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.
1. Definitions.
“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 85 South Mall,
Cork, T12 A3XN, Ireland; or (iii) 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, Throughput, Users, or other license metrics
as set forth in the Order or in the Solution Rider.
“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.
“Solution Rider” means the then-current Forcepoint Solution Rider, which can be found at:
Solution Rider.
“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.
“Throughput” means the maximum authorized number of gigabytes (GB) of data that may be sent and
received through the Cloud Services per calendar month, which are set forth in an Order, plus any additional GBs
of Permitted Capacity that has been purchased pursuant to an Order, in each case pro-rated for any partial month.
“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, the applicable terms and conditions of the Solution Rider,
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 commercially 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.
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; (iv) comply with the applicable terms contained in the Solution Rider; and (v) 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 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 or in the Solution Rider;
(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.
15. Export.
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.
16. Verification.
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. General.
17.1 For the purposes of customer service, technical support, and as a means of facilitating interactions with
its end-users, Forcepoint may periodically send Subscriber messages of an informational or advertising nature
via email and provide account information to related third parties (e.g. Subscriber’s reseller). Information
will be processed by Forcepoint in accordance with the Privacy Policy and applicable data privacy laws.
Subscriber may at any time update its communications preferences on Forcepoint.com or by sending an email to
privacy@forcepoint.com. Subscriber acknowledges and agrees that if
it chooses not to receive informational or advertising messages, then it will not receive Forcepoint emails
concerning upgrades and enhancements to Products. However, Forcepoint may still send emails of a technical
nature. Forcepoint may use non-identifying and aggregate usage and statistical information collected in relation
to Subscribers’ and its users’ use of the Products for purposes outside of the Agreement. Subscriber
acknowledges that Forcepoint may use Subscriber's company name only in a general list of Forcepoint customers.
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 or inconsistency between the terms of this Agreement, the Solution Rider, and the terms
of an Order, the following descending order of precedence applies: (a) the Solution Rider, (b) this Agreement, and
(c) the Order.
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