Quick Links:

Resources:

Clearswift Standard Support Agreement

MIMEsweeper Products
Issue Date: 10/4/06

THIS CLEARSWIFT STANDARD SUPPORT AGREEMENT SETS OUT THE TERMS AND CONDITIONS THAT RELATE TO THE PROVISION OF THE SERVICES BY THE CLEARSWIFT GROUP COMPANY INDICATED ON THE SUPPORT CERTIFICATE (THE “SERVICE PROVIDER”). THE SERVICES SHALL BE LIIMITED TO THE MIMESWEEPER SOFTWARE INDICATED ON THE SUPPORT CERTIFICATE AND ANY UPGRADES AND/OR PATCHES PROVIDED IN ACCORDANCE WITH THIS AGREEMENT (THE “SOFTWARE”).

FROM THE EFFECTIVE DATE, SERVICE PROVIDER SHALL PROVIDE THE SERVICES IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT BELOW TO THE CUSTOMER INDICATED ON THE RELEVANT INVOICE (THE “CUSTOMER”). SERVICE PROVIDER RESERVES THE RIGHT TO AMEND THIS CLEARSWIFT STANDARD SUPPORT AGREEMENT FROM TIME TO TIME. ANY REVISIONS SHALL BE INDICATED BY A CHANGE IN THE ISSUE DATE AND THE VERSIONS CONTAINING THE MOST RECENT ISSUE DATE SHALL BE THE THEN CURRENT CLEARSWIFT STANDARD SUPPORT AGREEMENT. ANY REVISED CLEARSWIFT STANDARD SUPPORT AGREEMENT SHALL BECOME EFFECTIVE FROM THE DATE WHEN CUSTOMER COMMENCES OR RENEWS THIS CLEARSWIFT STANDARD SUPPORT AGREEMENT IN ACCORDANCE WITH THE TERMS BELOW. THE SUPPORT CERTIFICATE SHALL BE THE DOCUMENT ISSUED BY CLEARSWIFT REGARDING THE SERVICES TO BE PROVIDED TO CUSTOMER.

THE ISSUING OF A PURCHASE ORDER BY CUSTOMER FOR THE SERVICES SHALL INDICATE CUSTOMER’S ACCEPTANCE OF THIS CLEARSWIFT STANDARD SUPPORT AGREEMENT.


The parties hereby agree that:

1 DEFINITIONS
In this Agreement the following capitalised words and phrases shall mean:
Agreement: means this Clearswift Standard Support Agreement, the Support Certificate, the Service Description and any schedules, appendices, exhibits or addendums;
Documentation: means the user manuals that are supplied with the Software;
Category: means the Incident category as described in the Service Description;
Effective Date: means the date indicated on Customer’s purchase order for the Services;
Enhancement: means any changes to the functionality, performance or scope of the Software that is not directly related to an Incident;
Expiry Date: means the date indicated as such on the Support Certificate;
Help Desk: means Service Provider’s telephone or email help desk, the contact details of which are given in the Service Description;
Incident: means any issue relating to the Software raised with Service Provider by Customer in accordance with this Agreement;
License Agreement: means the Clearswift license agreement that relates to the particular Software installed and being used by Customer, as the same may be amended from time to time;
Patch: means a release of the Software where the first two digits of the version number have not been changed (i.e. 4.1.x to 4.1. (x+1);
Services: means the services provided by Service Provider to Customer as set forth in this Agreement;
Service Hours: means the hours when the Help Desk is open as described in the Service Description;
Service Levels: means the service levels for the relevant Service Provider as detailed in the Service Description;
Service Description: means the document found at here;
Technical Contact: means the individuals as described in clause 2.1;
Upgrade: means a release of the Software where either of the first two digits of the version number have changed (i.e. version 4.x to 4.(x+1) or x.1 to (x+1).1);
Workaround: means any of the following: (i) a resolution of an Incident through the normal support process; (ii) an existing Patch for the Incident; (iii) a temporary by-pass of an Incident; (iv) a statement that the Incident will be considered for correction in a future Upgrade or Patch.

2 TECHNICAL CONTACTS
2.1 Customer is responsible for nominating at least two employees per individual Clearswift software product to be Technical Contacts and informing Service Provider of the name of the Technical Contacts prior to the Effective Date. In the event of a change to the Technical Contact(s), including without limitation change in their employment status, Customer shall provide Service Provider with the name of a new Technical Contact, in writing, within 5 working days of such change.
2.2 Customer’s Technical Contacts only are entitled to telephone the Help Desk during Service Hours and/or email Service Provider at any time. Service Provider reserves the right to not accept any Help Desk enquiries that are not made by a Technical Contact. Service Provider shall allocate a Category to each Incident and a log of existing Incidents will be maintained.
2.3 Customer’s Technical Contacts may request Enhancements via the Help Desk. All Enhancement requests will be reviewed and evaluated for possible inclusion in future Patches or Upgrades. An Enhancement request will be acknowledged but Service Provider will be under no obligation to implement any specific request.

3 PROVISION OF SERVICES
3.1 Commencing on the Effective Date, Service Provider shall endeavour to provide the Services in accordance with the Service Levels.
3.2 Customer shall be entitled to access the Service Provider support web-site. Access to the support web-site shall be subject to the support web-sites terms and conditions.
3.3 Nothing contained herein shall oblige Service Provider to provide a Workaround to a Customer, or to include the relevant Workaround in any subsequent Upgrade or Patch.
3.4 Provided that this Agreement is valid and current, Service Provider shall, from time to time, release Upgrades and Patches to Customer. Service Provider reserves the right to issue a New License Agreement for an Upgrade which shall govern Customer’s use of such Upgrade.
3.5 In the event that Customer wishes Service Provider to access the Software remotely then Customer shall take all appropriate steps to maintain the security of data on its system and the security of its own system including, without limitation, taking back-ups of such data. Clearswift shall not be responsible for any loss of data, loss of performance, adverse impact on Customer’s system the Software or other software or hardware or any security breaches of the Customer’s systems as a result of any remote access of the Software

4 CUSTOMER RESPONSIBILITIES
4.1 Customer shall identify, document and report each Incident and supply Service Provider with all necessary documentation and assistance to demonstrate and diagnose an Incident.
4.2 Customer shall ensure that any personnel having access to the Software are properly trained.
4.3 Customer shall be responsible for the loading, implementation, integration and applicable testing of all Workarounds, Patches and/or Upgrades.

5 LIMITATIONS OF SERVICE
5.1 On-site support is not part of this Agreement. If requested, Service Provider can provide on-site support, subject to Service Provider’s standard terms, during normal working hours at the then current daily rates.
5.2 Services include support for the current version of the Software and the immediately preceding Upgrade only.
5.3 Third party products (of whatever nature) are not covered by this Agreement.
5.4 Service Provider shall have no obligation whatsoever to provide the Services:
a regarding Incidents caused by (i) Customer’s modifications to the Software, (ii) merger (in whole or in part) of the Software with any other software, or (iii) use of the Software in a manner or form other than defined and described in this Agreement, the License Agreement or the Documentation.
b regarding any functionality not directly related to the Software;
c regarding Incidents caused by hardware, software, networks, firmware or media not supplied, serviced or supported by Service Provider;
d regarding Incidents caused by persons not directly employed or retained by Customer; and/or
e regarding Incidents caused by any accident or disaster affecting the Software including but not limited to fire, flood, lightning or vandalism.

6 DURATION
6.1 This Agreement will terminate on the Expiry Date.
6.2 Service Provider will use its reasonable endeavours to notify Customer of the Expiry Date and request renewal of this Agreement.

7 TERMINATION
7.1 This Agreement may be terminated by either party effective immediately upon written notice if the other party:
a commits any material breach of this Agreement and has not remedied such breach within thirty (30) days of written request to remedy same; or
b the other party becomes insolvent, is adjudged bankrupt or becomes the subject of dissolution, liquidation or bankruptcy proceedings whether voluntarily or involuntarily (which are not dismissed within sixty (60) days), is subject to the appointment of a receiver or examiner, applies for judicial or extra-judicial settlement with its creditors, makes an assignment for the benefit of creditors, or otherwise discontinues business.
7.2 In the event of termination of the License Agreement for any reason then this Agreement shall immediately terminate.
7.3 In the event of termination of this Agreement in accordance with clauses 7.1 or 7.2 or if this Agreement is not renewed then (i) Service Provider shall cease providing the Services, and, (ii) all relevant amounts owed by one party to the other shall become payable immediately.

8 LIMITATION OF LIABILITY
8.1 NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA, GOODWILL OR OTHER PECUNIARY LOSS), UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY ARISING OUT OF THE PROVISION, IMPERFECT PROVISION OR FAILURE TO PROVIDE THE SERVICES, IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2 NEITHER PARTY’S TOTAL LIABILITY FOR ANY CLAIM, DEMAND OR ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES CONTEMPLATED HEREBY SHALL IN ANY CASE EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER HEREUNDER DURING THE PREVIOUS 12 MONTHS.

9 CONFIDENTIALITY
Should any confidential information whatsoever regarding one party’s business be acquired by the other party in the course of Service Provider providing the Services, such confidential information shall not be divulged to unauthorised third parties without the prior written consent of the disclosing party.

10 ENTIRE AGREEMENT
10.1 Failure of either party to insist in any instance upon strict performance by the other party of any provision of this Agreement shall not be construed or deemed to be a permanent waiver of such provision or any other provision of this Agreement.
10.2 This Agreement constitutes the complete and exclusive contract between the parties and supersedes all prior contracts, agreements, proposal or other communications concerning the subject matter of the Agreement.
10.3 This Agreement shall be governed by and construed in accordance with (i) the laws of the State of Washington, USA, if Service Provider is located in the United States of America, or (ii) the laws of England and Wales if the Service Provider is located elsewhere.
10.4 This Agreement may not be assigned by Customer without the prior written permission of the Service Provider.
10.5 In the event of any conflict or inconsistency between this Agreement, the Support Certificate, the Service Description or any other document describing all or part of the Services then the order of precedence shall be (i) this Agreement, (ii) the Service Description, (iii) the Support Certificate and (iv) any other document.
10.6 Neither party shall be responsible or liable to the other for its failure to comply with the requirements of this Agreement if such failure was due to force majeure events which shall include, but not be limited to, Acts of God, unusually severe weather, war (whether declared or not), fire or flood.