CUSTOMER LICENSE AGREEMENT

THIS LICENSE AGREEMENT ('Agreement') governs the use of the object code version of the computer software, documentation and materials provided by COMMTOUCH SOFTWARE LTD. ('Commtouch') accompanying this Agreement or otherwise provided in connection herewith (collectively "Software"), by a customer, including individual(s) acting on behalf thereof, ('Customer') that has received authorization to use the Software, as provided below, and has clicked on the 'I accept the terms of the license agreement' button at the end of this Agreement.

IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST CLICK ON THE 'I do not accept the terms of the license agreement" BUTTON BELOW AND YOU MUST NOT USE THE SOFTWARE. COMMTOUCH LICENSES THE SOFTWARE TO YOU UPON THE EXPRESS CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT.  PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE.

YOUR CLICKING ON THE 'I accept the terms of the license agreement' BUTTON CONSTITUTES YOUR REPRESENTATION TO COMMTOUCH THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND YOU HAVE OBTAINED PERMISSION FROM YOUR EMPLOYER THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT, AND THAT YOU AGREE WITH THE TERMS OF THE AGREEMENT.  COMMTOUCH MAY MODIFY THE TERMS OF THIS AGREEMENT FROM TIME TO TIME, AND POST THOSE MODIFICATIONS ON COMMTOUCH'S INTERNET WEBSITE OR OTHERWISE PROVIDE APPROPRIATE WRITTEN NOTICE THEREOF.  YOUR CONTINUED USE OF THE SOFTWARE AFTER ANY SUCH MODIFICATION CONSTITUTES YOUR ACCEPTANCE OF THE MODIFIED AGREEMENT.


1. LICENSE AND USE RESTRICTIONS.

    A.  Use of Software.  Subject to all other terms of this Agreement, Commtouch hereby grants to Customer a non-exclusive, non-transferable, revocable license (in accordance with the terms below), without the right to grant sublicenses, (1) copy of the Software and to use such copy of the Software solely as an Outbound Spam Protection solution  for the Customer's internal email messaging service.  The usage of the Software is specifically limited to the number of servers for which the Software is licensed by Customer from Commtouch or a qualified reseller thereof. The Software is intended to run in coordination with certain CommtouchDetectionCenter services ('Services') purchased by the Customer from Commtouch or an authorized reseller thereof.  In accepting this Agreement, Customer hereby grants Commtouch a royalty-free, paid up, worldwide, non-exclusive license to access certain email information, including email header detail necessary in the performance of the Software and Commtouch's obligations in providing the Services, subject only to Commtouch's then-current privacy policy. Customer warrants that it shall at all times comply with all applicable laws and regulations in utilizing the Software, and shall only utilize the Software for its intended purpose, that is to endeavor to detect and prevent the circulation of spam and/or malware infected email from the Customer's organization for the limited number of serversfor which the Software is licensed. Customer shall fully indemnify, defend and hold harmless Commtouch, its officers, employees, directors, shareholders, agents and affiliates from and against any and all losses, liabilities or claims related to any breach of this Agreement, including without limitation the foregoing warranties, and such obligation shall survive any expiration or termination of this Agreement. Commtouch hereby reserves all rights not expressly granted to Customer herein.
       
       B.  Restrictions. Without derogating from other restrictive provisions contained in this Agreement, Customer shall have no right to copy, in whole or in part, the Software.  In addition to any other rights that Commtouch may have, any copy of the Software made by Customer in contravention to the above is the exclusive property of Commtouch.  Customer agrees that only Commtouch shall have the right to alter, maintain, enhance or otherwise modify the Software, and that Customer shall not remove any notices or markings on the Software. Under no circumstances shall Customer, either itself or through any third party, disassemble, decompile, reverse engineer or otherwise attempt to learn or disclose the trade secrets contained in the Software. Customer further agrees not to transfer, assign, sublicense or otherwise provide or disclose the Software to any third party, both during and after the term of this Agreement, without the prior written consent of Commtouch (even if purported to be as a matter of law or by way of merger or acquisition).

       C.  Termination.  This Agreement, including without limitation the foregoing license, shall terminate immediately and without notice for any breach of this Agreement by Customer.  Furthermore, Commtouch may terminate this Agreement at any time upon a failure by Customer to pay any fees associated with the usage of the Software and/or Services, or if Customer, in utilizing the Software, exceeds the number of serversfor which it has licensed the Software.  Upon any such termination, the license granted herein shall automatically be revoked; Customer shall immediately destroy or delete any and all Software and promptly confirm to Commtouch in writing that Customer has done so.  Commtouch shall have no responsibility for any email messages stored in the Software prior to destruction or deletion, and Customer is encouraged to remove email messages that it desires to retain from the Software prior to deletion or destruction of the Software. 

       D.  Ownership.  The Software is and shall remain the sole and exclusive confidential and proprietary property of Commtouch, subject to protection under the intellectual property laws of the United States and those throughout the world.  Nothing in this Agreement shall be construed as conferring any license under any of Commtouch's intellectual property rights, whether by estoppel, implication, or otherwise, except for those licenses expressly granted herein. Such rights may include, but are not limited to, patent, trademark, design, copyright and trade secret rights.

2.         THE SOFTWARE IS PROVIDED ON AN 'AS IS' BASIS, WITHOUT ANY WARRANTY AS TO THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE.  ALL EXPRESS, IMPLIED OR STATUTORY CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ARE DISCLAIMED.

3.         LIMITATION OF LIABILITY.
IN AGREEING TO USE THE SOFTWARE AND SERVICES, CUSTOMER AFFIRMS ITS UNDERSTANDING THAT CERTAIN TYPES OF MALWARE AND SPAM MAY CIRCUMVENT THE PROTECTIVE MECHANISMS OF THE SOFTWARE AND SERVICES, AND THAT CUSTOMERS' DATA AND SYSTEMS AND REPUTATION, WITHOUT ADDITIONAL EMAIL DEFENSE PROTECTIONS, COULD BE COMPROMISED. CUSTOMER THEREFORE AGREES THAT COMMTOUCH SHALL HAVE NO OBLIGATION FOR ANY LOSS OF OR DAMAGE TO ANY INFORMATION OR MATERIALS OR REPUTATION, INCLUDING WITHOUT LIMITATION EMAIL MESSAGES IDENTIFIED BY THE SOFTWARE AND/OR SERVICES AS 'SPAM' OR CONFIDENTIAL DATA COMPROMISED BY UNDETECTED MALWARE.  WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, CUSTOMER AGREES THAT COMMTOUCH SHALL NOT BE RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSMISSION(S) ENTERING CUSTOMER'S ORGANIZATION THROUGH THE SOFTWARE AND/OR SERVICES, ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSIONS, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR USE OF RECORD. 

CUSTOMER ACKNOWLEDGES AND UNDERSTANDS COMMTOUCH'S COMMITMENT  NOT TO ENGAGE IN MONITORING OF EMAIL CONTENT AND NOT TO MANUALLY ACCESS EMAIL CONTENT;  AND THAT THE IDENTIFICATION OF CERTAIN CHARACTERISTICS OF EMAIL BY THE SOFTWARE SHALL BE  PERFORMED BY WAY OF AUTOMATED PROCESSES, ALL IN ACCORDANCE WITH THE SPECIFICATIONS OF THE SOFTWARE AND SERVICES. CUSTOMER FURTHER ACKNOWLEDGES COMMTOUCH'S COMMITMENT NOT TO PERFORM ANY EDITORIAL ALTERATIONS ON ANY MESSAGES SENT THROUGH THE SOFTWARE OR THE SERVICES AND THAT COMMTOUCH SHALL NOT BE LIABLE FOR THE CONTENT OF ANY EMAIL. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMMTOUCH NEITHER ENDORSES THE CONTENTS OF ANY COMMUNICATIONS NOR ASSUMES RESPONSIBILITY FOR ANY THREATENING, LIBELOUS, OBSCENE, HARASSING OR OFFENSIVE MATERIAL CONTAINED THEREIN, ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ARISING THEREFROM OR ANY CRIME FACILITATED THEREBY.
 
CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT COMMTOUCH SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE OR SERVICES, REGARDLESS OF WHETHER ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE LIABILITY OF COMMTOUCH HEREUNDER EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500), REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT OR OTHERWISE, AND THE PRESENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMITATION.  CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE A MATERIAL TERM OF THIS AGREEMENT, AND THAT COMMTOUCH WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.

4.         GENERAL.
Any action related to this Agreement shall be governed by the substantive laws of the State of California, without regard to conflicts of law principles.  The State and Federal courts located in Santa Clara County, California, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts.  Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole in part, by Customer without the prior, written permission of Commtouch.  Any purported assignment without such permission shall be void.  Any waiver of any rights of Commtouch under this Agreement must be in writing, signed by Commtouch, and any such waiver shall not operate as a waiver of any future breach of this Agreement.  In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced.  The parties agree that any breach or threatened breach of this Agreement by Customer is likely to cause Commtouch damage that is not fully reparable by payment of damages, and further agree that in such case Commtouch shall be entitled to seek and obtain injunctive or other equitable relief to protect its rights hereunder.  This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous, conflicting or additional communications, negotiations or agreements.

Copyright (C) Commtouch Software Ltd. 2012. All Rights Reserved.