Terms & Conditions
The terms and conditions of
this Agreement, consisting of the attached Invoice (“Invoice”) and the
documents listed herein, collectively (“The Agreement”), shall constitute the
entire Agreement between Business Intelligence 101 (“BI101”), an authorized
Postini reseller, and the Customer identified on the Invoice and shall
supersede and replace any previous or contemporaneous written or oral
agreement, warranty, representation or understanding.
1. SERVICES
BI101 shall provide to
Customer inbound message filtering services as specified in the Invoice and the
BI101 Services Schedule (“Services”) by activating email accounts for the
number of users shown on the Invoice, providing passwords for said users and
granting access to Postini’s filtering system through Internet connections
(“Activation”).
2. FEES
As further specified in the
preceding Invoice, BI101 shall charge Customer a (i) one time fee for
Activation (if applicable), (ii) monthly and/or annual fee for spooling data
storage capacity selected by Customer on the Invoice (beyond which messages may
bounce back) and (iii) the per email box unit fees based on the number of
destination email boxes for which Customer routed messages through Postini’s
system during the preceding calendar month. For each mailbox for which Reseller will be
routing email through Customer shall establish an email account in the
3. TERM AND TERMINATION
This Agreement will
begin on the date of your initial invoice and shall expire twelve (12) months
thereafter, unless terminated earlier by either party in accordance with this
Agreement. At the end of the Initial
Term, this Contract shall be renewed automatically for consecutive renewal
terms of 12 months unless terminated by either party by providing the other
party written notice at least thirty (30) days prior to end of the then-current
term.
Termination for cause can be
effected by either party’s written notice, effective upon receipt, if the other
party has failed to cure a material breach for thirty (30) consecutive days
after receiving a detailed written request to cure. If Customer terminates this
Agreement for cause in accordance with this Section 3, BI101 shall refund to
Customer any prepaid amounts as well as a prorated amount of fees for the
thirty (30) days immediately preceding the effective date of the termination.
4. CONFIDENTIALITY
BI101 and Customer both
acknowledge that in the course of this Agreement, either party may obtain
certain confidential and/or proprietary information. Each party hereby agrees
that all such information communicated to it by the other party, its
affiliates, or customers, as well as the terms and conditions of this Agreement
(albeit not its existence) shall be disclosed and used only for the purpose of
this Agreement, except with the prior written consent of the other party or as
necessary by reason of legal, accounting, or regulatory requirements beyond
either party's reasonable control. Customer grants BI101 the right to publicly
disclose Customer's use of Postini's services.
5. INDEMNITY
BI101, at its expense, shall
indemnify, defend and hold harmless Customer against any damages caused by (a)
a claim by a third party against Customer to the extent that the Services, or
any part thereof, infringe, or induce or contribute to the infringement of, any
intellectual property or proprietary rights or misappropriates any protected
trade secret, and (b) a breach of the confidentiality obligations set forth in
Section 4 of these Terms by BI101. BI101’s obligation under this Section 5 is
subject to the condition that Customer provides BI101 with (i) prompt written
notice of the claim, (ii) sole control over the defense or settlement, and
(iii) reasonable support and cooperation with regard to the defense.
6. LIMITATION OF LIABILITY
Neither party shall be
liable for special, incidental, consequential, punitive, or exemplary damages
even if it has been advised of the possibility of such damages. Except
regarding the indemnity obligations under Section 5, in no event shall either
party’s liability for damages exceed the amounts payable by Customer to BI101
during the twelve (12) month period preceding the causation of the damages.
Neither party shall be liable to the other pursuant to this Agreement for any
amounts representing loss of profits, business or data. The limitations in this
Section 6 shall apply to any type of liability including but not limited to
liability arising from contract, tort, statute or any other legal theory.
7. ASSIGNMENT
Either party may assign this
Agreement in its entirety, but not in parts, to its parent company, affiliate
or subsidiary, or in connection with a merger, consolidation, or sale or other
disposition of all or substantially all of its assets. Any other assignment
shall be null and void, except with the other party’s prior written consent.
This Agreement and all obligations shall be binding upon and inure to the
benefit of the parties’ successors and lawful assignees.
8. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement and any
controversies arising out of or in relation with this Agreement (“Disputes”)
shall be governed by
9. SEVERABILITY
If and to the extent any
provision of these Terms is held invalid or unenforceable in whole or in part
under applicable law, such provision or such portion thereof shall be
ineffective as to the jurisdiction in which it is invalid or unenforceable to
the extent of its invalidity or unenforceability and shall be deemed modified
to the extent necessary to conform to applicable law so as to give the maximum
effect to the intent of the parties. The invalidity or unenforceability of such
provision in that jurisdiction shall not in any way affect the validity or
enforceability of such provision or of any other provision of these Terms in
any other jurisdiction.
10. COUNTERPARTS
This Agreement may be
executed in one or more counterparts including facsimile copies, which when and
taken together upon proper delivery shall constitute a single instrument.
SERVICES SCHEDULE
POSTINI PERIMETER MANAGER
.
This Services Schedule
contains:
Services Description of Email Services
Service Level Agreements
SERVICES DESCRIPTION
Spam Filtering
Evaluates the components
of each message to determine if the message is spam, using a heuristics-based
anti-spam engine. Quarantines inbound
email messages that may be spam, and makes these messages accessible to the
individual user through the web-based
Real-Time Virus
Protection
·
Evaluates the components of each message to determine if the
message contains a virus using a heuristics-based virus engine.
·
Quarantines inbound email messages that may be infected with a
virus and makes these messages accessible to the individual user through the
Connection Manager with
Threat Detection and Blocking
·
Monitors SMTP traffic to identify patterns of behavior that are
associated with SMTP attacks, such as directory harvest attacks (DHA),
denial-ofservice (DoS) attacks and statistically significant spikes in spam or
virus activity, and automatically rejects such attacks.
Delivery Manager with
Throttling and Load Balancing
·
Regulates the delivery of inbound email messages across
destination servers regardless of operating system and/or geographic server
location.
·
Balances inbound email message load by automatically redirecting
delivery of email messages to fail-over resources in the event a destination server
becomes unavailable.
Event-Based Alerts
·
Monitors status of inbound and outbound email traffic and notifies
designated individuals within the organization by email, telephone or pager during
SMTP attacks and system outages.
Real-Time Monitoring and
Reports
·
Monitors status of inbound and outbound email messages and can
provide usage reports on an hourly, daily, or weekly basis, as specified by the
administrator.
·
Includes usage audit record for policy enforcement and capacity
planning.
·
Makes reports available through a web interface or for downloading
for further analysis and distribution by the administrator.
Inbound Content Filtering
·
Allows an organization to create and enforce email usage policies
for inbound email messages using flexible content filters based on sender and recipient
addresses, key words, and attachments.
·
Allows an organization to define content-based exceptions to spam
filters.
·
Allows an organization to monitor email usage through a log of
detailed filter activity.
Inbound Attachment
Filtering
·
Enables companies to block or re-route inbound email messages
containing unwanted email attachments.
·
Allows administrators to use productivity filters to create
inbound email policies based on attachment type, such as music, sound and movie
files.
·
Allows designated senders, such as the Customer.s designated
partners, customers, and associates, to bypass specified email policies through
an optional .approved sender list. feature.
Content and Transport
Heuristics
·
Content Heuristics are designed to identify common traits and
characteristics of the legitimate business email for specific industries and
job functions, which can reduce the possibility of falsely quarantining
legitimate email.
·
Transport Heuristics are designed to identify communication
networks by industry and job function and to authenticate inbound email from
these networks, which can reduce the possibility of falsely quarantining
legitimate email.
Quarantine Summary Email
(Sent to End Users)
·
Automatically alerts end users to the presence of messages in
their personal quarantine areas with a Quarantine Summary email.
Outbound Content
Filtering
·
Allows an organization to create and enforce email usage policies
for outbound email messages using flexible content filters based on sender and recipient
addresses, key words, and attachments.
Outbound Attachment
Filtering
·
Enables companies to block or re-route outbound email messages
containing large or harmful email attachments.
·
Allows administrators to use productivity filters to create outbound
email policies based on attachment type, such as music, sound and movie files.
Outbound Virus Blocking
·
Scans outbound email messages for virus and blocks these, which
can assist the Customer in protecting recipients of its email from viruses.
Outbound Compliance
Footer
·
Creates a standard organization-wide email compliance footer to be
automatically inserted into all outbound email messages.
Basic Transport Layer
Security
·
Basic Transport Layer Security allows inbound messages to the
Postini system and outbound messages from the Postini system to be encrypted with
the standard email encryption protocol TLS. In order for messages to be
encrypted, Customer is responsible for ensuring that the email servers that are
sending messages to the Postini system and receiving messages from the Postini
system have TLS capabilities enabled.
Directory Synchronization
(Directory Synchronization Activation Support may be purchased for an
additional fee)
·
Automatically synchronizes
Customer.s enterprise directory with Perimeter Manager.
Disaster Recovery
(Disaster Recovery Upgrade may be purchased for an additional fee)
·
Spools inbound email continuously in the event of an outage of
Customer.s network or servers for the period of time that is determined by the number
of Mailboxes/Units set forth in the Coverage Selection Sheet.
·
Automatically delivers spooled email messages once Customer.s mail
server(s) and connection have been reestablished, at a regulated rate to allow
new inbound messages to be delivered concurrently.
Standard Support
·
Automatic product upgrades and maintenance updates of the Services
at no additional charge.
·
Access to self-paced online training sessions designed to assist
Customer with learning about the Services.
·
Telephone support for routine cases is provided by Bi101’s
·
Express Support (may be
purchased for an additional fee)
All services listed above
under .Standard Support. plus:
·
Access to the Postini Knowledge Base located at
www.postini.com/support, which contains answers to commonly asked questions and
techniques for optimizing the Services. New articles will be added to the
Knowledge Base from time to time.
·
Access to the Postini Support Portal located at
www.postini.com/support, to report and resolve issues concerning the Services,
to receive news of upcoming releases, changes, future plans, and to view System
Status .traffic lights. that show current email delivery throughput and web performance.
·
Emergency telephone support available 24x7 for when Customer’s
network is not receiving any inbound email (and/or outbound email, if Customer is
utilizing Postini outbound filtering services).
·
Telephone support for routine cases is provided by Postini’s
·
States and
·
website at www.postini.com/support.
·
Calls are routed to Senior Support Engineers, with a high priority
status for quicker responses.
Premier Support (may be
purchased for an additional fee)
All services listed above
under .Express Support. plus:
·
A Technical Account Manager will be assigned to Customer who can
offer technical expertise, project planning services (subject to project limitations)
and support case tracking and escalation.
·
Total units of Premier Support purchased will determine the
maximum amount of time expended on average by the Technical Account Manager(s).
·
Customers with offices located outside of the
·
A secondary Technical Account Manager will be assigned if Customer
requires local support for any of their offices located outside the
·
secondary Technical Account Manager will be located in one of
Postini.s Customer Support Centers located in
SERVICE LEVEL AGREEMENTS
During the term of the Agreement,
Bi101 shall provide the following Service Level Agreements
The following provisions
shall apply to each
1. Force Majeure.
In no event shall Customer have any remedies under any
2. Reporting Process.
Customer must inform Bi101’s Customer Support Department in writing or by email
within 10 business days of the time it first believes that it is eligible to receive
a remedy under any one of the SLAs set forth below. Customer must also provide
to Bi101 a live copy of the applicable email with the original Postini headers
(complete and untampered with) for analysis. If a dispute arises with respect
to any
3. Remedy Cap. In
any given month, Customer shall in no event be entitled to receive more than
100% of its monthly fee for the Email Services pursuant to these SLAs.
99.999% Email Processing
Availability
1. Service Level
Agreement. The Email Services shall be operational at least 99.999% of the
time in any given month during the Term of the Contract. The .Operational
Percentage. means the percentage of the total time during any given month that
the Email Services are not subject to an Outage. An outage (.Outage.) means
that Postini fails to apply filtering in accordance with Customer.s
configuration selection. Outage does not include service suspension (i) for
reasons outside of Postini.s sphere of control (as described in Section 17 of
the Master Services Contract) or (ii) during times (v072007) A-3 US Services
Schedules of maintenance (as described below in this SLA). The .Outage
Percentage. means the total duration of an Outage during a given month divided
by the total time during such month.
2. Remedy. If the
Operational Percentage is less than 99.999%, and if Customer has fulfilled all
of its obligations under the Contract and this
3. Maintenance. To
ensure optimal performance of the Services, Postini reserves the right to
perform unscheduled emergency maintenance at anytime. Additionally, Postini reserves the right to
perform scheduled maintenance that is designed not to impact the Services at
any time. Postini will make
all reasonable attempts
to schedule maintenance events that are expected to have an impact on the
Services between 10:00 p.m. Pacific Time on Fridays and 12:00 p.m. Pacific Time
on Sundays.
Anti-Virus Filtering
1. Service Level
Agreement. The Email Services will detect and stop 100% of all Viruses (as
defined below) propagated by an inbound email to Customer that is subject to
the Email Services from creating an Infection (as defined below) of Customer.s
systems. For purposes of this
cycles on the infected
host, use the infected host to replicate itself to other hosts, or provide
control or access to any of the infected host.s system resources. For the
avoidance of doubt, a Virus does not include: (i) text messages that use
fraudulent claims to deceive the Customer and/or prompt the Customer to action
(such as phishing); (ii) a binary or executable code installed or run by the
end user that gathers information for sales and marketing purposes (such as
spyware); (iii) a virus that has been detected and has been cleaned by other
virus scanning products or (iv) an ineffective or inactive virus contained in a
bounced email.
2. Conditions. The
following conditions must be satisfied by Customer to be eligible to receive
the remedy specified in this
a. Postini.s anti-virus
technology is designed to detect and block or quarantine in the
attachment types. Postini
anti-virus technology must fail to work as designed for Customer to be eligible
to receive the remedy.
b. Customer must have enabled
full virus protection for all users to be eligible to receive the remedy.
Customer.s administrative settings must beconfigured with the maximum
Anti-Virus protection, including, if configurable, Postini.s Attachment Manager
to bounce Executables and Compressed Files as defined within the System Threats
category of Postini’s Attachment Manager, message fragment blocking, Connection
Manager, Virus Outbreak configuration set to .Very High., user-enabled virus
cleaning and non-account Virus bouncing enabled for allorganizations in a
Customer account. Use of Postini.s .Message Header Tagging. feature will result
in Customer forfeiting its right to receive a remedy.
c. A Virus must pass
through the filtering technology of the Email Services and be received by one
of the Customer.s end users to qualify for the remedy set forth below.
Virus-infected messages that are quarantined by the Email Services, but are
subsequently delivered to the end user or administrator by such end user or
administrator are not covered by this
protected, encrypted or
otherwise under the end user.s control are not covered by this
3. Remedy. If
Customer experiences one or more Infections in a calendar month, and if
Customer has fulfilled all of its obligations under the Contract and this SLA,
Customer shall have the following sole and exclusive remedy: Bi101 shall credit
Customer in an amount equal to 100% of the monthly charge for its Anti-Virus
protection services (which is currently equal to 33% of the monthly charge for
the Email Services). Only one claim per calendar month may be made under this
4. Exceptions. In
the event that Postini detects but does not stop a Virus-infected email
filtered by the Email Services, Postini will promptly notify the Customer and
provide sufficient information to enable the Customer to identify and delete
the Virus-infected email. If such a notification results in the prevention of
an Infection, Customer shall not be eligible for the remedy set forth in this
SERVICES SCHEDULE:
POSTINI PERIMETER MANAGER FOR INSTANT MESSAGING
This Services Schedule
contains:
·
Services Description of IM Services
Services Description. All filtering and
management services require use of the Services in .Native. mode, which is
defined as using Instant Messaging (.IM.) with a supported client, distributed
from AOL Instant Messenger, MSN Messenger Service and/or Yahoo! Messenger
Service, over the certified
ports.
IM Threat Protection
·
Identifies and blocks known IM security threats and exploits based
on a threat database published by Postini.s IM service provider.
·
Automatically polls at least once per minute Postini.s IM service
provider for updates to the threat database of blacklisted content (such as
bogus and malicious URLs and known spammer screen names).
·
Blocks IM messages that may be spam, viruses, trojans or worms and
replies to the sender with a warning that their message has been blocked.
IM Screen Name Registry
·
Requires each end user to register its screen names for each IM
service with the Service in order to continue to use IM.
·
Interactive Screen Name Registration allows each user to link its
screen name to its email address via its IM client.
·
Batch commands provide designated administrators the ability to
add screen names and bypass Interactive Screen Name Registration.
·
Inbound IM Content
Filtering
·
Allows an organization to create and enforce IM usage policies for
inbound IM messages using flexible content filters based on key words and sender
screen name.
Outbound IM Content
Filtering
·
Allows an organization to create and enforce IM usage policies for
outbound IM messages using flexible content filters based on key words and sender
screen name.
IM Usage Reporting
·
Provides reports into daily IM traffic patterns across the
organization.
·
Includes reports for inbound and outbound traffic by protocol and
user. Statistics include volume metrics for conversations, messages, infected messages,
and blocked content.
·
Makes reports available through a web interface or for downloading
for further analysis and distribution by the administrator.
IM File Transfer Blocking
·
Can limit distribution of Customer information by blocking
attempted file transfers via AOL Instant Messenger and MSN Messenger Service,
where such transfer is attempted in Native mode. Senders and recipients will be
notified when file transfers are blocked. Note that this feature is not available
with Yahoo! Messenger 7.5 client.
SERVICES SCHEDULE:
POSTINI ARCHIVE MANAGER
This Services Schedule
contains:
·
Services Description of Archiving Services
Services Description.
·
Available in Basic, Standard or Professional editions.
·
Captures designated messages based on real-time processing or via
the journaling or equivalent MTA interface
·
Creates a searchable index of message text.
·
Stores index data and message data across multiple, geographically
separated storage servers. Immutable storage is available with Professional edition.
·
Allows authorized individuals archive search capability.
Individual access to Personal Archive is available with Standard and
Professional editions.
·
Enables management of data within the archive, including
retaining, deleting or exporting.
·
Provides management reports on archive consumption and message
processing activity. Audit logs for reporting on activity within archive is available
with Standard and Professional editions.
·
Messages shall be retained for up to the period set forth in the
Coverage Selection Sheet, provided that Customer renews the Archiving Services with
Bi101 for each year of such Retention Period. The Retention Period shall apply
to all data archived under the Archiving Services. Failure to renew the
Archiving Services during the Retention Period shall terminate Bi101.s
obligation to retain any of Customer.s data or indexes. Following such an
event, Postini shall, at Customer.s election, (i) delete Customer.s data (at no
charge), (ii) provide an offline copy via hard disk media (at Bi101.s
then-current rates for such) or (iii) extend the period for Customer to access
such data (at Bi101.s then-current rates for such).
SERVICES SCHEDULE:
POSTINI ENCRYPTION MANAGER
This Services Schedule
contains:
·
Services Description of Encryption Services
Services Description
Policy Enforced TLS (if
selected in the Coverage Selection Sheet)
·
Domain configurable SMTP session-level protection with industry-standard,
server-to-server transport layer security (TLS). Postini integrates strong TLS
encryption with policy-based management so Customer has control over which
messages are delivered to mandatory TLS recipients.
Message Security (if
selected in the Coverage Selection Sheet)
·
Messages designated for encryption are posted to a secure web
portal a browser-based email client for those recipients that do not have the capability
to decrypt a message. The intended recipient of an encrypted message from
Customer will receive an email from Postini in clear text, directing them to a
specific URL where they will be able to open such encrypted message(s).
Additionally, the browser tool also allows the recipientto send encrypted
messages over the web-based mail client.
Inbox Delivery (if
selected in the Coverage Selection Sheet)
·
Messages designated for encryption are encrypted and delivered to
the intended recipients email account. The intended recipient of an encrypted message
will be able to decrypt the message on their desktop environment. Additionally,
the encrypted message provides the recipient the capability to securely respond
to the encrypted email.
Custom Portal (may be
purchased with Message Security or Inbox Delivery for an additional fee, if
selected in the Coverage Selection Sheet)
·
The secure portal can be custom branded to include the Customer.s
branding and customer support information.