THE PRODUCTS ARE PROVIDED ONLY ON THE CONDITION THAT SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT AND THE MATERIALS REFERENCED HEREIN (“AGREEMENT”) BETWEEN SUBSCRIBER AND FORCEPOINT. BY ACCEPTING THIS AGREEMENT OR BY USING THE PRODUCTS, SUBSCRIBER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND HAS THE AUTHORITY TO ENTER INTO AND AGREES TO BE BOUND BY THIS AGREEMENT.
“Affiliate” means an entity controlling, controlled by, or under common control with Subscriber, where control is established by a majority ownership (greater than fifty percent (50%)) in or over an entity; provided, however, that the term “Affiliate” will not include an entity that is a direct competitor of Forcepoint.
“Application” or “App” means a third-party cloud-based computing application identified at the time of Product implementation.
“Bulk Mail” means a large number of email messages with similar content sent or received in a single operation or a series of related operations.
“Cloud Services” means one or more of Forcepoint’s cloud-based service offerings that have been included in an Order, including their associated components, content, updates, and upgrades thereto (but excludes products for which Forcepoint generally charges a separate fee), if any, and any reports generated as a result of use that are made available to Subscriber.
“Databases” means proprietary database(s) of URL addresses, email addresses, Malware, applications, analytical models, and other valuable information.
“Database Updates” means changes to the content of the Databases.
“Device” or “Seat” means each computer (whether physical or virtual), electronic appliance or device that is authorized to access or use the Products, directly or indirectly.
“Documentation” means the Product installation instructions, user manuals, release notes, and operating instructions prepared by Forcepoint, in any form or medium, as may be updated from time to time by Forcepoint and made generally available to Subscriber.
“Error” means a material failure of the Product to conform to the Documentation, which is reported by Subscriber and replicable by Forcepoint.
“Forcepoint” means, as the context requires: (i) Forcepoint LLC, a Delaware limited liability company with its principal place of business at 10900-A Stonelake Blvd., 3rd Floor, Austin, TX 78759, USA; or (ii) Forcepoint International Technology Limited, with a principal place of business at Minerva House, Simmonscourt Road, Dublin 4, Ireland; or (iii) Forcepoint Federal LLC, with a principal place of business at 12950 Worldgate Drive, Suite 600, Herndon, VA 20170; or (iv) a corporation or entity controlling, controlled by or under the common control of Forcepoint with whom an Order has been placed referencing this Agreement.
“Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
“Node” means any kind of computer, electronic appliance, or device capable of processing data, including diskless workstations, personal computer workstations, networked computer workstations, homeworker/teleworker home-based systems, file and print servers, email servers, Internet gateway devices, storage area network servers (SANs), terminal servers or portable workstations connected or connecting to the server(s) or network that is authorized to access or use the Products, directly or indirectly. In the case of a virtual system, each virtual machine or instance running the Product is a Node.
“Open Relay” means an email server configured to receive email from an unauthorized third-party and that forwards the email to other recipients who are not part of the server’s email network.
“Order” means a purchase commitment mutually agreed upon between (i) Forcepoint and Subscriber, or (ii) a Forcepoint authorized reseller and Subscriber.
“Permitted Capacity” means the number of Devices, Nodes, Seats, Users, or other license metrics as set forth in the Order.
“Products” means Software, Databases, Database Updates, Software Upgrades, together with applicable Documentation and media, and if purchased pursuant to an Order, Technical Support, Cloud Services, and Services Offerings.
“Services Fees” means the agreed upon fees in an Order for the Services Offerings.
“Services Offerings” means Forcepoint’s professional services offerings described in a Forcepoint published services datasheet or services proposal.
“Software” means Forcepoint’s proprietary software applications, in object code only.
“Software Upgrades” means certain modifications or revisions to the Software but excludes products for which Forcepoint generally charges a separate fee.
“Spam” means a large number of unsolicited email messages (typically over 500 per month) with similar content sent or received in a single operation or a series of related operations.
“Subscriber” means the individual, company, Affiliate, or other legal entity that has placed an Order, is the ultimate end user of the Products, and if enrolling in Cloud Services, has registered its details on the Forcepoint portal.
“Subscription” means a non-exclusive, personal, nontransferable right to use the Products and use the output of the Services Offerings in accordance with this Agreement and the Order.
“Subscription Fees” means the agreed upon fees in an Order for a Subscription.
“Subscription Term” means the agreed upon time period in an Order.
“Technical Support” means the support level purchased pursuant to an Order as further described in Section 5, including if and when available: (i) Error corrections or workarounds so that the Products operate in substantial conformance with the Documentation, and (ii) the provision of Database Updates and Software Upgrades.
“User” means (i) any person utilizing the network with access to the Products directly or indirectly, who is an employee, temporary employee, customer, contractor, or guest of Subscriber; or (ii) for Cloud Services a separate email address or account that receives electronic messages or data within Subscriber’s email system or network. For the Cloud Services email solutions, up to five aliases may be considered one User. The total number of concurrent browser sessions open for selective isolation mode Users or targeted mode Users may not exceed 10% of the Permitted Capacity.
“Web Content” means any data and requests for data processed by Cloud Services including that accessed using the Internet protocols HTTP and FTP.
2. Product Subscription.
Subject to the provisions contained in this Agreement, and timely payment of the applicable fees, Forcepoint hereby grants Subscriber, for the Subscription Term, a Subscription to use the Products, receive Technical Support, and access the Cloud Services (including any output of the Services Offerings), identified in the Order solely for Subscriber’s internal business purposes up to the Permitted Capacity set forth in the Order. Subject to compliance with the terms of this Agreement, Subscriber may relocate or transfer the on-premise Product for use on a different server within its location. Subscriber will not and may not permit any third party to copy the on-premise Products, other than copies made solely for data backup and internal testing purposes. Any source code provided to Subscriber by Forcepoint is subject to the terms of this Agreement. Forcepoint may modify, enhance, replace, or make additions to the Products at any time without notice. Subscriber understands that its right to use the Products is limited by the Permitted Capacity purchased, and Subscriber use may in no event exceed the Permitted Capacity authorized under the applicable Order. The Permitted Capacity provided in the Order(s) represents minimum amounts that Subscriber has committed to for the Subscription Term. If Subscriber’s use exceeds the Permitted Capacity, Subscriber must purchase additional Permitted Capacity sufficient for the balance of the then-current Subscription Term to cover the excess use.
3. Provision of Cloud Services.
3.1 Forcepoint will use reasonable efforts to provide Cloud Services for the Subscription Term. The then-current Cloud Services service levels are incorporated by reference into this Agreement and may be found at: Cloud Services Service Level Agreement. Forcepoint makes no service level commitments when Cloud Services are used in connection with Bulk Mail. Forcepoint makes no service level commitments for the Cloud Services’ functionality to the extent it is used to monitor access to third-party services where the continued availability of the functionality is adversely impacted by the third-party’s access policies.
3.2 If Forcepoint determines that the Products are being used to distribute Spam or Malware, or that the security or proper function of Cloud Services would be compromised due to hacking, denial of service attacks or other activities originating from or directed at the network could compromise the security or operation of Cloud Services, then Forcepoint may immediately suspend Cloud Services until the problem is resolved. Forcepoint will promptly notify and work with Subscriber to resolve the issues.
3.3 If Cloud Services are suspended or terminated, Forcepoint may reverse all configuration changes made during Cloud Services enrollment. It is Subscriber’s responsibility to make the server configuration changes necessary to reroute any email, Web Content, and traffic flowing through the Cloud Services.
3.4 Forcepoint may use Malware, Spam, and other information passing through or relating to usage of the Products for the purposes of developing, analyzing, maintaining, reporting on, and enhancing the Products and services.
3.5 Prior to enrollment in Cloud Services and at any time during the Subscription Term, Forcepoint may test whether Subscriber’s email system is acting as an Open Relay. If Forcepoint finds the system is an Open Relay, Forcepoint will inform Subscriber and may suspend the applicable Cloud Services until the problem is resolved.
3.6 If in any one calendar month the total number of emails processed in performance of Cloud Services for inbound and outbound scanning of email traffic divided by the Permitted Capacity is greater than either: (i) 10,000 emails per User, then Subscriber will make reasonable efforts to implement and maintain an accurate list of all valid email addresses belonging to Subscriber for which Cloud Services scan inbound or outbound email; or (ii) 30,000 emails per User, then Forcepoint may terminate the applicable Cloud Services Subscription upon 30 days’ written notice unless Subscriber purchases Subscriptions to increase the Permitted Capacity.
3.7 If in any one calendar month the total bandwidth used in the performance of Cloud Services for web access filtering divided by the Permitted Capacity is greater than 0.02Mbps, then Forcepoint may terminate the applicable Cloud Services Subscription upon 30 days’ written notice unless Subscriber purchases Subscriptions to increase the Permitted Capacity.
3.8 If in any one calendar month the total bandwidth used in the performance of Cloud Services for security access policy enforcement solution divided by the Permitted Capacity is greater than 0.02Mbps, then Forcepoint may terminate the applicable Cloud Services Subscription upon 30 days’ written notice unless Subscriber purchases Subscriptions to increase the Permitted Capacity.
3.9 If in any one calendar month the total throughput including data sent and received through Cloud Services for internet and internal application access policy enforcement divided by the Permitted Capacity is greater than 3 Gigabytes per User, then Forcepoint may terminate the applicable Cloud Services Subscription upon 30 days prior written notice unless Subscriber purchases additional Permitted Capacity.
4. Subscriber Obligations.
4.1 Subscriber will: (i) comply with all applicable laws, statutes, regulations and ordinances, (ii) only use the Products for legitimate business purposes that may include sending and receiving business and personal email or Web Content by its employees; (iii) not use the Products to construct or transmit Spam, Malware, or excessive email; and (iv) ensure that security controls are not circumvented by its acts or omissions.
4.2 Subscriber acknowledges that certain Products may be configured by Subscriber to capture files for submission to other Products for Malware analysis. The Product analyzing files may archive Malware code extracted from such files. If Subscriber downloads such extracted Malware code, Subscriber recognizes the risk associated with Malware code, and any use by Subscriber of Malware code is at Subscriber’s sole risk and liability.
4.3 Subscriber acknowledges that the scoring and content by some Products is based on available information at the time it is gathered and may be incomplete, misinterpreted, and is subject to change at any time. As such it is provided for informational purposes only, and Subscriber is solely responsible for decisions Subscriber makes regarding its use of Applications or services based on such information.
4.4 Subscriber is responsible for (i) having the authority, rights, or permissions to use all domains registered to the Products, (ii) obtaining any necessary consents from its employees, (iii) maintaining all necessary rights to access Application(s), and (iv) maintaining all permissions, authorizations, licenses, and approvals to access and use the data and information inputted, displayed, or processed (including all output and data developed or derived) as a result of Subscriber’s use of the Products to access and use data sources and systems.
4.5 Subscriber will defend, indemnify and hold Forcepoint harmless against any loss, award, damage, or costs (including reasonable attorneys' fees) incurred in connection with any claims, demands, suits, or proceedings (“Claims”) made or brought against Forcepoint by a third party alleging or related to Subscriber’s (i) violation of its obligations in this Section 4; (ii) infringement of intellectual property rights; (iii) acts or omissions in relation to Subscriber provided hardware, equipment, or third party software licenses used in connection with the Products; (iv) civil or criminal offenses; (v) transmission or posting of obscene, indecent, or pornographic materials; (vi) transmission or posting of any material that is slanderous, defamatory, offensive, abusive, or menacing or that causes annoyance or needless anxiety to any other person; or (vii) transmission of information through the Products.
4.6 Subscriber will cooperate with Forcepoint personnel providing any Services Offerings, and to provide reasonable assistance, which may include: (i) gathering relevant supporting documentation; (ii) ensuring appropriate Subscriber personnel are assigned to the project and are able to devote sufficient time to facilitate the project; (iii) granting resource access to information, systems, and licenses related to the scope of the project; (iv) providing building and network access before, during, and after normal business hours, workspace, and workstations for each of the Forcepoint personnel, logon IDs and security access to all required Products, and adequate test environment, and any reasonable and appropriate data to perform the Services Offerings.
5. Technical Support.
5.1 Technical Support is provided under the then-current Forcepoint technical support policies, are incorporated by reference into this Agreement and may be found at: Technical Support Description. Technical Support, Database Updates and Software Upgrades will be provided to Subscriber only if Subscriber has paid the applicable Subscription Fees. Forcepoint may require Subscriber to install Software Upgrades up to and including the latest release.
5.2 Forcepoint’s obligation to provide Technical Support is limited to: (i) a Product that has not been altered or modified by anyone other than Forcepoint or its licensors; (ii) a release for which technical support is provided; (iii) Subscriber’s use of the Product in accordance with the Documentation; and (iv) errors and malfunctions caused by systems or programs supplied by Forcepoint. If an Error has been corrected or is not present in a more current version of the Product, Forcepoint will provide the more current version via Technical Support but will not have any obligation to correct such Error in prior versions.
5.3 Technical Support for on-premise Products may be limited to the most current release and the most recent previous sequential major release of the Product. Forcepoint reserves the right to terminate the Subscription or increase the associated fees upon 60 days’ notice should Subscriber not stay current with a supported release in accordance with this Section.
6. Intellectual Property Rights.
All right, title, and interest in and to the Products, any modifications, translations, or derivatives thereof including any related scripts, tools, and know-how and all applicable intellectual property and proprietary rights thereto remain exclusively with Forcepoint or its licensors. The Products may include software products licensed from third parties. Such third parties have no obligations or liability to Subscriber under this Agreement but are third-party beneficiaries of this Agreement. Forcepoint owns any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Subscriber relating to the Products. Except as otherwise expressly provided, Forcepoint grants no express or implied right under Forcepoint patents, copyrights, trademarks, or other intellectual property rights, and all rights not expressly granted to Subscriber in this Agreement are reserved to Forcepoint and its licensors. Subscriber may not remove any proprietary notice of Forcepoint or any third-party from the Products or any copy of the Products, without Forcepoint’s prior written consent.
7. Protection and Restrictions.
7.1 Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information that Disclosing Party desires Receiving Party to treat as confidential. "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including prototypes, technical data, trade secrets and know-how, product plans, Products, customer lists and customer information, prices and costs, databases, inventions, processes, hardware configuration information, finances, budgets and other business information), which is designated as "Confidential," "Proprietary" or some similar designation at or prior to the time of disclosure, or that should otherwise reasonably be considered confidential by Receiving Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information will not, however, include any information that Receiving Party can document : (i) was publicly known and made generally available prior to the time of Disclosing Party’s disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of Receiving Party; (iii) is already in Receiving Party’s possession at the time of disclosure; (iv) is lawfully obtained by Receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by Receiving Party without use of or reference to Disclosing Party's Confidential Information. The Receiving Party will treat Disclosing Party’s Confidential Information as non-public confidential information and will not disclose it to any person other than Disclosing Party and employees and contractors of Receiving Party on a need to know basis and Receiving Party will protect the confidentiality of such Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event with less than a reasonable standard of care. Subscriber’s use of the Products to process data is not a disclosure of Confidential Information to Forcepoint for purposes of this Section. Furthermore, neither party will use the Confidential Information of the other party for any purpose other than carrying out its rights and obligations under this Agreement.
7.2 Subscriber will take all reasonable steps to safeguard the Products to ensure that no unauthorized person has access and that no unauthorized copy, publication, disclosure, or distribution, in any form is made. The Products contain valuable, confidential information and trade secrets and unauthorized use or copying is harmful to Forcepoint. Subscriber may use the Products only for the internal business purposes of Subscriber. Subscriber may not assign more than 20 administrators to administer certain Forcepoint products. Subscriber will not itself, or through any affiliate, employee, consultant, contractor, agent or other third-party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Products; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Products, in whole or in part, for competitive purposes or otherwise; (iii) conduct penetration testing on or within the Products for any reason; (iv) allow access to, provide, divulge or make available the Products to any user other than Subscriber’s employees and contractors who have a need to such access and who will be bound by nondisclosure obligations that are at least as restrictive as the terms of this Agreement; (v) write or develop any derivative works based upon the Products; (vi) modify, adapt, translate or otherwise make any changes to the Products or any part thereof; (vii) use the Products to provide processing services to third-parties, or otherwise use the same on a ‘service bureau’ basis; (viii) disclose or publish, without Forcepoint’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Products; (ix) otherwise use or copy the same except as expressly permitted herein; (x) use any third-party software included in the Products independently from the Forcepoint proprietary Products. Subject to the terms of this Agreement, Subscriber may allow its agents and independent contractors to use the Products solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Products by any other entity is forbidden and a violation of this Agreement. Subscriber must not use the Products to filter, screen, manage or censor Internet content for consumers without permission from the affected consumers and Forcepoint’s express prior written approval, which may be withheld in Forcepoint’s sole discretion. If any additional third-party end-user license agreement or open source software license agreement is (a) attached to this Agreement or the Order, or (b) included in the Product “about” file, “readme” file or Documentation, then Subscriber’s use of the third-party software is further restricted by and subject to such license.
8. Financial Terms.
Fees and payment terms are specified in the applicable Order. Except as otherwise expressly specified in the Order: (i) all recurring payment obligations start from the receipt of the Order; (ii) when the Order is placed directly with Forcepoint fees must be paid within 30 days after the invoice date; (iii) upon the expiration of each Subscription Term, the Subscription Fees will be Forcepoint’s then-current commercial list price for such Products; and (iv) interest accrues on past due balances at the highest rate allowed by law. Failure to make timely payments is a material breach of the Agreement and Forcepoint will be entitled to suspend any or all of its performance obligations hereunder in accordance with the provisions of Section 12 and to modify the payment terms, including requiring full payment before Forcepoint performs any obligations in this Agreement. Subscriber will reimburse Forcepoint for any expenses incurred, including interest and reasonable attorney fees, in collecting amounts due to Forcepoint hereunder that are not under good faith dispute by Subscriber. Amounts paid or payable for Products are not contingent upon the performance of any consulting or other professional services. Forcepoint’s reasonable travel and lodging expenses incurred in the performance of services on Subscriber’s site will be billed separately at actual cost. Subscriber is responsible for payment of all taxes (excluding those on Forcepoint's net income) arising out of this Agreement, except to the extent a valid tax exemption certificate or other written documentation acceptable to Forcepoint to evidence Subscriber’s tax exemption status is provided by Subscriber to Forcepoint prior to the delivery of Products or services.
9. Limited Warranty; Remedies; Disclaimer.
9.1 For the Subscription Term, Forcepoint warrants that the Products (other than Services Offerings), as updated from time to time by Forcepoint and used in accordance with the Documentation and the Agreement by Subscriber, will operate in substantial conformance with the Documentation under normal use. Forcepoint warrants that Services Offerings will be performed in a professional and workmanlike manner and Forcepoint will comply with all applicable laws in providing the Services Offerings. Forcepoint does not warrant that: (A) the Products will (i) be free of defects, (ii) satisfy Subscriber’s requirements, (iii) operate without interruption or error, (iv) always locate or block access to or transmission of all desired addresses, emails, Malware, applications and/or files, or (v) identify every transmission or file that should potentially be located or blocked; (B) data contained in the Databases will be (i) appropriately categorized or (ii) that the algorithms used in the Products will be complete or accurate; or (C) data contained in and risk scoring from the Cloud Services will be complete or interpreted correctly.
9.2 Subscriber must promptly notify Forcepoint in writing of a claim. Provided that such claim is reasonably determined by Forcepoint to be Forcepoint’s responsibility, Forcepoint will, within 30 days of its receipt of Subscriber’s written notice, (i) correct the Error or provide a workaround; (ii) provide Subscriber with a plan reasonably acceptable to Subscriber for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable efforts from Forcepoint at Forcepoint’s discretion, then Forcepoint may terminate the affected Product Subscription and Subscriber will be entitled to a refund of the unused Subscription Fees paid for the affected Product applicable to the balance of the then-current Subscription Term. This paragraph sets forth Subscriber’s sole and exclusive remedy and Forcepoint's entire liability for any breach of warranty or other duty related to the Products.
9.3 This warranty is void and Forcepoint is not obligated to provide technical support if a claimed breach of the warranty is caused by: (i) any unauthorized modification of the Products or tampering with the Products, (ii) use of the Products inconsistent with the accompanying Documentation, (iii) Subscriber’s failure to use any new or corrected versions of the Product made available by Forcepoint; or (iv) breach of this Agreement by Subscriber or its users.
9.4 THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE IN LIEU OF, AND FORCEPOINT, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT.
10. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FORCEPOINT, ITS AFFILIATES, ITS LICENSORS OR RESELLERS WILL NOT BE LIABLE FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF GOODWILL, OPPORTUNITY, OR REVENUE; (IV) SUBSCRIBER’S DECISIONS BASED ON ITS INTERPRETATION OF THE OUTPUT FROM THE PRODUCTS; NOR (V) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER FORESEEABLE OR UNFORESEEABLE INCLUDING CLAIMS FOR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD-PARTY CLAIMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FORCEPOINT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY FORCEPOINT FOR SUBSCRIBER’S APPLICABLE SUBCRIPTION TO THE PRODUCTS OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCTS THAT DIRECTLY CAUSED THE LIABILITY.
11. Intellectual Property Indemnification.
In the event of a third-party claim, suit or proceeding against Subscriber asserting that use of the Product as permitted in this Agreement infringes a third-party’s patent, copyright, or trademark right recognized in any jurisdiction where the Product is licensed, Forcepoint at its expense will defend Subscriber and indemnify Subscriber against costs, expenses (including reasonable attorneys' fees), and damages payable to any third party in any such suit or cause of action that are directly related to that claim. Forcepoint’s obligation under this Section is contingent upon Subscriber providing Forcepoint with: (a) prompt written notice of the suit or claim; (b) the right to solely control and direct the defense of the claim; and (c) reasonable cooperation. Subscriber may participate in the defense at its own expense. Forcepoint will have no liability for any claim of infringement resulting from: (i) modification of the Products by anyone other than Forcepoint; (ii) a combination of the Products with other hardware or software not provided by Forcepoint; or (iii) failure by Subscriber to implement Software Upgrades and Database Updates. In the event the Products, in Forcepoint’s opinion, are likely to or do become the subject of a claim of infringement, Forcepoint may at its sole option and expense: (x) modify the Products to be non-infringing while preserving equivalent functionality; (y) obtain a license for Subscriber’s continued use of the Products; or (z) terminate this Agreement and the license granted hereunder, accept return of the Products and refund to Subscriber the unused Subscription Fees paid for the affected Product applicable to the balance of the then-current Subscription Term. THIS SECTION SETS FORTH FORCEPOINT’S ENTIRE LIABILITY AND OBLIGATION AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR CLAIMS OF INFRINGEMENT.
12. Term and Termination.
12.1 This Agreement continues in full force and effect until the expiration or termination of the Order(s), unless otherwise terminated earlier or auto-renews as provided hereunder. All Orders are non-cancellable, and there will be no fee adjustments or refunds for any reason, including decreases in usage, during the Subscription Term. Subscriber’s continued use of Cloud Services beyond the Subscription Term will renew the Subscription to Cloud Services on a month-to-month basis at Forcepoint’s then-current commercial list price until terminated with at least 30 days’ notice by either party unless a longer Subscription Term has been agreed upon in an Order. Upon termination or expiration of the Subscription Term, Subscriber’s right to use the Products terminates. In the event the Subscription expires but is later renewed, Subscriber’s renewal must include Subscription Fees for the lapsed period between the date the prior Subscription expired and the date it is renewed.
12.2 Product evaluation subscriptions are available for a period of up to 30 days, and limited availability Product subscriptions may be available for the time period determined by Forcepoint. Product evaluation subscriptions and limited availability Product subscriptions are each subject to the terms and conditions of this Agreement, except however that: (i) evaluation subscriptions and limited availability Product subscriptions may only be used to evaluate and facilitate Subscriber’s decision to purchase a subscription to Products; and (ii) evaluation subscriptions and limited availability Product subscriptions are provided by Forcepoint on an AS IS and AS AVAILABLE basis without warranties of any kind. At the end of the evaluation period or the limited availability Product subscription period, Subscriber must place an Order and pay the applicable Subscription Fees, or this Agreement terminates as related to the evaluation subscription or limited availability Product subscription. Subscriber’s continued use of the Products after an evaluation or limited availability Product subscription period is subject to this Agreement.
12.3 Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of payment terms, which will have a 10 day cure period; or (ii) the other party ceases business operations; or (iii) the other party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days after commencement of one of the foregoing events). Upon notification of termination by either party, Subscriber must uninstall any Products, cease using and destroy or return all copies of the Products to Forcepoint, and to certify in writing that all known copies thereof, including backup copies, have been destroyed. Sections 1, 6-12, and 14-17 will survive the termination of this Agreement.
12.4 Forcepoint will be entitled to suspend any or all services upon 10 days written notice to Subscriber in the event Subscriber breaches this Agreement. Additional charges may apply to reinstate service following suspension.
13. Compliance with Laws; Data Processing.
Each party will comply with all applicable laws and regulations, which may include the European Union’s General Data Protection Regulation, that may apply to issues including the protection of personal data, and anti-bribery. Subscriber must obtain any required consents (including employee consent) addressing the interception, reading, copying, analyzing, or filtering of emails and their attachments as well as any local government permits, licenses, or approvals required to use the Products. Neither party will use any data obtained via the Products for any unlawful purpose. Each party’s obligations with respect to the treatment of data submitted to Forcepoint pursuant to this Agreement are incorporated by reference into this Agreement and may be found at: Forcepoint Data Processing and Data Protection Measures.
14. Rights of U.S. Government Subscribers.
The Products meet the definition of “commercial item” in Federal Acquisition Regulation (“FAR”) 2.101, were developed entirely at private expense, and are provided to Government Subscribers exclusively under the terms of this Agreement. Software, including Software Upgrades, is “commercial computer software” and applicable Documentation and media are “commercial computer software documentation,” as those terms are used in FAR 12.212 and DFARS 227.7202. Use of the Products by the U.S. Government constitutes acknowledgment of Forcepoint's proprietary rights therein, and of the exclusive applicability of this Agreement.
Commodities, technology, and software, including the Products (collectively referred to as “items”) are subject to the export control laws of the United States and other countries that may lawfully control the export of such items. Moreover, the furnishing of support services with respect to items that are controlled as defense or military items may also be subject to such laws. Subscriber will not transfer such items or furnish such services except in compliance with the export laws of the United States and any other country that may lawfully control the export of such items or the provision of such services. Subscriber will indemnify and hold Forcepoint harmless from any claims, liabilities, penalties, forfeitures, and associated costs and expenses (including attorneys’ fees) that Forcepoint may incur due to Subscriber’s non-compliance with applicable export laws, rules, and regulations. Subscriber will immediately notify Forcepoint of any violation of any export law, rule, or regulation, which may affect Forcepoint or relate to the activities covered under this Agreement.
Subscriber must maintain records sufficient to track its compliance with the terms of this Agreement, and upon Forcepoint’s request, Subscriber will provide a written certification and such supporting records confirming its compliance with this Agreement. Further, during the Subscription Term and one year thereafter, Forcepoint or Forcepoint’s selected independent auditor may review Subscriber’s records related to Subscriber’s use, deployment, installation, provision of, or access to the Products to verify Subscriber’s compliance with this Agreement. Subscriber will provide reasonable assistance, access to personnel, facilities, and systems, as well as information necessary to facilitate Forcepoint’s compliance verification. The verification will be performed during regular business hours and will not unreasonably interfere with Subscriber’s standard business activities. The cost of the verification will be borne by Forcepoint unless a discrepancy indicating that additional fees are due to Forcepoint, in which case the reasonable cost of the verification will be borne by Subscriber. Subscriber will cure any noncompliance and will pay any associated fees and costs, including Product usage, Technical Support, cost of verification, and interest due as a result of such noncompliance within 30 days of notification. Subscription Fees will be Forcepoint’s commercial list price at the time of the identified noncompliance and will not include the benefit of any discounts or prior pricing terms offered to Subscriber. The rights and remedies under this Section are in addition to any other rights Forcepoint may have under this Agreement. Additionally, Forcepoint may at any time, without notice, during the term of this Agreement access Subscriber’s system, subject to applicable local law, to determine whether Subscriber and its users are complying with the terms of this Agreement. Subscriber acknowledges that the Products may include a license manager component to track usage of the Products and Subscriber will not impede, disable, or otherwise undermine such license manager’s operation.
17.2 Subscriber may not transfer any of Subscriber’s rights to use the Products or assign this Agreement to another person or entity, without first obtaining Forcepoint’s prior written approval.
17.3 Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid. Notices sent to Forcepoint must be sent to the attention of the General Counsel at 10900-A Stonelake Blvd., 3rd Floor, Austin, TX 78759 USA. Notices sent to Subscriber will be sent to Subscriber’s address in Forcepoint’s system of record. Notices are considered to have been received at the time of actual delivery in person, two business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this paragraph.
17.4 Any dispute arising out of or relating to this Agreement or the breach thereof will be governed by the federal laws of the United States and the laws of the State of Delaware, USA, for all claims arising in or related to the United States, Canada, Japan, or Mexico and Dublin, Ireland for all other claims, without regard to or application of choice of laws, rules or principles. Both parties hereby consent to the exclusive jurisdiction of: (i) the state and federal courts in Austin, Texas, USA, for all claims arising in or related to the United States, Canada, Japan or Mexico; and (ii) the competent courts in Dublin, Ireland for all other claims, provided however that Forcepoint may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue.
17.5 Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities.
17.6 These terms and conditions, including all incorporated materials and hyperlinked terms and policies, constitute the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. The terms “including” and “include” means “including without limitation” and “include without limitation”, respectively. Subscriber agrees that this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Forcepoint regarding future functionality or features. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties or posted by Forcepoint at: Legal Information. Forcepoint is not obligated under any other agreements unless they are in writing and signed by Forcepoint’s authorized representative. All pre-printed or standard terms of any Subscriber’s purchase order or other business processing document have no effect, and the terms and conditions of this Agreement will prevail over such forms, and any additional, inconsistent, conflicting, or different terms in such forms will be void and of no force and effect. In the event of a conflict between the terms of this Agreement and the terms of an Order, the terms of this Agreement prevail.
17.7 If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will be interpreted so as reasonably to affect the intention of the parties.