Valimail Platform Services Agreement

BY ACCEPTING AN ORDER FORM OR CLICKING “CONFIRM PURCHASE” OR BY OTHERWISE ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE PLATFORM SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE USE ANY OF THE PLATFORM SERVICES.

This Platform Services Agreement (“Agreement”) is an agreement by and between Valimail Inc., a Delaware corporation (“Valimail”) and the customer accessing, downloading, or using the Platform Services (“Customer”), as follows:

1. DEFINITIONS
* “Authorized User” means an individual Customer employee or agent who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
* “Customer Data” means user account information or information provided by Customer or its Authorized Users in the course of accessing and using the Platform Services.
* “Documentation” means the user documentation for a Platform Service made available to Customer, as revised from time to time.
* “Order Form” means Valimail’s online or written order form or account setup form, or a Partner’s online or written order form, or a Customer or Partner’s purchase order, in each case as submitted by Customer and/or Partner (as applicable) and accepted by Valimail, that specifies the Platform Services being selected, the subscription period, fees payable, and other commercial terms, and which is governed by this Agreement.
* “Partner” means a Valimail authorized reseller of the Platform Services.
* “Platform Service(s)” means the web-based service(s) to which Customer has a subscription, as specified in the Order Form, that are facilitated by Valimail’s cloud platform.
* “Exhibit” means an exhibit attached to this Agreement (if any), setting forth additional or modified terms applicable to a specific Platform Service.
* “Valimail Technical Data” means the aggregate, transactional, and analytic data used by the Platform Services which is anonymized and generated for analytics purposes.

2. SUBSCRIPTION SERVICES
* Authorization. Subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, Valimail will provide Customer’s Authorized Users with access to and use of the Platform Services, during Customer’s subscription period set forth in the applicable Order Form (and, if applicable, any paid-up Renewals under Section 5.1), solely for Customer’s internal business purposes in accordance with the relevant Documentation.
* Usage Limits. The use of the Platform Services is further subject to the usage limitations indicated in the applicable Order Form or in the Documentation for such Platform Services.
* Customer Responsibilities. Customer is responsible for: (a) maintaining the confidentiality of any user IDs, passwords and other credentials associated with Customer’s Platform Services account, (b) all activities that occur with respect to Customer’s account, (c) ensuring that Customer’s and Authorized Users’ use of the Platform Services is in compliance with this Agreement, and (d) any Customer Data. In order to enable the function of the Platform Services, Customer is also responsible for modifying the DNS records, granting the Platform Services email service API access, or modifying other necessary settings in Customer systems, as outlined in the relevant Documentation, and for restoring those records or settings to their original state at the end of Customer’s subscription.
* Restrictions. Customer is not permitted to, and will not knowingly allow others to: (a) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) provide any third parties with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (c) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (d) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Platform Services; (e) access the Platform Services via any bot, web crawler or non-human user; (f) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for any other benchmarking or competitive purposes; or (g) monitor or test the availability, performance or functionality of the Platform Services other than through the user interfaces of the Platform Services or other functionality provided by Valimail expressly for such purposes in connection with Customer’s use of the Platform Services.
* Support and Maintenance. Valimail will provide: (a) maintenance consisting of access to new features of the Platform Services to which Customer subscribes (but not new products or services) or performance improvements in the Platform Services if and when Valimail makes any such features or improvements generally available, at no additional charge, to the subscriber base for the relevant Platform Service(s), and (b) technical support consisting of telephone or email assistance.

3. PLATFORM AND DATA SECURITY
* Valimail employs commercially reasonable environmental, safety and facility procedures, data security procedures and other safeguards to protect against the unauthorized access, use, destruction, corruption, loss or alteration of the Platform Services and any Customer Data stored on Valimail’s servers. To the extent Valimail processes any personal identifiable information contained in Customer Data during the performance of the Platform Services, the terms of the Data Processing Addendum at https://www.valimail.com/wp-content/uploads/Valimail-DPA.pdf (“DPA”) shall apply, which is hereby incorporated by reference.

4. TERM AND TERMINATION
* Duration and Renewal. Customer’s subscription for the Platform Services will remain in effect throughout the subscription term specified in the Order Form (unless terminated as set forth below). Except as otherwise specified in the Order Form, Customer’s subscription to the Platform Services will automatically renew for successive one-year periods (each, a “Renewal”) unless either party gives the other party written notice of non-renewal at least 30 days in advance. For purposes of providing the aforementioned notice, notice provided via email to support@valimail.com, with finance@valimail.com copied, will suffice. This Agreement will automatically expire at the end of the last of Customer’s subscriptions to expire.
* Termination. A party may terminate this Agreement for a material breach by the other party that remains uncured more than 30 days after receiving written notice of the breach. In addition, Valimail may suspend the provision of Platform Services ten (10) business days following Customer’s receipt of written notice that it is late in paying an invoice (which notice shall also serve as notice that Customer is in material breach of this Agreement). All Order Forms and Customer’s subscription(s) for all Platform Services will automatically terminate upon any termination of this Agreement.
* Survival. The following provisions will survive expiration or termination of this Agreement: Section 1, Section 2.4, Section 4.3, Section 5, (to the extent of any outstanding payments), Sections 6-10, and Section 12.

5. FEES AND PAYMENT
* Fees. In consideration for Valimail providing the Platform Services, Customer will pay to Valimail, or to Partner, if the Partner is placing the order with Valimail, the corresponding fees set forth in the Order Form.  If Customer obtains access to the Platform Services through a Partner, the Customer acknowledges that it will pay Partner all fees charged by such Partner for access to the Platform Services in accordance with the applicable Order Form. Customer further agrees that Valimail may suspend or terminate any Customer account and/or any Authorized User’s right to receive the Platform Services in the event of non-payment of the applicable fees whether due to Valimail or Partner.
* Renewal Fees. For each subscription Renewal, Customer will pay for the Platform Services consistent with the subscription-fee rates specified in the Order Form or, if applicable, such other rates as Valimail may establish by written notice to Customer at least 60 days prior to the first day of the Renewal, email to either the Primary Contact or Billing Contact listed on the Order Form to suffice. If the use of the Platform Services under Customer’s account exceeds any usage limitations that apply to Customer’s subscription, then in addition to in-term overage charges (and without limiting Valimail’s other remedies) the Renewal fee will be increased to cover the higher level of usage at Valimail’s then-current rates.
* Invoices; Payment. Unless otherwise agreed in an applicable Order Form, Valimail or Partner, as applicable, will invoice Customer in advance at the beginning of the subscription period and each Renewal. Each invoice is due and payable 30 days following the invoice date.  Overdue payments will accrue interest at the rate of 1.5% per month, but in no event greater than the highest rate of interest allowed by law.
* Taxes.  The fees specified in this Agreement and each Order Form are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Valimail’s U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.

6. OWNERSHIP
As between Valimail and Customer: (a) the Platform Services, Valimail Technical Data, and all software, data and technologies embodied in or used to provide the Platform Service, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Valimail; and (b) the Customer Data and all intellectual property rights therein or relating thereto, are and shall remain the Customer’s exclusive property. Valimail hereby grants Customer a nonexclusive, perpetual, worldwide license to reproduce and use, solely for Customer’s internal business purposes, the Valimail Technical Data made available to Customer through the Platform Services.  Valimail reserves all other rights.

7. CONFIDENTIALITY
* Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential, which includes Customer Data. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
* Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (c) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.

8. DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE PLATFORM SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.  VALIMAIL DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

9. INDEMNIFICATION
* By Valimail. Valimail will defend Customer against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer to the extent based upon an allegation that the Platform Services, as furnished by Valimail hereunder and used by Customer within the scope of this Agreement, misappropriates any third party trade secret or infringes any third party’s copyright or U.S. patent or trademark rights, and will indemnify and hold Customer harmless against damages awarded by a court or settlements agreed by Valimail in connection with such Claims. THE FOREGOING STATES THE ENTIRE OBLIGATION OF VALIMAIL WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Valimail shall have no liability under this Section 9.1 to the extent that any Claims (a) are presented to Valimail by Customer more than two (2) years after termination or expiration of the Order Form for the subject Platform Service; (b) are based on any combination of the Platform Services with products, services, methods, content or other elements not furnished by Valimail (unless such combination is necessary for the intended use of the Platform Services); or (c) are based on any use of the Platform Services in a manner that violates this Agreement or the instructions given to Customer by Valimail.
* Mitigation Measures. In the event of any Claim or potential Claim covered by Section 9.1, Valimail may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer’s use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Valimail will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
* Indemnification by Customer. Customer will defend Valimail against any Claims arising from or related to any Customer Data or Customer’s use of the Platform Services in violation of this Agreement or the applicable Documentation, and will indemnify and hold Valimail harmless against damages awarded by a court or settlements agreed by Customer in connection with such Claims.
* Procedures. Each party’s indemnity obligations are subject to the following: (a) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (b) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (c) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.

10. LIMITATION OF LIABILITY
* Waiver of Certain Damages. EXCEPT FOR DAMAGES PAYABLE TO THIRD PARTIES UNDER THE INDEMNIFICATION OBLIGATIONS OF SECTION 9 OR DAMAGES RESULTING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
* Liability. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR DAMAGES RESULTING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 7, VALIMAIL’S TOTAL LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO VALIMAIL UNDER THIS AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
* Liability Cap. VALIMAIL’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR DAMAGES RESULTING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 7 SHALL NOT EXCEED THE LESSER OF ONE MILLION DOLLARS ($1,000,000) OR FIVE (5) TIMES THE AMOUNTS PAID TO VALIMAIL IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

11. PUBLICITY
* Identification of Customer. Upon Customer’s approval, Valimail may identify Customer, by name and by logo, as a customer of the Platform Services on Valimail’s website and other marketing materials.
* Case Study. Upon Customer’s approval, Valimail may develop and publish a case study for public dissemination and marketing use by Valimail describing the benefits Customer has derived from the Platform Services. Customer will reasonably cooperate with such case study.

12. MISCELLANEOUS
* Assignment. Neither party may assign this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer this Agreement together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (a) to any entity controlling, controlled by, or under common control with, the transferring party, where “control” means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (b) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets.  Any attempt to assign this Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
* Status of Parties. Neither party has any power or authority to assume or create any obligation or responsibility on behalf of the other party. This Agreement may not be construed to create or imply any partnership, agency or joint venture between the parties.  There are no third party beneficiaries to this Agreement.
* Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control, if the affected party makes reasonable efforts to perform; provided, however, that this provision does not relieve either party of its obligation to make payments then owing.
* Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Platform Services, nor any direct product thereof, are: (a) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (b) used for any purposes prohibited by the such export laws and regulations.
* Government Rights. If Customer is the U.S. government or any agency or other division thereof, Valimail’s services are furnished under this Agreement as a “commercial item,” as that term is defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to the services (and to any associated software, technical data or other materials) are limited to those expressly granted in this Agreement.
* Severability. If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
* Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
* Notices. All notices permitted or required under this Agreement shall be in writing (which may include notice by email), will reference this Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by email delivery (confirmed by a non-automated reply), to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt. Notices regarding renewals must be sent to customersuccess@valimail.com and must include a copy to finance@valimail.com.
* Governing Law. This Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.  In any action or proceeding arising under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.  The parties acknowledge and agree that any unauthorized disclosure or use of a party’s confidential information or intellectual property would cause such party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies.
* Entire Agreement. Terms and conditions set forth in any purchase order or other document provided by Customer to Valimail that differ from, conflict with, or are not included in this Agreement shall not apply unless specifically accepted by in writing by an officer of Valimail. This Agreement and its Exhibits, together with the Order Form(s), constitute the entire agreement, and supersedes all prior or contemporaneous oral or written agreements, regarding the subject matter hereof. Valimail reserves the right to change or supplement the terms of this Agreement from time to time at its sole discretion. Valimail will exercise commercially reasonable business efforts to provide notice to Customer of any material changes to this Agreement.  Any other terms or conditions (whether online or otherwise) provided or referenced in any Order Form, purchase order or other written instrument, whether by Customer or Partner or a third party shall be null and void.
EXHIBIT – Valimail Enforce Exhibit
1. Definitions. Any capitalized terms not defined in this Exhibit shall have the meaning set forth in the Agreement. Except to the extent differentiated in this Exhibit, all terms applicable to the Platform Services in the Agreement shall apply to the Enforce Service.
1. “Enforce Service” means Valimail’s email security anti-impersonation Platform Service, including Valimail’s implementation of the DMARC email validation standard.
2. “Enforce Technical Data” means the Valimail Technical Data for the Enforce Service, consisting primarily of aggregate report(s) generated by recipient email gateways, which reports do not contain information concerning the email payload (e.g., email content, sender, subject, recipient) and data derived from analysis of internet traffic and other public sources.
2. DNS Records. The Enforce Service requires the insertion of a text record into Customer’s DNS records to enable Customer to utilize the Enforce Service to implement DMARC-related functions.  Customer may disable the Enforce Service for any Customer domains at any time by removal of such text record from the DNS records of the relevant domains, provided Customer acknowledges Valimail will not be liable for any resulting inability to provide the Enforce Service.  The Enforce Service does not give or require Customer to give Valimail access to any Customer systems.
3. Coverage. For the purpose of calculating any limitations on the use of the Enforce Service, every domain for which the DNS DMARC TXT record “rua” parameter indicates Valimail as a recipient shall be deemed to be covered by the Enforce Service, regardless of the domain status in the Enforce Service.
4. Domain Onboarding Assistance. For 180 days from the start of the initial subscription term for the Enforce Service (the “Onboarding Period”), Valimail provides complimentary domain onboarding assistance for the emailing domains identified in the relevant Order Form, consisting of:
* expert advice on, troubleshooting, and verifying proper DNS configuration
* identifying email sending services
* configuring SPF and DKIM for authorized sending services
* working directly with email sending service vendors on configuration issues
* troubleshooting issues with email sending service configurations
* managing domain DMARC policies
* providing recommendations and best practices

Valimail relies on Customer’s active participation to complete the onboarding of each domain.  If, within the Onboarding Period the Customer has not, in Valimail’s sole judgement, provided Valimail with sufficient information, cooperation and approvals to complete onboarding to “enforcement” status of any of the domains identified above within the Onboarding Period, then within ten (10) business days of the end of the Onboarding Period, Customer must elect by written notice to Valimail (email to suffice) to either: (a) continue Domain Onboarding Assistance via a paid support services engagement, or (b) approve moving its domains to “enforcement” status, .  If Customer does not make either election within such election period, Customer shall be deemed to have elected to move its domains to “enforcement” status.
EXHIBIT – Valimail Defend Exhibit
5. Definitions. Any capitalized terms not defined in this Exhibit shall have the meaning set forth in the Agreement. Except to the extent differentiated in this Exhibit, all terms applicable to the Platform Services in the Agreement shall apply to the Defend Service.
1. “Trusted Domains Technical Data” means the Valimail Technical Data for the Defend Service, including aggregate email disposition report(s) in the general form of an aggregate DMARC report, generated by Valimail through analysis of the email header information received from Customer, which reports do not contain information concerning the email payload (e.g., email content, sender, subject, recipient).
2. “Trusted Domains and Trusted Contacts Customer Data” means the following Confidential Customer Data: (i) the API key necessary to allow the Defend Service to access the Customer Email Service; and (ii) all email addresses and other email header information (expressly excluding the subject) collected by the Defend Service while accessing the Customer Email Service.
3. “Defend Service” means Valimail’s domain security anti-impersonation Platform Service. Except to the extent differentiated in this Agreement, all terms applicable to the Platform Services in the Agreement shall apply to the Defend Service.
4. “Customer Email Service” means the Office365 Outlook or Google GSuite email service hosted by or on behalf of Customer.
6. API Integration. The Defend Service requires API access to the Customer Email Service.  Customer acknowledges that it must enable such API access, and provide Valimail with an API key for the Customer Email Service in order for the Defend Service to operate.  Customer may revoke Valimail’s API access at any time using the interface provided by the Customer Email Service, provided that Customer acknowledges that Valimail will not be liable for any resulting inability to provide the Defend Service and no refunds will be provided in the event of such revocation by Customer.  The Defend Service only accesses the Customer Email Service for the purpose of providing the Defend Service, and will not access any functions or elements of the Customer Email Service or Customer Data within the Customer Email Service except as set forth in the Defend Service Documentation.
7. Data Handling:
1. Valimail will use reasonable security efforts as set forth in the Agreement to protect the Trusted Domains and Trusted Customer Data from unauthorized access or use. Without limiting the generality of the foregoing: (i) Valimail will store Trusted Domains and Trusted Contacts Customer Data in an encrypted repository, and (ii) before storage of “from” or “sender” email addresses, Valimail irretrievably obfuscates (by a one-way hash function) the portion of the address before the “@” symbol.
2. Customer agrees that Valimail may retain and use as Valimail Technical Data: (i) the Trusted Domains Technical Data and (ii) the list of domain names collected by the Defend Service (whether from the Customer Email Service or any other source); provided that nothing in the Agreement or this Exhibit purports to transfer or create any property interest in any domain name as a domain name.