phishing emails to domains owned by the Customer as set forth in the
Purchase Order. Customer may include in the simulated phishing emails logos, customer names, e-mail addresses of Users
and any other identifying information ("Customer Information"). Customer represents and warrants that it has the right to
distribute, reproduce, publish, upload, use the Customer Information.
TAP Isolation — Personal Browsing Defense & Personal Webmail Defense. Personal Browsing Defense and Personal
Webmail Defense are both licensed on a User basis. Customer will not use either TAP Isolation product to monitor any User's
internet activities and will not allow Users to transmit through or post on either TAP Isolation product infringing, defamatory,
threatening or offensive material.
Wombat Security Training Modules. Wombat Security Training Modules enable Customer to send security awareness
training to Users to teach Users secure behavior. On -premise versions of the Training Modules can also be provided. Training
Modules are compatible with single SCO SCORM 1.2 and 2004 compliant Learning Management Systems, controlled by the
Customer.
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