HomeMy WebLinkAboutAgreement_General_09/12/2013 ` Se yvices ement
This Agreement is erttged' Fil o _ � , 2Q I3 � (the " Eftective Data ") by and between Mirnecast North
America,.lnc. of48O PleasantStrti t Vaaaatocan, MA 02472 {" Mimccast"}, and
' Village of Toqucsta
345'requesta Dr.,
Tequesta, FL 33469 -0273
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1. DEFINITIONS
— _ - —For-purposes-of-this t]gia� �," including" means i acludi n� without limitation, "days" refers to calendar days unless
otherwise specified, and "herein," "hereof;' "hereunder," "hereto" or outer aimifar expressions refer t Agreement All — - - - -- —
defined terms will have the meanings set forth in this Agreement.
"Agreement" means this Agreement, any Appendices to this Agreement, the Service Levels, Service Description, Technical
Support Description, (and If appropriate the Data Ingestion Service Guide); rill as amended by the parties from time to time.
"Commencement Date" monns the Effective Date unless otherwise specified in Appendix 1.
"Data" means the Customer data provided by or on behalf of Customer or Permitted Users to Mimccast in the course the
Services including all Customer data processed during the operation of the Services, all Personal Information and if
appropriate, Customer's Legacy Data following the conclusion of the Data ingestion Service.
"Data Ingestion Service" is the process of adding the Legacy Data of the Customer into the Service in accordance with the
Data Ingestion Service summary attached as Appendix 2, and the Data Ingestion Service Guide. The tees related to this
process ate identified as "Data Ingestion Service Fees" and detailed in Appendix 1. The detailed Data Ingestion Service
Guide will be provided to Customer' technical support contacts prior to the commencement of the Dula ingestion Service.
"Fees" means the ties payable by Customer pursuant to this Agreement, including Service Fees and any Technical Support
Fees, but excluding, where appropriate, Data Ingestion Service Fees.
"Initial , lean" means twelve months, or as otherwise specified in Appendix 1, starting on the Commencement bate.
"Intellectual Property Rights" means all intellectual property rights, including patents, trademarks, trade names, service
marks, copyrights, trade secrets, know -how, processes, technology, development tools, data, ideas, concepts, design rights,
domain names, moral rights, database rights, methodology, algorithms and inventions, and any other proprietary information
(whether registered, unregistered, pending or applied for).
"Legacy Data" means the Customer data provided to Mimccast for the Data Ingestion Service. At the successful conclusion
of the Data Ingestion Service, Legacy Data shall be. included in the definition of Data under the Agreement.
"Permitted Users" mantis the paid for users as specified in Appendix 1, defined as individual people possossing one or ]tore
entail addresses under the Customer's domain names and employed by or under the Customer's control.
"Personal Information" mcans non - public, personally identifiable information as defined or used in the applicable data
protection laws or regulations.
"Service Description" means the current specifications of the Services available to Customer, fi:nartcl on ilia Mimccast
website at 3+'A v ' ? sw{ )I1 csUlt!ti� ;E : r � .li2bc r: i., and included hereunder in accordance with Section t 1.6.
"Service Fees" in = , s the fees due from Customer to Mimccast for the Services.
"Service Lev els" means the current service levels corresponding to the Services, found on the Mimccast websitc at
wl"'yv,,airies t !S=0.;_,T:,*io.,(SLYSjs, and i Tic Iudod hereunder in accordance with Section 11.6.
"Services" means the SaaS- based, unified, enterprise email management service far archiving, discovery, continuity, security
and policy provided by Mirnecast pursuant to this Agreement by means of infrastructure including application Software,
networks, computing and storage. 'Cite Services subscribed to by Customer are specified in Appendix 1, as updated or
amended by mutual written agreement of the parties, and are provided by Mimccast in consideration for the Service Fees
U5 Services Agreement v1.12 Page of 10
paid and in accordance with this Agreement. This definition does not include Data Ingestion Services Fees which are
defined separately.
"Set -up and Connect" is the process of defining tro system user settings and policies fbr the Services. The fees related to
this process are ident:ifiecl as "Set -up and Connect. Fees" and detailed In Appendix 1.
"Technical Support Services Description" means the current specifications of Mimeeast's terbnical support services
available to Customer, found on the Mimecast website at hil9} L!ev`v4t �11iills 5t:t p'.tKri '�xtl �> 5= u?ts'1Ft- tlsland included
hereunder in accordance with Section 11.6.
"Technical Support Fees" means the fees due from Customer to Mimecest for telephone and online support.
"Usage Allowance" means the entail and/or byte count allowance of the Customer's Permitted Users as specified in
Appendix 1.
2, SERVIMS
2.1 Subject to the terms and conditions of this Agreement, Mimecast hereby agrees, during the Term,
a) to provide the Services to Permitted Users in accordance with the Agreement (including the Service Description,
Technical Support Description, Service Levels and Usage Allowance);
b) to permit the Permitted Users to access and use the Services;
G) if Customer has requested Data Ingestion Services they shall start at a mutually agreed time following the
Effective Date of this Agreement acrd be performed ht accordance with the Data Ingestion Service Guide, a summary of
which is attached hereto. Mimecast shalt work with Customer to ensure the successful ingestion of Customer's Legacy Data.
Customer will . provide Mimecest with Data Ingestion Service sign -off, or it comprehensive list of anomalies within fifteen
(15) days of notification of completion of the Data Ingestion Services by MimecasL If no notification of sign -off or list of
anomalies is received by Mimecest within this time then the Legacy data ingested will be deemed as unconditionally
- - -- -- -- - — accepted - fry C:astimer; - bL-made- avelablo -to -the- Permitte(i- Users -of- the Services and- he- constderedlttl2ata finder this
Agreement.
d) in the event of Customer and/or Mimecest identifying anomalies in the initial Data Ingestion Service, Mimecest
will ro-perform. the Data Ingestion Service in accordance with the Data Ingestion Service Guide.
e) to provide ongoing maintenance, upgrades and enhancements to the Services; and
I) to comply with all applicable laws and regulations.
2.2 Mimecest will provide the Services to Customer as set froth in this Agreement beginning on the Commencement
Date.
2.3 Mimecest will provide the Set -up and Connect as part o f the Services. Following the Set -up and Connect,
Customer will be responsible for checking the configuration and for the timely delivery of any Data required by Mimecest to
configure the Services and the networks and computer systems to enable Permitted Users to access the Services.
2,4 If at any time within thirty (30) days from the Commencement Date Customer wishes to terminate this Agreement,
for any reason Customer may give notice of termination, in accordance with Section 11.3 to Mimecest whereupon this
Agreement will terminate immediately. if any Fees have been paid in advance then they will be refunded. If notice of
termination is not received prior to 5:00 pm .EST on the thirtieth (30`) day following the Commencement Date, then the `
Services will be deemed to have been accepted for the initial Term. j f
3. PAYMENT TERMS
3.1 As of the Effective Date Customer will be invoiced and will pay the Fees (and if appropriate Data Ingestion
Service fees) specified in Appendix 1 to Mimecest in accordance with Section 32 below. Service fees for the Initial Tern
and any subsequent Renewal Terms wilt be paid by check monthly in advance, Any other charges mid expenses which fan
due under this Agreement, or are mutually agreed by the parties from time to time will be paid by Customer monthly In
arrears.
3.2 Fees are due net thirty (30) days from the invoice date. All payments under this Agreement will be in United
States dollars,
3.3 With the exception of disputed invoices under Section 3.5, if any amount due to Mimecast is not paid by the
applicable due date then Mirnecast may; (i) charge interest on any unpaid amount due at the rate of one and one -half percent
per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until
the date paid; and (it) at Mimecast's sole discretion, suspend the Services, upon fifteen (15) days prior notice, until such
amounts are paid in full.
3.4 Unless otherwise stated or agreed by the parties, tiro Fees and any other charges hereunder do not include any
local, state, federal., or foreign taxes, levies or duties of any nature. Customer is responsible for paying arty such taxes,
excluding taxes based on Mimecast's income.
3.5 Customer will notify Mimecest in writing within fifteen (15) days of receipt of an incorrect or invalid invoice,
giving their reasons. if only part of an invoice is disputed the Customer will pay the undisputed amount as detailed herein.
4. CUSTOMER'S RESPONSIBILITIES 1 `
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4.1 Subject to the terms and conditions of this Agreement, Customer hereby agrees, during the Term:
a) to use the Services for its own business purposes, and for processing the Data, and that it will not license,
sublicense, sell, resell, rent, lease, transfer, distribute, time share or otherwise commercially exploit or make die Services
available to any third party, as a part of a service bureau arrangement or otherwise, for any unauthorized purpose or in any
unauthorized manner;
b) to use all commercially reasonable efforts to prevent unauthorized access to, or use of the Services, and notify
Mimecast promptly of any such unauthorized use;
C) to comply with all applicable laws and regulations in using the Services, wherever such use occurs, and not use, or
require Mimecast to use, any Data obtained via the Services for any unlawful purpose;
d) to comply with Mimecast instructions and requirements set forth in this Agreement;
e) that it will not: (i) send, upload, or distribute any unlawful, libellous, defamatory, harassing, threatening, abusive,
fraudulent, infringing, obscene, or otherwise objectionable content; (ii) send junk mail, spam, chain letters, phishing or
unsolicited mass distribution of email; (iii) intentionally distribute viruses, malicious code, or any other items of a hannfitl,
destructive or deceptive nature; (iv) promote or encourage illegal activity; (v) copy, modify, create a derivative work of, or
reverse engineer any portion of the Services; (vi) engage in any activity that interferes with or disrupts the Services; or (vii)
remove any copyright, trademark or other proprietary rights notices contained in or on the Services;
f) that it will cause Permitted Users to comply with Customer's obligations under this Agreement and that it is solely
responsible for the acts or omissions of the Permitted Users; and
g) to refrain from use of the Services in a manner that would viQlate or harm the rights of any third part
4.2. Customer will implement and maintain reasonable and appropriate access controls to ensure that user accounts are
used only by the Permitted User to whom they are assigned and to manage and monitor Permitted Users, including
design ating one or m ore a dministra tors responsible for access control.
5, PROPRIETARY RIGHTS
5.1 Mimecast and its third party licensors (as appropriate) will retain all Intellectual Property Rights, in (i) the
Services; (ii) its systems and background technology used to provide the Services; and (iii) any data, information or
materials related to the Services or such systems and background technology (excluding the Data). Except as expressly set
forth herein, no Intellectual Property Rights are granted to Customer.
5.2 Data provided by Customer to Mimecast is the property of Customer, and Customer retains all Intellectual
Property Rights therein. Subject to the terns and conditions of this Agreement Customer grants Mimecast a license to use
the Data solely to the extent necessary for the performance of the Services and to keep copies of the Data during the Tenn
and the Retention Period as set forth in Section 10A.
5.3 Customer will notify Mimecast immediately if it becomes aware of any unauthorized access to or use of the
Services by any person and permits Mimecast to monitor the use of the Services (but not the Data content) by Customer to
confirm Cwtomer's compliance with this Agreement and to assess the quality of the Services,
5.4 If Customer has subscribed to the Data Ingestion Service, the procedures relating to the secure transfer of
Customer's Legacy Data to Mimecast and into the Mimecast Service are fully detailed in the Mimecast Data Ingestion
Service Guide, a summary of which is attached as Appendix 2. Once the Data Ingestion process has been completed and the
Legacy Data is considered ingested into the Customer's account it shall be classified as Data under this Agreement.
Customer shall retain a copy of their Legacy Data even after completion of the Data Ingestion process.
5.5 Customer agrees that it may be necessary for Mimecast to access the Data to respond to any technical problems
and/or queries, and to ensure the proper working of the Services, all such access will be (a) logged by the Service and may
therefore be monitored by Customer; (b) limited to such Data directly related to the applicable technical problem or query or
relevant portion of the Service; and (e) subject to the terns and conditions of this Agreement.
5.6 If Customer requests that Mimecast access individual emoils, it is Customer's responsibility to ensure that both
Customer and Mimecast are permitted to do so. Customer will indemnify and hold Mimecast harmless from any and all
claims relating to such access.
5.7 If Customer procures the Services via a reseller, then Customer warrants and agrees that it has appointed the
reseller to act as Customer's agent in the procurement and management of the Services and that Mimeoast may deal with that
reseller on that basis. The provision of any Data by that reseller will be deemed to have come from Customer directly and it
is Customer's responsibility to ensure the accuracy and completeness of that Data. Customer hereby authorizes Mimecast to
rely on any Data, information, materials and payment provided to Mimecast by the reseller on behalf of Customer.
Customer will remain responsible and liable to Mimecast for any payment or amount due hereunder that Customer may
provide to reseller or direct reseller to pay until such payment or amount is received by Mimecast. If Customer does not wish f
the reseller to have access to Customer's Data or to act on Customer's behalf then Customer must inform Mimecast of this in
writing.
5.8 Customer hereby assigns to Mimecast all rights, title and interest, including all Intellectual Property Rights in any
suggestions, ideas, modification requests, feedback or other recommendations related to the Services (and not related to {
Data, Permitted Users or to any other information related to Customer, its business, operations or personnel or to any third
party) that Customer or any of its agents, employees or Permitted Users proposes, creates, authors or develops relating to the 1
Services.
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6. CONFIDENTIALITY
6.1 Each party will treat as confidential all information obtained from the other party in connection with this
Agreement, including the Data (and if appropriate Legacy Data) provided by Customer to Mimecast. The receiving party
will not disclose such confidential information (except to those who have a need to know, and are under a duty of non-
disclosure) far purposes other than providing or using the Services. Either party will promptly notify the other in writing of
any loss or unauthorized use or disclosure of or access to such confidential information of which it becomes aware.
6.2 This Section will not extend to information which: (i) is or becomes generally available to the public through no
fault of the receiving party; (ii) was previously rightfully known by the receiving party free of any obligation to keep it
confidential; (iii) is independently developed by the receiving party without reference to or use of the confidential
information of the disclosing party; or (iv) is required to be disclosed by the receiving party as a matter of law.
6.3 These obligations of confidentiality set forth above will survive termination of this Agreement for a period of five
(5) years.
6.4. Mimecast will implement and maintain reasonable and appropriate administrative, technical and physical security
measures to protect Personal Information contained in the Data in Mimecast's possession as required by applicable laws and
regulations relating to the security of Personal Information, including Massachusetts regulation 201 CMR 17.00. Although
the Services may be available to and provided from any location around the world, Mimecast will not store the Data in any
country other than the United States.
6.5 Each patty may use the name, brand narne(s), logo(s) and other identifying marks of the other party for purposes of
identifying such party in lists of clients or service providers, as applicable. Each party retains all right, title and interest in its
own name, brand name(s), logo(s) and other identifying marks. Except for lists of clients or service providers, each party
will obtain prior written consent of the other party for any quotes, text endorsements, press releases or public statements
involving the other party. If the parties agree upon a form of press release, then each party will be entitled to make
reasonable use of that press release.
?.6 The standard set -up ppio — cess rncludeg - g - ragiitte - settle bottorrrof each e- mailprocessed through - the :Services that
states that the e-mail has been processed by Mimecast and/or the Services, this may be deleted by Customer's Service
administrator at any time.
7. DISCLAIMER
7.1 EXCEPT FOR THE EXPRESS SERVICE LEVELS PROVIDED IN THIS AGREEMENT, THE SERVICES
(INCLUDING THE TECHNICAL SUPPORT SERVICE AND DATA INGESTION SERVICE IF APPLICABLE) ARE
PROVIDED "AS IS" AND "AS AVAILABLE" AND THE SERVICE LEVELS CONTAINED IN THIS AGREEMENT
ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THOSE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON - INFRINGEMENT, ALL OF WHICH
ARE EXPRESSLY DISCLAIMED. MIMECAST DOES NOT REPRESENT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER'S REQUIREMENTS.
8. INDEMNIFICATION
8.1 Mimecast will defend and indemnify Customer against all damages and losses finally awarded against Customer or
agreed by Mimecast in final settlement (including reasonable legal fees) arising from a third party claim that use of the
Services as contemplated by this Agreement infringes any United States third patty Intellectual Properly Rights. Customer
will provide Mimecast prompt notice in writing of any such claim or action Mimecast will have sole control of the defense
and all related settlement negotiations (provided that Mimecast obtains Customer's written consent before agreeing to any
non - monetary settlement adversely affecting Customer), and Customer will provide Mimecast with die assistance,
information and authority necessary to perform the above. Reasonable, documented, out -of- pocket expenses incurred by
Customer in providing such assistance will be reimbursed by Mimecast. Customer will be entitled to participate in the
defense with its own counsel and at its own expense.
8,2 If Customer's normal use of or access to the Services is held or believed by Mimecast to infringe as detailed in 8.1
above, theft Mimecast may at its expense:
a) procure the right for the Customer to continue using the Services,
b) modify or replace the affected portion of the Services so as to avoid the infringement (provided that the
functionality of the Services is not materially adversely affected thereby), or
c) if such remedies are not reasonably available, refund to Customer the unearned portion of Fees paid in advance
whereupon this Agreement will terminate.
83 This indemnity will not apply to infi•ingement arising out of the use of the Services or any part thereof in
combination with any equipment and/or computer programs not supplied or approved by Mimecast for use with the Services
if such infringement would have been avoided by the use of the Services without such equipment and/or programs.
8.4 The foregoing states the entire liability of Mimecast and Customer's sole and exclusive remedy with respect to
infringement or alleged infringement of any third party rights of any kind whatsoever.
8.5 Customer will defend and indemnify Mimecast against all damages and losses finally awarded against Mimecast
or agreed by Customer in final settlement (including reasonable legal fees) arising from a third party claim related to
Customer's (including a Permitted User's or any third party using the Services through Customer's account) use of the
US Services Agreement v1.12 Page 4 of 10
Services (as opposed to the Services themselves) to download or share electronic media or Data in violation of such third
party's Intellectual Property Rights in such electronic media or use of the Services or Data that has otherwise harmed or
violated the rights of the third party. Mimecast will provide Customer prompt notice in writing of any such claim or action.
Customer will have sole control of the defense and all related settlement negotiations (provided that Customer obtains
Mitnecast's written consent before agreeing to any non - monetary settlement adversely affecting Mimecast) and Mimecast
will provide Customer with the assistance, information and authority necessary to perform the above. Reasonable,
documented, out -of- pocket expenses incurred by Mimecast in providing such assistance will be reimbursed by Customer.
Mimecast will be entitled to participate in the defense with its own counsel and at its own expense.
9. LIMITATION OF LIABILITY
9.1 SUBJECT TO SECTION 9.3 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY LAW, iN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, OR INDIRECT,
SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR
CUSTOMER'S USE OF 771E SERVICES (INCLUDING AS A RESULT OF ANY BREACH OF ANY TERM OF THIS
AGREEMENT), EVEN IF THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR HAD
OTHER REASON TO KNOW OR iN FACT KNEW OF THE POSSIBILITY THEREOF, IN NO EVENT WILL
MIMECAST BE LIABLE OR RESPONSIBLE FOR ANY INACCURACY, INTEGRITY, ILLEGALITY OR
INAPPROPRIATENESS OF THE DATA OR ANY CONTENT OR MATERIALS THEREIN.
92 Mintecast's maximum liability to Customer for any and all causes of action arising out of or relating to this
Agreement or the Services, whether in contract, tort, statute or otherwise, will be limited in the aggregate to one -half (1/2) of
the Service Fees paid by Customer to Mimecast relating to the twelve (12) month period immediately preceding the last
event giving rise to the claim.
9.3 Notwithstanding anything to the contrary set forth in this Agreement, the limitations set forth in Section 9.1 and
9,2 will not apply to matters subject to indetrutificati under this Agreemen or Customer's infringement or
- misappropnatton ofMimecast's InteTlecmial Pro�ei y�Rtg� - its —
9.4 NOTHING IN THiS AGREEMENT OTHER THAN PARAGRAPH 11.14 WHICH LIMITS CUSTOMER'S
LIABILITY TO THE LIMITED WAIVER OF CUSTOMER'S SOVEREIGN IMMUNITY AS SET FORTH IN SEC,
768.28, FLORIDA STATUTES, WILL EXCLUDE OR LIMIT EITHER PARTY'S LIABILITY IN RESPECT OF DEATH
OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE,
9.5 The Customer acknowledges and agrees that the allocation of risk contained in this Section 9 is reflected in the
Service Fees and is also recognition of the fact that, inter alts, it is not within Mimeeast's control how and for what purpose
the results of the Services are used by Customer.
10. TERM, RENEWAL AND TERMINATION
10.1 This Agreement will be effective from the Effective Date. The Agreement will renew automatically following the
Initial Term for additional twelve (12) month periods (each a "Renewal Tenn ") subject to the terms and conditions of this
Agreement, unless either party gives the other party written notice of its intent not to renew this Agreement, such notice to
be provided no less than thirty (30) days prior to the end of the Initial Term or the then - current Renewal 'Term 7'he Initial
Tenn and any Renewal Terms collectively constitute the "Term" of this Agreement. The Renewal fees will not exceed the
Initial Term fees by more than then current US CPI or 4 %, whichever of the two is lower.
10.2 Either parry may terminate this Agreement immediately on giving notice in writing to the other party if the other
party:
a) commits any material breach of any term of this Agreement and, in the case of a breach capable of being remedied,
will have failed within thirty (30) days after the receipt of a request in writing from the first party to do so, to remedy that
breach, or
b) (i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its
liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of
all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of
substantially all of its obligations-, or
C) assigns this Agreement under Section 11.2.
10.3 Termination of this Agreement will not affect the accrued rights of either party up to the date of termination.
10.4 Mimecast will keep the Data for thirty (30) days following termination or expiration of this Agreement (the
"Retention Period ") after which Mimecast will destroy the Data, unless the parties agree otherwise in writing. Upon
Customer's written request, Mimecast will provide Customer with written confirmation of its destruction of the Data.
Customer may retrieve ( "exgest ") the Data from the Service at any time before the end of the Retention Period, or upon
Customer's payment of reasonable time and material costs to Mimecast, request that Mimecast assist them with the return of
the Data,
II. GENERAL
11.1 Neither party wilt be liable for any delay in performance or failure to perform its obligations (other than a payment
obligation) under this Agreement due to any cause or event outside its reasonable control including, acts of God, civil or
military authority, act of war, accidents, electronic, computer or commun failures, natural disasters or catastrophes,
US Services Agreement v1.12 Page 5 of 10
strikes or other work stoppages or any other cause beyond the reasonable control of the party affected thereby (a "Force
Majeure Event').
112 Either party may assign this Agreement in whole or in part with prior written llp the non- assigning
party. This Agreement will be binding upon the parties hereto and any authorised assigns,
11.3 Any communications of notices required or permitted under this Agreement most be written in dish. Parties
agree that email communication between authorized representatives of each party will be an accepted means of
cormmunication of notices hereunder. Alternatively, the address on the signature page of this Agreement may be used, The
party serving the notice is responsible for, and will verify receipt thereof, by the other party.
11.4 This Agreement and any disputes hereunder will be governed by the laws of the State of Florida without regard to
its conflict of law principles, and any litigation concerning this Agreement shall he submitted to and resolved by a court of
competent jurisdiction in Palm Beach County, Florida. Notwithstanding the foregoing, either party may seek equitable,
injunctive or declaratory relief to enforce any of its Intellectual Property Lights or rights in its confidential information in
any court of appropriate jurisdiction wherever located.
11.5 This Agreement constitutes lie entire agreement. between the parties concerning the sulkjrct matter heroin and
supersedes any and all prior communications, representations and arrangements whether written or oral concerning the
subject matter hereof and parties hereby acknowledges that no reliance is placed on any representation made but riot
referenced in this Agreement, No purchase order or other text which purports to modify or supplement the printed text of
this Agreement will add to or vary the terms of this Agreement. Any such purchase order will be dealt with by Mimecast for
invoicing purposes only,
11,6 With the exception of the Servitx Description Technical Support Service, Service Levels anti if appropriate the
Data ingestion Service Nick; no alteration, modification, waiver or addition to this Agreement. will be valid unless made in
writing and signed by an authorized representative of each party. Mimecast reviews the Service Description, Technical
Support Service and Service bevels annually to ettstire a high level of service and will notify Customer of airy material
_changes_ thereto. _If_such-changws_rtu in a op v l_r tiegr�dalinn of the Service Description TeelulLcal Support_________
Description or Service Levels then Customer may within 30 days of notification from Minlecast of the changes give notice
to Mimecast of the at -will termination of the Agreement at the end of the month in which the notification is received. Any
Fees paid in advance and unearned will be reimbursed and no further Fees will be due.
113 The Section headings herein are provided for convenience only.
11.8 If any provision of this Agreement is held to be unenforceable, such provision will be reformed only to the extent
necessary to make it enforceable, am.d such holding will not impair the validity, legality or enforceability of the remaining
provisions, The failure by a party to exercise any right hereunder or to insist upon a enforce strict performance of any
provision of this Agreement will not waive such party's right to exercise that or oily other right in the future,
11.9 This Agreement is entered into solely between, and may be enforced only by, Mimecast and Customer, and this
Agreement will not be deemed to create any rieJrts in third parties or to create any obligation of a party to any such third
parties, except as otherwise expressly set forth herein.
11.10 Customer acknowledges that Mimecast may use one or more subcontractors tar provide the Services tinder this
Agreeun:nt, tvtimecast's subcontractors will be bound by the same obligations of confidentiality as Mimecast and Mimecast
shall be responsible for any acts or omissions of its subcontractors as ifsueh act(s) or omissions) were those of Mimecast.
11.11 Bach party to this Agreement will be acting as an indepondent contractor, and nothing herein will be constmed to
create a purtuership, „joint venture or ally type of agency relationship between Mimecost and Customer or any Permitted
User.
11.12 This Agreement may be executed in cormterparka and via facsimile or electronically transmitted signature.
11.13 Sections 5 (Proprietary Rights), 8 (Indemnification), 9 (Limitation of Liability), Section 10.4 (post- termination)
and 11 (Ganef at) w.iil survive the termination or expiration of this Agreement for any reason. Section 6 (Confidentiality)
will survive termination or expiration of the Agreement for a period of five (5) years, in accordance with Section 63,
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US Services Agreement v1.12 Page 6 or 10
US Services Agreement v1.12 Page 7 of 10
APPENDIX I
Services
Mimecast UEM Service X Mimecast UEM Enterprise with Ar
chive Power Tools
Mobile Package T X All users
Technical Support X Priority 24/7/365 Support
Set up and Connect X Assisted Implementation
Ingestion X Historical Email import — waived
Training X Live Admin Training and Scheduled Training
1. Number of Permitted Users
The number of Permitted Users licensed hereunder is 110 Customer will notify Mimecast of any
additional Permitted Users requirements prior to them having access to the Services.
2. Fees
Volume of Data to be Ingested: _850 GE. Total Ingestion Fee at $0 per GB: _, _XXX
Fees are detailed below and will be due in accordance with Section 4.1.
S+ �`
Tenn Mimecast-OEM- Service -Fee - $3.75/Penniued- User/month- -- Monthly - - - -- -- -- - - - - ---
Initial Term Mobile Package $0 Per Device Monthly
Initial Term Technical Support Fee $1,200 Per Year (Waived) Monthly (Waived)
Set up and Connect Fee $0 One Off in advance
Ingestion Fee $0 One Off in advance
Training Fee $o One Off in advance
Total Initial Term Fees $4,950,00
Total One Off Fees $0
1 Commencement Date: The Commencement Date is the Effective Date unless otherwise specified on this
Appendix,
4. Initial Term: The Initial Term is 12 months unless otherwise specified on this Appendix.
5. Usage Allowance:
5.1 Customer is allocated a monthly acceptable use of the lesser of:
5.1.1 4000 external emails times the number of Permitted Users. For example; 200 Permitted Users
could yield up to 800,000 external emails per month; or
5,1.2 400ME of transmitted data times the number of Permitted Users. For example: 200 Permitted
Users could yield up to 80GB of transmitted data.
5.2 Customer subscribing to a product including journaling is allocated an additional monthly acceptable use
allowance of the lesser of
5.2.1 5000 internal emails times the number of Permitted Users
5.2.2 500MB of transmitted data times the number of Permitted Users
6 Overages and Overage Fees
Mimecast will monitor the Customer's Usage Allowance on a monthly basis as set forth above. If in any calendar month
Customer exceeds any of the Usage Allowances defined above, Customer will be charged an "Overage Fee ". The Overage
Fee is calculated by dividing the excess email and/or byte count by the appropriate Permitted User Alowance, the resulting
number will be multiplied by the monthly Permitted User Service Fee. Customer will be invoiced at the end of each calendar
quarter for any Overage Fees for any monthly Overage Fees incurred during that quarter.
US Services Agreement v1.12 Page 8 of 10
Example: Overage Fee applied to email use for July - (Ady actual email usage / Monthly External Email Allowance) x
monthly Permitted User Service Fee.
APPENDIX 11
Mimecast Data Ingestion Service Summary (MDIS)
(This Appendix may be deleted if no Ingestion Services are required)
The Mimecast Data Ingestion Service ( "MDIS ") provides a reliable and safe method for transferring historical email data,
(that is emails and their attachments, "Legacy Data "), from the various email archiving solutions previously used by the
Customer, either onsite or online, and ingesting it into Customer's Mimecast account, to allow Permitted Users full visibility
of their current Data and their Legacy Data.
The full conditions and implementation details of the Mimecast Data Ingestion Service will be provided to the Customer by
Mimecast prior to commencement, and Customer must ensure the prerequisite conditions are met and the implementation
details are followed. Any error or deviation from these instructions will reduce Mimecast's ability to correctly ingest the
Legacy Data into Customer's Mimecast account and may cause delays.
MDIS Process Averylety
Customer shall notify Mimecast when the Legacy Data is prepared in the format required, meets the MDIS prerequisites and
is ready for collection. This will include the exact volume of Legacy Data to be ingested and other requested information
required by Mimccast to courier a hard drive to Customer. Mimecast will then provide Customer with an encrypted external
— --
---hard- drive -and -C-ustomer-is-responsible-for- trawferTing-the--L-egacy-Date-to-tiiis-inedia-and -securely transporting - it -to - -
Mimecast.
Customer is responsible for the security and safe delivery of the media (either in person or by courier) until Mimecast
accepts receipt of it, when the responsibility for the security of the media passes to Mimecast. Mimecast will notify
Customer by email of receipt of the media. Should Legacy Data need to be returned to Customer for any reason, Mimecast
will ensure secure transportation.
Customer acknowledges hard drive itself, and the Legacy Data thereon is not immune from corruption at any time and
Customer shall retain a back -up copy of all Legacy Data. Mimecast shall not be liable in any way for Legacy Data until the
Legacy Data Ingestion process is fully completed and signed off by both parties. Mimecast will retain the Legacy Data
media for the lifetime of the media, or the duration of the Services Agreement, whichever is shorter. Customer must retain
a back -up copy of all Legacy Data at all times.
Customer must guarantee the integrity of Legacy Data including scanning for, and removing viruses and spam, If the
Legacy Date contains emails that are deemed to be spam or junk mail, or contain viruses, it is Customer's responsibility to
remove such emails before ingestion, Mimecast will ingest all Legacy Data, as supplied, into Customer's account. Should
Customer require Mimecast to scan the Legacy Data for vinnses this will be an additional, chargeable service and will extend
the ingestion process.
Ingested Data will be recognisable by its header tags and will not be included in Mimecast Service Level measurements,
The Legacy Data will be checked by Mimecast to ensure that.
• The external hard drive is encrypted and that the Legacy Data is accessible
• The naming conventions have been adhered to
• No files are tipped unless by Mimecast utilities
• No files are password protected unless by Mimccasi utilities
If any of the above checks fail, the Legacy Data may be returned to the Customer.
With the exception of occasionally having to rename files that cannot be processed, Mimecast will riot modify or directly
work on the original Legacy Data supplied to ensure that the original Legacy Data can be referenced at a later date, should
any issues arise.
Mimecast will then extract, convert, prepare and ingest the Legacy Data into the Customer's Mimecast account. At the end
of this process it list of inaccessible files will be provided to Customer to resolve and return if required.
During the ingestion process, Mimecast will de- duplicate between Legacy Data being ingested but not with Data already
archived, In some cases, Legacy Data may not contain sufficient information for Mimecast to determine duplication. In this
instance, Mimecast will import a duplicate copy of the Legacy Data.
_ .. .... .......... .... ... _..... _......_. .- _....... _........._....................
US Services Agreement v1.12 Page 9 of 10
Mimecast can only ingest Legacy Data as the Customer presents it. It will not be validated, sanitized or verified prior,
during or after the ingestion process.
co moletion
The amount of time required for the Legacy Data ingestion process is dependent on many factors, for example the amount of
Legacy Data, the quality of the Legacy Data and the adherence by Customer to the processes, Mimecast may give a
guideline as to how long the ingestion process may take, based on previous experience. The majority of the potential delays
and issues in the ingestion process are within the Customer's control and Mimecast cannot therefore be liable for any delays
in the process.
Customer must commence the Data Ingestion Service by providing Mimecast with the Legacy Data within twelve months of
the Effective Date of the Agreement; otherwise Ingestion Service Fees will be forfeited.
Customer will be advised by email when the Legacy Data ingestion process has been completed, Customer then has fifteen
(15) days from the notification date to sign -off acceptance of the ingested Legacy Data or notify Mimecast of anomalies in
the ingested Legacy Data including any material non- conformance by Mimecast of the agreed Ingestion process. If no
notification of sign -off or list of anomalies is received by Mimecast within this time then the legacy Data ingested will be
deemed as unconditionally accepted by Customer and be considered as Data under the Services Agreement. Mimecast and
Customer shall work together to resolve any identified anomalies, however Mimecast shall have no liability or obligation to
Customer unless it has received written notice from Customer of any anomalies within fifteen (15) days from the date of
completion of the Data Ingestion Services.
US Services Agreement v1,12 Page 10 of 10