PhishGuard License Agreement

IMPORTANT—READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity, hereinafter “You” or the “Licensee”) and PhishGuard Corporation (“PhishGuard”) for the PhishGuard software that accompanies this EULA, which includes computer software and may include associated media, printed material, “online” or electronic documentation, and Internet-based services (the “Software”).

PHISHGUARD LICENSES THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS EULA. PLEASE READ THE TERMS CAREFULLY BEFORE CONTINUING INSTALLATION. IF YOU DO NOT AGREE TO THESE TERMS, PRESS THE “CANCEL” BUTTON TO EXIT THE INSTALLATION, AS PHISHGUARD IS THEREFORE UNWILLING TO LICENSE THIS SOFTWARE TO YOU.

BY CHOOSING THE “I AGREE” BUTTON YOU:

(1) REPRESENT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND YOUR EMPLOYER, AS APPLICABLE, TO THE TERMS OF THIS LICENSE, AND

(2) CONSENT ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER, AS APPLICABLE, TO BE BOUND BY THIS LICENSE.

PHISHGUARD DOES NOT CLAIM OR PROMISE THAT THE SOFTWARE WILL PROTECT YOU FROM ANY OR ALL MALICIOUS INTERNET SERVICES. The Software may be helpful in reducing the number of malicious services that you are exposed to. However, PhishGuard cannot and will not guarantee that PhishGuard or its agents will find or catalog all malicious services. Additionally, PhishGuard cannot guarantee that one or more malicious services will not discover a means to circumvent the intended operation of the Software. You agree to remain vigilant in your use of your computer and the Internet. BY USING THE SOFTWARE YOU AGREE THAT PHISHGUARD’S AND ITS AGENTS’ LIABILITY TO YOU IS EXPRESSLY LIMITED AS SET FORTH BELOW.

1. GRANT OF LICENSE

Subject to the terms and conditions of this EULA, PhishGuard hereby grants to Licensee a limited, personal, non-exclusive, non-sublicensable license (the “License”) to install on ONE computer and use for its own personal use ONE copy of the Software.

You may make and use an unlimited number of copies of any documentation, provided that such copies shall be used only for personal purposes and are not to be republished or distributed (either in hard copy or electronic form) beyond your premises.

2. OWNERSHIP OF SOFTWARE

This License does not convey to Licensee an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this License. THE SOFTWARE IS LICENSED, NOT SOLD. The Software is the property of PhishGuard, which reserves all rights not expressly granted in this EULA. PhishGuard or its suppliers own the title, copyright, and other intellectual property rights in the Software.

3. OTHER RESTRICTIONS

(a) You may not rent, lease, lend, sell, distribute, market, assign, transfer, or otherwise permit access to the Software to third parties;

(b) You may not provide commercial hosting services with the Software, or use the Software to function as a service bureau or application service provider;

(d) You may not remove, obscure, or alter PhishGuard’s or any third party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software;

(e) You may not copy all or any portion of the Software, except that you may make one copy for archival purposes, to be used only in the event that the Software becomes inoperative;

(f) You may not create derivative works based on the Software;

(g) You may not exercise any other right to the Software not expressly granted in this EULA.

(h) Any use of the Software other than pursuant to the terms of this EULA is a violation of U.S. and international copyright laws and conventions.

4. NO WARRANTY AND DISCLAIMER OF LIABILITY

THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS. PHISHGUARD AND ITS LICENSORS DO NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. FURTHERMORE, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH REGARD TO THE SOFTWARE.

Licensee acknowledges that PhishGuard does not guarantee compatibility between the Software and any future versions thereof. Licensee acknowledges that PhishGuard does not and cannot guarantee that Licensee’s e-mails or computer environment will be free from unauthorized intrusion or otherwise guarantee the privacy of Licensee’s information. Licensee will have sole responsibility for the adequate protection and backup of Licensee’s data and/or equipment used with the Software. The entire risk as to the quality and performance of the Software and any obligation with respect to service and support is borne by Licensee.

PHISHGUARD AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AND AGENTS (THE “PHISHGUARD PARTIES”) SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY FOR ANY DAMAGES SUFFERED IN CONNECTION WITH THE USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, DATA OR USE (“EXCLUDED DAMAGES”), EVEN IF ANY PARTY WAS ADVISED OF THE POSSIBILITY OF ANY EXCLUDED DAMAGES OR ANY EXCLUDED DAMAGES WERE FORESEEABLE, AND EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LICENSEE HEREBY EXPRESSLY RELEASES THE PHISHGUARD PARTIES FROM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, TO LICENSEE OR ANY THIRD PARTY AS A RESULT OF THE USE OF THE SOFTWARE OR THE INTRODUCTION THEREOF INTO LICENSEE’S COMPUTER ENVIRONMENT. IN NO CASE SHALL THE PHISHGUARD PARTIES' LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE.

The above disclaimer of warranty and liability constitutes an essential part of this License and Licensee acknowledges that Licensee’s installation and use of the Software reflect Licensee’s acceptance of this disclaimer of warranty and liability. Certain jurisdictions may limit PhishGuard’s ability to disclaim its liability to you, in which case, the foregoing disclaimer shall be construed to limit PhishGuard’s liability to the maximum extent permitted by applicable law.

5. CONFIDENTIALITY

Licensee acknowledges that the Software and certain other materials are confidential as provided herein. PhishGuard’s and its licensors’ proprietary and confidential information includes: (i) the Software, (ii) any and all other information which is disclosed by PhishGuard to Licensee orally, electronically, visually, or in a document or other tangible form which is either identified as or should be reasonably understood to be confidential and/or proprietary; and, (iii) any notes, extracts, analyses, or materials prepared by Licensee which are copies of or derivative works of PhishGuard’s or its licensors’ proprietary or confidential information from which the substance of confidential information can be inferred or otherwise understood (the “Confidential Information”).

Confidential Information does not include information that Licensee can clearly establish by written evidence: (i) is or became known by Licensee without an obligation to maintain its confidentiality; (ii) is or became generally known to the public without violation of any confidentiality restriction; or (iii) is independently developed by Licensee without access to the Confidential Information.

Licensee agrees not to disclose Confidential Information to any third party and will protect and treat all Confidential Information with the highest degree of care. Except as otherwise expressly provided in this License, Licensee will not use or make any copies of Confidential Information, in whole or in part, without the prior written authorization of PhishGuard. Licensee may disclose Confidential Information if required by statute, regulation, or order of a court of competent jurisdiction, provided that Licensee provides PhishGuard with prior notice, discloses only the minimum Confidential Information required to be disclosed, and cooperates with PhishGuard in taking appropriate protective measures.

6. U.S. GOVERNMENT RESTRICTED RIGHTS

All PhishGuard products and documentation are commercial in nature. The Software and documentation are “Commercial Items”, as that term is defined in 48 C.F.R. Clause 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. Clause 252.227-7014(a)(5) and 48 C.F.R. Clause 252.227-7014(a)(1), and used in 48 C.F.R. Clause 12.212 and 48 C.F.R. Clause 227.7202, as applicable.

Consistent with 48 C.F.R. Clause 12.212, 48 C.F.R. Clause 252.227-7015, 48 C.F.R Clause 227.7202 through 227.7202-4, 48 C.F.R. Clause 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, PhishGuard’s computer software and computer software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA.

7. CONSENT

The Software uses a connection through the Internet to servers maintained by PhishGuard to receive updates and to improve its operation.

(a) By loading the Software onto your computer, you hereby consent to receive software updates, database updates, and notices concerning Phishguard and the Software.

(b) You agree that information about malicious sites submitted by you to PhishGuard and information about malicious sites detected by the Software becomes the sole property of PhishGuard, and may be used by PhishGuard without restriction, provided that no personally identifiable information is disclosed to third parties.

(c) You further agree that any comments about the Software or ideas on how to improved it, as submitted by you to PhishGuard becomes the sole property of PhishGuard, and may be used by PhishGuard without restriction.

8. SOFTWARE AND CONTENT UPDATES AND SUPPORT

You agree that PhishGuard may modify the terms and conditions for delivery of software and content updates at any time without providing notice of such modification to Licensee, including, but not limited to changing the frequency or other characteristics of updates, changing the nature or extent of updates that are provided, or terminating all or part of the update services. This License shall apply to any such software and database updates unless expressly stated otherwise.

This License does not grant you any right to any maintenance or services, including without limitations, any support, enhancement, modification, bug fix, or update to the Software, and PhishGuard is under no obligation to provide or inform you of any such updates, modifications, maintenance or services.

9. TERM AND TERMINATION OF LICENSE

This License is valid until terminated. Licensee may terminate this License at any time by destroying or returning Licensee’s copy of the Software and all Confidential Information as set forth below. PhishGuard may terminate this License at any time for any reason. This License will terminate immediately if Licensee defaults or breaches any term of this License. Upon termination of this License for any reason, any right, license or permission granted to Licensee with respect to the Software shall immediately terminate and Licensee agrees to: (i) immediately cease to use any part of the Software; and (ii) promptly return the Software and all Confidential Information and related material to PhishGuard and fully destroy, delete and/or de-install any copy of the Software installed or copied by Licensee. The provisions regarding confidentiality, ownership, other restrictions, disclaimers of warranty, limitation of liability, waiver, equitable relief and governing law and venue will survive termination of this License indefinitely in accordance with their terms.

10. ASSIGNMENT

The License is personal to Licensee. Licensee may not assign the software. PhishGuard may assign, transfer, or sublicense this License or any rights or obligations thereunder at any time in its sole discretion.

11. ENTIRE AGREEMENT; SEVERABILITY

The Software includes applications and tools whose installation and use is governed by other license agreements or usage policies in addition to this EULA, including without limitation, the PhishGuard Privacy Policy. All current versions of this EULA and other agreements and policies are available at www.phishguard.com. This EULA, and the other agreements, policies, terms, and conditions incorporated by reference and available at www.phishguard.com represent the entire agreement between PhishGuard and Licensee and they supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any PhishGuard policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

Should you have any questions regarding this EULA, please write to: PhishGuard Corporation, Attn: Licensing, 3579 E. Foothill Blvd., Suite 436, Pasadena, CA 91107.

12. APPLICABLE LAW

This License shall be governed by and construed in accordance with California law without regard to conflict of law provisions thereto and, as to matters affecting copyrights, trademarks and patents, in addition, by applicable United States federal law. Any controversy or claim arising out of or relating to this License, or the breach thereof, except as noted below, shall be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by California law and will be held in Los Angeles, California. The arbitrator will be an expert in the field of Internet services and software. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. There shall be no class action arbitration pursuant to this License. PhishGuard may seek injunctive relief in any venue of its choosing. Licensee hereby submits to personal jurisdiction in such courts. The parties hereto specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this License and any transaction between them that may be implemented in connection with this License. The original of this EULA has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this EULA written in any language other than English.

13. WAIVER

No failure by PhishGuard to exercise or delay in exercising any right arising hereunder shall operate as a waiver thereof; nor shall a waiver by PhishGuard of any such right be deemed to be a continuing waiver, but such waiver shall apply solely to the instance in which the waiver was granted.

14. EQUITABLE RELIEF

It is agreed that because of the proprietary nature of the Software, PhishGuard’s and its licensors’ remedies at law for a breach by the Licensee of its obligations under this License will be inadequate and that PhishGuard and its licensors shall, in the event of such breach, be entitled to, in addition to any other remedy available to it, equitable relief, including injunctive relief, without the posting of any bond and in addition to all other remedies provided under this License or available at law.