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Symantec Service Provider Agreement [Exhibits] - Symantec Corp., Symantec Ltd. and Brightmail Inc.

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CONFIDENTIAL TREATMENT REQUESTED

EXHIBIT “A”

I. PRICES AND LICENSED PRODUCTS:

1. Existing Business:


Licensed Product	Price Per Authorized User for Existing Business other than Enterprise (which is per the Enterprise Schedule below).

	Number of Authorized Users	$/Authorized User (i.e. Mailbox/year
NAV API, Windows 2000 and Solaris	0-99,999	$*
	100,000-499,999	$*
	500,000-999,999	$*
	1,000,000 - 1,999,999	$*
	2,000,000 - 3,999,999	$*
	4,000,000 - 5,999,999	$*
	6,000,000+	$*

The Price per Authorized User for Existing Business applies cumulatively to each group of Authorized Users (also referred to as “Mailboxes” under the Prior Agreement) per Authorized Sublicensee throughout the entire Term of this Agreement; e.g. if an Authorized Sublicensee account has 600,000 Authorized Users, Brightmail would pay Symantec:

$*/user/year for each of the first 99,999 Authorized Users of such Authorized Sublicensee;

$*/user/year for each of the next 400,000 Authorized Users of such Authorized Sublicensee;

$*/user/year for each of the next 100,000 Authorized Users of such Authorized Sublicensee; and so on.

2. Enterprise:

Price per Enterprise Schedule


Number of Mailboxes		$/ Authorized User (i.e. Mailbox)/Year
0-1,999		*
2,000-4,999		$*
5,000-9,999		$*
10,000-24,999		$*
25,000-49,999		$*
50,000-99,999		$*
100,000 plus		$*

The Price per Enterprise for each Authorized Users (also referred to as “Mailboxes” under the Prior Agreement) with access to the Service is based upon the total number of Authorized Users on a per Enterprise

CONFIDENTIAL TREATMENT REQUESTED

basis. For example, if an Enterprise has 30,000 Authorized Users, Brightmail would pay Symantec $* ($*/Mailbox/year). If that same Enterprise increased its number of Authorized Users by 5,000 additional Authorized Users, Brightmail would pay Symantec an additional $* ($*/Mailbox/year) per the terms of this Agreement.

Payment for a minimum of * Authorized Users is required per Enterprise.

3. New Business:


Licensed Product		Price Per Authorized User for New Business

NAV API		Symantec will provide Brightmail, and Brightmail will purchase, * for * Authorized Users for * a year (the * and the “Minimum Commitment Payment for New Business”). Brightmail will receive the * from Symantec upon the Effective Date. If Brightmail’s New Business exceeds the * Authorized User threshold at any time during the * then Brightmail must purchase additional * in * Authorized User increments for a total of * (*“Incremental ”*). The and Incremental * are co-terminus for the same * period in which they are purchased but the Incremental * will be prorated as to the remaining time period in * period.

For example, upon the Effective Date, Payment will be * (which is paid per the terms of this Agreement) for up to * Authorized Users. If Brightmail then exceeds * Authorized Users in * of that * period, and has an additional * Authorized Users. Brightmail will purchase an Incremental * for a pro-rated amount of $* for the remaining * of the * period for that particular *, for up to * additional Authorized Users which exceed the allowed under the *.

II. PURCHASE ORDER:

Immediately after execution of this Agreement, Brightmail shall provide Symantec with a purchase order for the full amount of the fees under this Agreement for the * and Minimum Commitment Payment for New Business. Symantec shall invoice Brightmail per the terms of the Agreement. The purchase order shall be for the amount of * and should specifically state: “NAV API for a total of *, which represents the Minimum Commitment for New Business and for the purchase of an * at the * rate of * for a total of * Authorized Users, for a total of * per the terms of the Agreement and for the Minimum Commitment for Existing Business of *.”

No later than the Amended Date, Brightmail shall provide Symantec with a purchase order for the full amount of the Minimum Commitment Payment due under this Agreement, the signature pages of this Agreement and the check for the full amount due. The purchase order shall specifically state: “Additional license grant rights for NAV API for both limited Enterprise and limited Internal User rights, with a new Minimum Commitment for * totaling *, which is *.”

CONFIDENTIAL TREATMENT REQUESTED

III. PAYMENT SCHEDULE AND REPORTING:

1. General

For the purposes of this Agreement a twelve (12) month annual period is any consecutive twelve (12) calendar months starting with the first month of the Effective Date, whether or not it is a full calendar month. For purposes of this Agreement, a quarter is any three (3) calendar months starting with either January, April, July, or October.

All Payments, for purposes of both Existing Business and New Business which are not received within * days from the indicated Payment due date will be subject to late payment penalty fees. All Minimum Commitment Payments are due on the date indicated on the schedules below without net thirty (30) being applied unless otherwise indicated.

2. Minimum Commitment Payments.

For the first three (3) quarters after the Effective Date, a Minimum Commitment of * for each calendar * shall apply to the Existing Business. In terms of New Business, the Minimum Commitment Payment is the * payable over * for the Term of the Agreement, in the amount of * per calendar *, starting on the Effective Date of this Agreement. The Minimum Commitment Payment for the additional licenses added as of the Amended Date is payable initially on an * basis for the first year, starting on the Amended Date; and then thereafter, unless not renewed per the terms of Section IX, is paid *, starting March 26^th, 2004 until the end of the Term of the contract. The Minimum Commitment Payments shall be due in full according to the Minimum Commitment Payment schedule set forth below.

The Minimum Commitment Payments for the Existing Business do not include any Existing Business Adjustment in the first three (3) quarters from the Effective Date of the Agreement, Incremental * purchases through out the Term, or Existing Business in the fourth quarter of year one (1), all of year two (2), or year three (3).

* Only the * payments indicated by asterisks will be on payment terms of * days from the following *, * & * all other payments set forth above will remain as stated herein.

3. Reporting and Payments for the Price In Excess of the Minimum Commitment Payments.

(i) Existing Business: All Payments other than Minimum Commitment Payments, which are made in * shall be calculated on the last calendar Friday of the last * of the end of the calendar *, using the then existing Authorized User total, and shall be payable *. The Regional Report showing the Authorized User total for each * and the calculations of Payments due based on such totals shall be due from Brightmail within * days after the end of each calendar * during the Term for the *. Brightmail shall only be required to remit Payments for the Price so calculated to the extent that such Payments exceed the amount of any * portion of the Minimum Commitment Payment actually paid with respect to the applicable calendar * (the “Existing Business Adjustment”). Brightmail shall remit the amount of any Payments due as shown on each Regional Report with the Regional Report. In no event will the amount by which any Minimum Commitment Payment exceeds the actual Payment due calculated on the number of Authorized Users be refunded or carried over to any subsequent *.

CONFIDENTIAL TREATMENT REQUESTED

(ii) * and Incremental *. Incremental * at the Price indicated above must be purchased for any Authorized Users exceeding the number of Authorized Users indicated under a * and shall be due per the payment terms above. A Regional Report showing the Authorized User total for New Business, as totalled on the last Friday of the calendar * and the need for the purchase of an Incremental License based on the actual number of Authorized Users shall be due from Brightmail within * days after the end of each calendar * during the Term for the preceding calendar *. Brightmail shall only be required to purchase an Incremental License and remit Payments for the Price of the Incremental License so calculated to the extent that such actual number of Authorized Users exceeds the total of the * actually paid with respect to the applicable calendar *. Brightmail shall remit the amount of any Payments due as shown on each Regional Report with the Regional Report. Minimum Commitment Payments payable at the end of each * based on the Payment schedule set forth above will be applicable for that * only of the Term. In no event will the amount by which any * Payment or any additional Payment for an Incremental * exceeds the actual number of Authorized Users in any given * or * or * be refunded or carried over to any subsequent time period. In addition, the additional Payment for the Incremental * is prorated for the period remaining in any * payment period and only applies to that co-terminus *period.

IV. TERRITORY

The Territory shall be Worldwide.

V. SUPPORT

Brightmail shall continue to provide all direct technical support to (i) Authorized Sublicensees and contractually require the Authorized Sublicensees to provide such to the Authorized Users (regardless of whether they are Evaluations), (ii) Internal Users and (iii) Resellers of the Licensed Products through its standard technical support program. Symantec shall provide no support under the terms of this Agreement

EXHIBIT “B”

ALL PRIOR APPROVED ARRANGEMENTS WITH A UNIQUE DEFINITION OF

AUTHORIZED USER APPROVED PRIOR TO THE EFFECTIVE DATE


Name of Authorized Sublicensee	Effective Date of Agreement with Brightmail	Ending Date of Agreement with Brightmail	Approved Definition of Authorized User	Date Approved and Symantec Person Approving

*	December 15, 2000	December 14, 2002	User End shall mean the individual holder or authorized user of one or more email accounts * of the * Service.	* March 2002

*	April 19, 2001	April 18, 2004	“End User(s)” shall mean the individual holder or authorized user by Company’s . For purposes of determining the * number of End Users, the parties agree to the following: * The Parties agree that the following * will be used to * of End Users each : The number of End Users per will . The to determine the total number of End Users for the * will consist of: *.	* March 2002

			BI will monitor and provide the * by COMPANY based on the * and BI will also determine the number of End Users each . BI will and *to COMPANY.

*	April 18, 2001	March 8, 2004	“End User(s)” is the individual holder or authorized user of the email account hosted by Aristotle Email Service.	* March 2002

*	March 20, 2001	August 19, 2005	“End User(s)” is the individual holder or authorized user of the email account hosted by Company Email Service.	* March 2002

*	March 29, 2002	May 20, 2005	“End User(s)” is the individual holder or authorized user of the email account hosted by the Company Email Service	* March 2002

*	June 20, 2000(term.); June 5, 2002	3 years from AV Acceptance	“End User(s)” is the individual that * hosted mail service * Company reports such data to Supplier (“Reporting Period”). An End User will also be the number * by Company’s * customers who are using Company’s * where such usage includes the Product AV Product).	* May 2002

CONFIDENTIAL TREATMENT REQUESTED

EXHIBIT “C”

SERVER SECURITY REQUIREMENTS

[GRAPHIC]

Information Technology

Security Requirements for ISPs and ASPs Providing Services on Behalf of Symantec

Revised December 3^rd, 2001

Version 1.4

CONFIDENTIAL TREATMENT REQUESTED

TABLE OF CONTENTS


1. Network-Level Requirements		2
2. Operating System-Level Requirements		2
3. Application-Level Requirements		3
4. Use of Encryption		3
5. Audit Requirements		3

Revision history:


Date	Author	Description
17/11/00	*	-Updated format -Updated BS 7799 reference (now ISO Recommendation 17799) -Updated phone number for Tim Mather
1/1/01	*	-Updated logos -Andersen Consulting now Accenture
3/13/01	*	-Added section on use of encryption
9/22/01	*	-Revisions to requirements in all sections

Page 1

CONFIDENTIAL TREATMENT REQUESTED

Introduction

These security requirements pertain to non-Symantec organizations, which will be providing services to, or on behalf of, Symantec. This might include product information that is relied upon by our customers, electronic delivery of products or Certified Definitions for viruses, or the collection of registration information.

There are five (5) sets of requirements for providing services to, or on behalf of, Symantec. Those requirements are:

1.	Network-Level Requirements: Vendor shall have * addresses network-level requirements * dealing with issues such as *

1.1. * shall be used to protect * Symantec information. *.

1.2. *.

1.3. *.

2.	Operating System-Level Requirements: Vendor shall have * addresses operating system-level requirements, , dealing with issues such as

2.1. *.

2.2. *.

2.3. Operating system(s) * shall *.

2.3.1.

Several organizations and vendors have documentation, checklists, or tools designed to facilitate this security configuration process, and are generally recognized as “best practices”. For example,

2.3.1.1. *.

2.3.1.2. *.

2.3.1.3. *

2.4. Vendor shall have *.

2.5. Service provider shall have *.

3.	Application-Level Requirements

3.1. *.

3.2.

Service provider shall have a documented *, and shall adhere to application vendor’s recommendations for “best practices”.

4.	Use of Encryption

4.1. Encryption shall be used under the circumstances listed below.

4.1.1.

4.1.1.1. *.

4.1.1.2. *.

4.1.2.

4.1.3.

5.	Compliance Verification Requirements

5.1. Service provider shall *.

5.1.1.1. * shall be:

5.1.1.1.1.*, or

5.1.1.1.2.*, or

5.1.1.1.3.*.

5.2. Small contracts

5.2.1.

Vendors whose contracts are less than * with Symantec may chose * to fulfill * verification of all security requirements.

Questions concerning these requirements should be directed to * Symantec’s Director of Information Security. He can be reached at *.

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CONFIDENTIAL TREATMENT REQUESTED

[GRAPHIC]

EXHIBIT “D”

Guidelines for Using Symantec’s Trademark/Logo

Brightmail or Authorized Sublicensee shall use Symantec’s Trademark/Logo in accordance with these guidelines made by Symantec concerning the appearance, placement or use of the Trademark/Logo.

Brightmail or Authorized Sublicensee shall:

(a)	use only approved Trademark/Logo artwork provided by Symantec;

(b)	not display the Trademark/Logo more prominently, or larger than, or before the Brightmail or Authorized Sublicensee’s company name/logo and product name/logo, wherever displayed;

(c)	not refer to Brightmail or Authorized Sublicensee’s products in which the Trademark/Logo is referenced as “Symantec software” or imply that Symantec produced, endorsed, or supports the Brightmail or Authorized Sublicensee’s Products;

(d)	not display the Trademark/Logo in a manner or location disparaging to Symantec;

(e)	not display the Trademark/Logo in any publication or on a web site that is pornographic, violent in nature, is in poor taste or unlawful, or which has a purpose or objective of encouraging unlawful activities;

(f)	not use the Trademark/Logo as a possessive or in the plural form;

(g)	use the Trademark/Logo as an adjective followed by generic descriptors;

(h)	include a ^TM symbol after the first or most prevalent use of the Trademark/Logo on each page in which it appears, and attribute the Trademark/Logo as a U.S. trademark of Symantec Corporation in a legend on packaging, splashscreens, web pages, and other materials where the Trademark/Logo appears;

(i)

not include the Trademark/Logo in Brightmail or Authorized Sublicensee’s company name, business name, or in the name of Brightmail or Authorized Sublicensee’s product, technology, services, web page, or in any manner suggesting an affiliation or endorsement by Symantec of Brightmail or Authorized Sublicensee or its beliefs, ideas, products, technology, or services;

(j)	not use the Trademark/Logo in connection with any product competing with a Symantec product, including, without limitation, the sale or advertisement thereof;

(k)	supply Symantec with suitable specimens of Brightmail or Authorized Sublicensee’s use of the Trademark/Logo at any time upon reasonable notice from Symantec; and

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CONFIDENTIAL TREATMENT REQUESTED

(l)	comply with Symantec’s request to correct, remedy, or discontinue any use by Brightmail or Authorized Sublicensee of the Trademark/Logo which is determined by Symantec to be improper under these Guidelines.

(m)	The following suggestions and guidelines will help to make the review and approval process of marketing material more effective and timely.

To help expedite the approval process, Brightmail’s marketing can:

•

Appoint a marketing point of contact within Brightmail to work with Symantec on the review and approval on marketing material and to determine appropriate branding/messaging with regard to Symantec products.

•

Brightmail to provide marketing pieces to Symantec for upcoming Authorized Sublicensee deals no less than one (1) month in advance of planned launch date so Brightmail’s timelines can be accommodated as much as possible by starting to review the promotional material in advance of the launch.

•

On all future launches, provide Symantec with marketing launch plan and timeline, so Symantec has advance notice of what marketing pieces will need review and approval and when, thus helping to accommodate Brightmail’s timelines as much as possible.

•

Use Symantec’s standard word descriptions for Norton AntiVirus 2002 and Norton Person Firewall 2002. See attachments (nav2002_wd.doc and npf2002_wd.doc). The updated 2003 word descriptions will be provided when available.

•

Follow our “Guidelines for Using Symantec’s Trademark/Logo”, see attached document (Guidelines for Using Symc Trademarks.Logos.053102.doc), also exhibit D in the contract.

•

Follow guidelines as set forth in the contract, see Terms and Conditions, section d.

(n)	The following Trademarks and footnotes are to be used:

[GRAPHIC]

Trademark/Logo footnote:

Symantec and the Symantec logo are U.S. registered trademarks of Symantec Corporation. Powered by Symantec^TM is a trademark of Symantec Corporation.

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CONFIDENTIAL TREATMENT REQUESTED

(o)	The following phrases are approved by Symantec for use in the following manner:

The following examples are approved for use by Brightmail:

With Brightmail AntiVirus, powered by Symantec^TM, you can feel secure that all your e-mail is protected.

The Brightmail Anti-Virus Solution, powered by Symantec^TM anti-virus technology, protects users from the increased threat of infection via email.

The following examples are approved “powered by Symantec” messages relevant to Authorized Sublicensees of Brightmail:

[INSERT AUTHORIZED SUBLICENSEE’S SERVICE NAME HERE] combines the virus detection and repair technology from Symantec, with the proven rapid response messaging system filtering technology of the Brightmail Logistics and Operations Center (BLOC) to identify, redirect, clean then deliver the emails.

With Powered by Symantec’s AntiVirus technology, Brightmail is able to provide enterprise customers with top-level security from viruses. By combining Symantec’s unrivaled virus detection and repair technology with Brightmail’s real time rule delivery and message filtering technology, Brightmail brings [INSERT AUTHORIZED SUBLICENSEE’S NAME HERE] fast, most thorough virus-protection available, combined with an ISP-strength anti-spam solution.

When a virus threat occurs, experts at Symantec Security Response deliver to Brightmail the anti-virus definitions, services and response to combat the outbreak.

Brightmail’s proprietary Anti-Spam technology and Brightmail’s Anti-Virus technology, powered by Symantec, together filter out spam and viruses at the gateway.

[INSERT AUTHORIZED SUBLICENSEE’S NAME HERE] is deploying Brightmail^{^®} Anti-Virus software, powered by Symantec. Brightmail is a technology leader in spam management software. The virus-identifying and blocking technology prevents contaminated e-mails from causing damage to computer files and to the network. The antivirus software will scan all incoming e-mail messages to [INSERT AUTHORIZED SUBLICENSEE’S NAME HERE]’s subscribers, clean infected messages, and notify the recipient if a virus is detected and removed.

[INSERT AUTHORIZED SUBLICENSEE’S SERVICE NAME HERE] with junk-email filtering powered by Brightmail, and e-mail virus filtering powered by Symantec^TM, starts at just $X, a month. One hundred percent filtering is not guaranteed.

Access your email from anywhere around the world. [INSERT AUTHORIZED SUBLICENSEE’S SERVICE NAME HERE] provides filtering for junk e-mail and email viruses. No software to install! Filtering for junk e-mail is powered by Brightmail, and filtering for e-mail viruses is powered by Symantec^TM.

Page 5

CONFIDENTIAL TREATMENT REQUESTED

EXHIBIT “E”

“REPORTING REQUIREMENTS”

No later than thirty (30) days following the end of each calendar quarter, during the Term, Brightmail will provide Symantec with a report containing certain transaction information, including but not limited to the following:

(i) Basic Licensee Information. Report should indicate Brightmail’s corporate name and corporate address, indicating a contact person if there are any questions.

(ii) Identify Authorized Sublicensees. Provide corporate name of the Authorized Sublicensees of the BMI Service as well as those provided by the Reseller. Also provide the name (and if possible, address) of the Reseller.

(iii) First Date of Use of the Licensed Product as incorporated into the BMI Product Date. Indicate First Date of Use each Authorized Sublicensee initially signed up for the Service, how long of a term the contract between Brightmail and the Authorized Sublicensee is for, and indicate the total of new Authorized Users for the calendar quarter by Authorized Sublicensee.

(iv) Authorized User Information. Indicate how many Authorized Users are active by the last Friday in each calendar quarter time period per Authorized Sublicensee. How Authorized User is being defined with each Authorized Sublicensee. The Minimum Commitment and number of Authorized Users by which the Minimum Commitment is exceeded.

(v) Excel Format. All reports should be in Excel format and indicate the final net amount to be received from the Authorized Sublicensee.

(vi) Regional reporting as outlined in the Agreement under Section V.2 As this is an international contract, the reporting must also be by geographic country so that Symantec can properly account for tax purposes.

(vii) Brightmail has provided a mock report which is attached hereto as Exhibit E-1 and obtain Symantec’s written approval of the format of such report.

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CONFIDENTIAL TREATMENT REQUESTED

Exhibit E-1

Page 1

Brightmail, Inc.

301 Howard Street

San Francisco, CA 94105

contact: *

phone: *; email *

* Preliminary Royalty Report

CONFIDENTIAL TREATMENT REQUESTED

Authorized
Service
Provider

Customer
Type

Definition
of
Authorized
User

Region

Acceptance
Date

Contract
End Date

EULA
Term
in Months

Royalty Rate

* Royalty

Feedback
Notes

Users

Minimum
Commitment
or
Authorized
Users

Effective
Rate

Proration

Est.
royalty

XSP

Americas

11/15/2001

New

XSP

Americas

8/12/2002

New

minimum

ENT

Americas

9/28/2001

Converted

minimum

ENT

Americas

9/12/2001

Converted

minimum

ENT

Americas

7/1/2001

Converted

minimum

XSP

Asia/EMEA

3/1/2002

Converted

minimum

XSP

Americas

12/31/2001

Converted

minimum

XSP

Americas

3/4/2002

Converted

minimum

XSP

Americas

12/31/2001

Converted

XSP

Americas

10/17/2001

Converted

XSP

Americas

9/28/2001

Converted

minimum

XSP

Americas

12/27/2001

Converted

minimum

XSP

Americas

12/1/2001

Converted

XSP

Asia/EMEA

4/30/2002

Existing

minimum

XSP

Asia/EMEA

1/1/2002

Existing

minimum

XSP

Asia/EMEA

2/1/2002

Existing

est based
on Q2 AU

Minimum Commitment Payment

Additional Amount Due

XSP

Americas

5/16/2002

Existing

XSP

Americas

5/1/2001

Existing

minimum

XSP

Americas

5/1/2001

Existing

minimum

XSP

Americas

3/1/2001

Existing

minimum

XSP

Americas

12/7/2001

Existing

XSP

Asia/EMEA

1/1/2002

Existing

minimum

XSP

Asia/EMEA

1/1/2002

Existing

minimum

XSP

Asia/EMEA

7/29/2002

New

minimum

XSP

Asia/EMEA

7/15/2002

New

minimum

XSP

Americas

3/5/2002

Existing

minimum

XSP

Americas

3/1/2001

Existing

minimum

XSP

Americas

3/15/2002

Existing

minimum

XSP

Americas

12/17/2001

Existing

minimum

XSP

Americas

5/17/2001

Existing

minimum

XSP

Americas

8/20/2001

Existing

XSP

Americas

3/1/2002

Existing

minimum

XSP

Americas

5/20/2002

Existing

minimum

XSP

Americas

3/1/2002

Existing

minimum

XSP

Americas

12/31/2001

Existing

minimum

XSP

Americas

4/1/2002

Existing

XSP

Americas

12/21/2001

Existing

XSP

Americas

1/17/2001

Existing

minimum

ENT

Americas

12/20/2001

Existing

ENT

Americas

4/1/2002

Existing

Minimum Commitment Payment

Additional Amount Due

ENT

Americas

ENT

Asia/EMEA

XSP

2/1/2001

Audit Adjusted

XSP

6/1/2001

Audit Adjusted

XSP

3/9/2001

Audit Adjusted

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CONFIDENTIAL TREATMENT REQUESTED

Exhibit “F”

The following Converted Business will be included under the * at the royalty rate indicated in Exhibit A as Existing Business.


Authorized Sublicensee	First Date of Use	Contract End Date	AV Pricing	No. of months in Term of Authorized Sublicensee’s contract	Royalty Rate
*	TBD	TBD	*	*	*
*	TBD	TBD	*	*	*
*	12/01/01	11/14/07	*	*	*
*	12/08/01	12/7/04	*	*	*
*	09/28/01	9/28/05	*	*	*
*	TBD	8/15/06	*	*	*
*	TBD	8/1/05	*	*	*
*	TBD	8/1/05	*	*	*
*	09/28/01	12/31/02	*	*	*
*	03/04/02	2/28/05	*	*	*
*	12/19/01	2/28/05	*	*	*
*	9/12/01	9/11/04	*	*	*
*	03/01/01	7/1/03	*	*	*
*
	12/31/01 10/17/01	12/30/05	*	*	*
*		10/16/04	*	*	*
*	11/15/00	11/14/03	*	*	*

*	Both approved by an officer of Symantec as an exception to the * requirement.

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EXHIBIT G

DISTRIBUTION AGREEMENT

This Distribution Agreement is entered into on (“Effective Date”) by and between Brightmail Incorporated, a California corporation (“BMI” or “Brightmail”) with principal offices at 301 Howard Street, Suite 1800, San Francisco, CA 94105 and , a corporation (“Distributor” or “ ”), with principal offices at . BMI and will collectively be referred to as the “Parties” and each of them will be a “Party”.

WHEREAS, BMI develops and licenses client/server software, and hosts software related services, including but not limited to, software and services that reduce or eliminate Spam;

WHEREAS, wishes to obtain from BMI the non-exclusive right to market and distribute certain BMI products and services to its customers directly and indirectly through resellers of Distributor, and BMI agrees to appoint for such purposes subject to the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree to the following terms and conditions, which set forth the rights, duties and obligations of the Parties:

1. DEFINITIONS

1.1	“Affiliate” means any entity in which has a greater than fifty-percent (50%) equity ownership interest in or which has voting control over, or any entity which owns a greater than fifty-percent (50%) equity ownership interest in or which has voting control over .

1.2	“Agreement” is this Distribution Agreement entered into by the Parties, together with all and any Exhibits attached hereto and made a part hereof, and all and any amendments or modifications made hereto pursuant to mutual written agreement of the Parties.

1.3	“Application Service Provider” or “ASP” is an entity that provides application services remotely for a fee or other consideration to its Customers, none of whom are under the ASPs immediate employ or the employ of any parent, or subsidiary.

1.4	“BMI Trademarks” are the trademarks, logos and trade names of BMI which may be registered or unregistered and include, but are not limited to, those BMI Trademarks set forth at http://www.brightmail.com/trademark.html.

1.5	“Customer(s)” is the individual that subscribes to the End Users’ email services; or the total number of Mailboxes existing on the End Users’ email system and/or that have access to the Services

1.6	“Documentation” is BMI’s standard system administrator documentation that outlines the system architecture and its interfaces of the Product, including comprehensive guides on installation and operations, and on application program interfaces (“API”).

1.7	“End User(s)” is the ISP, ASP or Enterprise customer that upon executing an End User License Agreement, obtains a license for the Software and Services for its own internal use with Internet services or online application services for the benefit of its End Users.

1.8	“End User License Agreement” is the license and service agreement between an End User and that governs the End User’s rights and restrictions in use of the Product and in receiving

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the benefit of the Services, and that contains substantially the minimum terms and conditions detailed in the attached Exhibit B.

1.9	“Enterprise” individually and collectively the entities other than ISPs and ASPs that procure Services for internal use in conjunction with the entities’ internal needs for the benefit of its employees, agents, and contractors.

1.10

“IP Rights” means all and any intellectual property rights in the Software, the Documentation and BMI Trademarks, and/or which are derived or arise from the Services, including copyrights, inventions, patents, trade marks, service marks, trade names, moral rights, mask words, trade secrets, goodwill, confidential and proprietary information, compositions and formulae whether created in the United States of America or elsewhere and all applications for registration and registrations of such rights.

1.11	“Internet Service Provider” or “ISP” is an entity that provides Internet access and messaging services for a fee or other consideration to its End Users, none of whom are under its immediate employ or the employ of any parent, or subsidiary.

1.12	“Mailbox(es)” is an area in memory in a storage device where email is placed and/or stored, i.e., an email address. An individual End User may have one or many Mailboxes.

1.13	“Marketing Materials” are sales and marketing collateral including but not limited to: sales presentations, datasheets, white papers, press releases, industry articles, benchmark test reports, competitive evaluations, and customer testimonials.

1.14	“Product” or the “Brightmail^® Solution Suite” comprises the Software, including Updates and Upgrades thereto, if any, the Services and the Documentation, as more fully described in Exhibit A, attached hereto and made a part hereof.

1.15	“Rules” are explicit, conditional statements, or criteria, that are created and used by BMI to detect and filter Spam (as defined below), and are made available by BMI to ’ or directly to End Users solely as part of the Services.

1.16	“Rule Update(s)” are modifications and revisions to the Rules made available by BMI to or directly to End Users as part of the Services.

1.17	“Server(s)” are a combination of Software, hardware, processes and functions and that are collectively used to filter the incoming mail of End Users. Servers are set up to divert, reject, or discard Spam.

1.18

“Service(s)” are the provision by BMI of its email analysis and filtering system, which services include the creation of Rules and Rule Updates, Updates (as defined below) and Upgrades (as defined below), all of which are used to detect Spam. Services also include Server support and general Product support as more fully described in this Agreement.

1.19	“Service Provider(s)” are ASPs and ISPs, collectively.

1.20

“Software” is BMI’s email-filtering software, and is part of the Product. The Software is more fully described in Exhibit A, attached hereto. To the extent that BMI (in its sole discretion) provides or directly to End Users with any Updates and/or Upgrades during the term of this Agreement, all references to Software will include such Updates and/or Upgrades.

1.21	“Sale” and /or “Sell” means the distribution of the Software to the End User. All Software sold to the End User will be pursuant to a End User License Agreement

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1.22	“Territory” means the territory comprising the countries described in Exhibit A attached hereto.

1.23

“Training Materials” means informational materials, including but not limited to summary Product and Service information, frequently asked questions and responses, architectural and functionality descriptions and diagrams, etc., and other information included in BMI’s training materials for its training classes.

1.24

“Updates” are minor updates of, or error corrections and bug fixes to the Software that do not add significant new functions to the Software, and that are released by BMI, in its sole discretion. Updates are designated by an increase to the Software’s release number to the right of the decimal point (e.g., Software 1.0 to Software 1.1). The term Updates specifically excludes Upgrades and excludes any software marketed and licensed by BMI as a separate product.

1.25

“Upgrade(s)” are any major revisions to the Software, which adds significant new functionality, if and when released by BMI, in its sole discretion. Upgrades are designated by an increase in the Software’s release number, located to the left of the decimal point (e.g., Product 1.x to Product 2.0). The term Upgrade specifically excludes any software marketed and licensed by BMI as a separate product.

2. APPOINTMENT; GRANT OF RIGHTS

2.1 Subject to the terms and conditions contained in this Agreement, BMI hereby appoints as an authorized distributor of the Product and hereby accepts such appointment. Subject to the terms and conditions of this Agreement, BMI grants to for the duration of the Term (as defined below), a non-exclusive, revocable, royalty-bearing, license (“License”) to market and distribute the Product to End Users, specifically, ISPs, ASPs, and/or Enterprises, within the Territory and that are using the Solaris operating system. The parties understand and agree that pricing, as provided herein, is dependent on the End User type, e.g., ISP, ASP or Enterprise, and the manner in which the End User will pay for the Product, e.g., for all Customers existing on its email services or for those Customers receiving the benefit of the Services. will report the End User type and the manner in which the End User is paying for the Product to BMI as provided in Section 6, 9, and Exhibit C, herein. will provide the Product to End Users pursuant to an End User License Agreement. may distribute the Product directly, or indirectly via its authorized resellers (each a “Reseller”). may appoint one (1) or more persons to act as a Reseller, provided that has written agreements with each such Reseller containing terms protecting BMI and its proprietary Product to the same extent as provisions relies on to protect its own products (“Reseller Agreement”). will take all reasonable measures to enforce such provisions in favor of BMI to the same extent that it would enforce such Reseller Agreements on its own behalf. may only grant Resellers the right to make sales to End Users. Each Reseller Agreement will contain provisions making BMI a direct and intended third party beneficiary of such Reseller Agreement, such that BMI may enforce its proprietary and intellectual property rights against any of ’s End Users and Resellers.

2.2 In connection with ’s sale and distribution of the Products to End Users, BMI will be solely responsible for the delivery of the Services to End Users, directly, and BMI agrees to provide the Services in accordance with the same policies and procedures that it uses to provide the Services to its own direct customers and licensees. will have no right or license to distribute, display or otherwise make available the Rules or Rule Updates. Brightmail may, at its sole discretion, and subject to the then-current fee, if any, and subject to certain restrictions, allow to distribute the Rules or Rule Updates to its End Users.

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2.3 BMI will deliver to one (1) master copy of the Software in machine executable object code format together with BMI’s labeling and Documentation artwork data files, in electronic format. Subject to the terms and conditions of this Agreement, BMI grants to a nonexclusive, non-transferable, royalty-free right and license to copy the Software in machine executable object code format only and to copy the Documentation for incorporation in documentation for distribution to Resellers or End Users in accordance with the terms and conditions of this Section. Any use of BMI’s trademarks, trade names or logos will be in accordance with Section 8 below.

2.4 Subject to terms and conditions of this Agreement, BMI grants to for the duration of the Term a non-exclusive, revocable, royalty-free and fully paid up, non-transferable license to install and use copies of the Software solely for internal, non-commercial use, including, by way of example, development, support, testing and customer care services (“Support License”). This Support License may be used at any of ’s facilities where needed, and, on a royalty-free basis. BMI will provide any Rule Updates, Updates and Upgrades as commercially made available for these Support Licenses.

2.5 BMI hereby grants to a non-exclusive, royalty-free license, at its sole expense, to translate the Documentation, Training Materials, and Marketing Materials for distribution with the Product to non-English speaking countries. As between and BMI, will be solely responsible for any and all liability that results directly from the translation of the materials to any language other than English. If during the term, BMI desires to obtain a translated version, BMI will notify of such in writing, and following reimbursement by BMI of half (¹/₂) of ’s cost in translating the materials into the requested language, will make the translated versions available to BMI for its unrestricted use.

2.6 With each potential End User, may offer a one-time evaluation license to that potential End User, provided the evaluation extends for no more than sixty (60) days, unless obtains BMI’s prior written permission. Such evaluation will be conducted at no charge to the End User, and will only be used as a lead into the attempted sale of licenses in accordance to the terms and conditions herein.

2.7 Distributor may describe itself as the authorized distributor for the Product in the Territory, but will not hold itself out as an agent, representative, partner or joint venture partner of BMI or being in any other way connected with BMI. Distributor will at all times be an independent contractor.

2.8 Each party will appoint a representative as a relationship manager who will be the primary contact for implementing and administering the terms and conditions of this Agreement (“Relationship Managers”). The Relationship Managers will be those people set forth on Exhibit A and will meet, either in person or via teleconference at least monthly and at mutually agreeable times to review and coordinate sales efforts, review ’s marketing/sales strategies, review End Users’ response to the Services and address other topics related to the successful support of the Products.

3. RESTRICTIONS

3.1 will not use, apply or otherwise deal with the Product for any purpose other than the purpose set out in Section 2.1 of this Agreement. will not decompile, reverse engineer, disassemble, reconstruct, tamper with or otherwise determine, or attempt to derive, reconstruct or discover the source code for the Product or any part thereof, or modify or create or attempt to create any derivative works from or based on the Product, nor will authorize, permit, or assist any End User or anyone else to do so. will not, and will not authorize, permit, or assist any End User to determine or attempt to determine the Rules or Rules Update(s) used by the Software under any circumstances whatsoever.

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3.2 will require that use of the Product by its End Users will be in accordance with the Documentation or any other operation or user instructions or manuals furnished by BMI or its licensors, and in accordance with any other reasonable requirements of BMI.

4. PROPRIETARY RIGHTS

4.1 Ownership of all rights (including the IP Rights), title and interest in the Product (including but not limited to copies of the Product contained in any storage media) the Marketing Materials, Training Materials and any other materials provided by BMI to will at all times remain the absolute and exclusive property of BMI and/or its licensors, as the case may be. Except as expressly granted herein, is granted no rights to create derivative works of the Product, or to distribute the Product to third parties. In the event that notwithstanding the above, has or acquires any such said rights, title or interest, will be deemed to have irrevocably assigned and transferred the same to BMI free from any requirement on the part of BMI to pay any fees. Further and if required by BMI at BMI’s cost, will execute and deliver to BMI all relevant documents of assignment and transfer in respect of the said rights, title or interest, and the documents will be in such form as may be required by BMI.

4.2 , its officers, employees, servants and agents will not remove, alter, obscure, conceal or otherwise interfere with any BMI Trademarks, or other EP Rights in the Product, appearing on or in copies of the Product or on the Software or other materials delivered to by BMI. In connection with the distribution of the Product, will use those notices, legends, symbols or labels in connection with the Product in the same manner as they appear on or in the Product.

5. NO OTHER RIGHTS.

Except as expressly provided herein, no right (including the IP Rights), title or interest in any Product is granted by BMI to , and all such right, title and interest is reserved and retained by BMI. Without limiting the foregoing, B MI reserves the right to use, distribute, sell, resell, apply, import, export, make, have made, use, copy, modify, have modified, create derivative works of, have created derivative works of, demonstrate, maintain, support or otherwise exploit the Product in any part of the world (including the Territory), and the right to license the foregoing rights.

6. SCOPE OF SERVICES; ORDERS AND DELIVERY; TRAINING

6.1

will submit a purchase order (“Order”) to BMI in writing or via email for the Services to be provided to each of its End Users pursuant to one or more End User License Agreements. The purchase order shall be issued upon execution of an End User License Agreement. The Order shall state the Order number, End User name, Service description, applicable Fee (as defined in Section 9.1), End User categorization (i.e., an ISP, ASP or Enterprise), the manner in which the End User is paying for the Product (100% opt-in or selective opt-in), the aggregate number of Customers, a distribution email address for the provision of Rules and Rule Updates, and the contract term. Unless otherwise noted, BMI shall use such Order as evidence that the End User is properly configured to receive the Services, and BMI shall commence the provision of such Services within four (4) days of receipt of the Order. shall notify BMI promptly in writing with respect to any: (i) effective dates of evaluations and/or acceptance by any End Users; (ii) termination or expiration of a End User License Agreement; and (iii) any other relevant change in Service description. will provide a quarterly report, verifying and updating the information contained’ in the Order for each End User, including the then current of numbers of Customers per End User (“Product Report”). The Product Report will be due within fourteen (14) calendar days of the end of the quarter for the just ended quarter; e.g., the Product Report due for January, February, and March, will be due on April 14. BMI will generate an invoice for any increases in the number of End Users provided within the Product Report at the applicable fee rate.

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6.1.1

Any evaluation licenses will be noted within an Order and will contain the same information listed above. will indicate the beginning and end dates. For any evaluation licenses exceeding sixty (60) days without written consent for extension from BMI, will be charged the applicable fee for that End User type and in accordance to the terms outlined in section 6.1.

6.2	and BMI mutually agree to work in good faith to reduce channel conflict.

6.3	BMI will make available the following to in respect of the Product:

6.4.1

Documentation and other written information and data, if any, for the installation, use and application of the Product by and/or its End Users (as applicable) in either printed or machine-readable form as BMI may in its sole discretion elect.

6.4.2

A reasonable quantity of Marketing Materials and Training Materials to the respective appropriate contacts in the English Language in electronic or other mutually agreeable format, as available or upon material update, change or enhancement (particularly with respect to any Updates or Upgrades). It is anticipated that will integrate the Training Materials supplied by BMI into ’s training curriculum.

6.4.3

In connection with the commencement of this Agreement, the training of a number of suitably qualified employees of in the marketing and promotion, and the installation, use and application of the Product, and the rendering of training and support services to End Users as described in Exhibit D of this Agreement, as may be required by Distributor. Such training (“Training”) will be undertaken by BMI at the premises of BMI unless otherwise agreed by the Parties. If the Training is at a location other than the premises of BMI, will be responsible for all expenses that may be incurred by the employees of BMI in attending the Training, including airfare, ground travel expenses, accommodation and meals, and telecommunication expenses.

6.4.4

At the request of , (a) after the initial execution of this Agreement and (b) thereafter per each Upgrade release, visits to ’s premises, (but not to exceed three (3) man-days) by such number of suitably qualified personnel of BMI as BMI deems appropriate who will, within their reasonable means and capabilities, address or troubleshoot technical problems encountered by in connection with the Product. will be responsible for all expenses that may be incurred by the employees of BMI in providing such services, including airfare, ground travel expenses, accommodation and meals, and telecommunication expenses.

6.4.5

In connection with any Updates and/or Upgrades that may be made available by BMI to , and on such timing as notified by BMI, the training of a mutually agreed upon number of suitably qualified employees of at the premises of BMI (unless otherwise agreed by the Parties), and for such period as the parties deem appropriate, in the marketing, promotion, installation, use and application of the Upgrades, and the rendering of training and support services to End Users with respect to such Upgrades and as described in Section 13. Appropriate Update training will be mutually determined after discussions as to the extent and impact of the Updates. For the avoidance of doubt, BMI is not required under the terms of this Agreement or otherwise to disclose any source code comprised in the Product or Updates and/or Upgrades.

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6.5 If requires further and additional assistance or instructions beyond any time frame or time limit or number of personnel allocated for purposes of Section 6.4 of this Agreement or requires further and additional assistance or instructions from time to time during this Agreement on any matter relating to the Product or any Updates and/or Upgrades that are not expressly included in Section 6.4 of this Agreement, BMI may provide such assistance or instructions in such manner and by such means as BMI deems appropriate, provided that BMI has the capacity and available resources to provide such assistance or instructions, and provided further that will pay BMI’s then-current fees for such services upon completion of the effort. BMI will provide a written quotation of the deliverable and the then-current fees and will provide written acceptance, prior to the start of any services rendered under the scope of Section 6.5.

7. DUTIES OF

7.1	will at all times during the Term:

7.1.1

observe and perform the terms and conditions set out in this Agreement;

7.1.2

consistent with its resource deployment strategy, devote its reasonable commercial efforts to promoting and marketing the Product in the Territory;

7.1.3

conduct its business in a responsible and ethical manner in the Territory and in accordance with all applicable laws, regulations and rules of the Territory, and not do or permit to be done anything that may bring BMI, the Product, the BMI Trademarks and/or the IP Rights into disrepute;

7.1.4

promptly bring to the attention of BMI any complaints it may receive regarding the Product;

7.1.5

not make or give any warranties, guarantees, representations or other commitments in relation to the Product or Services, other than as provided by BMI in writing (including in any Marketing Materials provided by BMI) or approved by BMI in writing;

7.1.6

promptly and diligently follow up on all End User inquiries consistent with ’s current business model and in any event, no less than the obligations agreed to herein;

7.1.7

consistent with its resource deployment strategy, maintain adequate staff trained in and able to fulfill the marketing, distribution and support needs as required under this Agreement;

7.1.8

promote BMI as ’s Preferred Provider for a Spam filtering service. As a “Preferred Provider,” agrees that: (i) when a customer requests a provider for Spam filtering products, it will promote BMI as a preferred Spam filtering product/service provider; and (ii) will refer to BMI as its preferred Spam filtering product/service provider in its public announcements regarding the relationship contemplated by this Agreement.

7.1.9

make each End User aware of the importance of providing BMI with email accounts * by BMI as probe accounts (“Probes”) in connection with BMI’s provision of the Services and to use reasonable commercial efforts to obtain and provide BMI with a list of the Probes for each End User prior to the first distribution of a Rule.

8. TRADEMARK LICENSE

8.1 will require in its agreements with its End Users and Resellers that they: (a) describe and refer to the Product as the Brightmail^® Solution Suite or such other name as BMI may specify; (b) use and apply the BMI Trademarks in relation to the Product in the forms stipulated by BMI and in accordance with

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the guidelines (“Guidelines”) found at http://www.brightmail.com/trademark.html, as updated by BMI from time to time, (if any such Guideline update is material, BMI will supply with adequate notice to ensure ’s proper use of such Guideline update) and any other written directions given by BMI as to the appearance, colors, size and placing of all representations of the BMI Trademarks and their manner of use or application in relation to the Product and in any Marketing Materials and in connection with any promotional activities; (c) ensure that the BMI Trademarks are accompanied by wording to show that they are used with the permission of BMI (the content of such wording, placing and size to be as instructed by BMI or as set out in the Guidelines); and (d) save with the prior written consent of BMI, not offer the Product in any packaging other than that provided by BMI and use, affix or otherwise place such marks, logos, labels, markings or notices on the Product in the form provided by BMI.

8.2 Subject to the terms and conditions in this Agreement, is hereby granted, throughout the Term, a non-exclusive, revocable, royalty-free and fully paid up, restricted right to use the BMI Trademarks in the manner set out in Section 8.1 of this Agreement, and solely in conjunction with the distribution of the Product in accordance with the terms of this Agreement. All representations of the BMI Trademarks that desires to use will be exact copies of those used by BMI or will first be submitted to BMI for its approval. All right, title and interest in and to the BMI Trademarks, all derivations thereof and any other trademark or service mark adopted by BMI to identify the Product, will belong to BMI or its licensors, as the case may be. will not acquire, directly or indirectly, any right, title or interest in or to the BMI Trademarks except as expressly set forth herein and as specified in writing by BMI to from time to time. will not use any BMI Trademarks in a manner inconsistent with the Guidelines and/or the terms of this Agreement. Furthermore, will not register any BMI Trademarks in ’s name, or permit any other third party to register any such BMI Trademarks. acknowledges that any material breach by it of this Section 8.2 is a material breach of this Agreement that is incapable of cure, permitting BMI to terminate this Agreement upon written notice.

8.3 For the avoidance of doubt, BMI will be the sole party permitted to file or prosecute any registration or application for registration for the BMI Trademarks and/or any of the IP Rights. will not do or permit to be done any act which may jeopardize or invalidate any registration (or pending registration) of the BMI Trademarks and/or the IP Rights, nor do any act which might assist or give rise to an application to remove any of the BMI Trademarks and/or IP Rights from all and any applicable registers. will give to BMI any information as to its use of the BMI Trademarks and/or IP Rights that BMI may reasonably require and render any assistance, at BMI’s expense, reasonably required by BMI in maintaining the registrations of any of the BMI Trademarks and/or IP Rights. will, if required by BMI and at BMI’s expense, do all acts reasonably necessary (including executing any necessary documents) for the recording of as a registered user of any appropriate BMI Trademarks and/or IP Rights on all and any applicable registers, and hereby agrees that such entry may be canceled by BMI on the expiry or termination of this Agreement and that it will reasonably assist BMI at BMI’s cost as far as may be necessary to achieve such cancellation (including executing any necessary document).

8.4 Subject to the terms and conditions of this Agreement, BMI is hereby granted a non-transferable, non-exclusive, revocable, royalty-free and fully paid up, restricted license to use ’s trademarks, logos, service marks and trade names (collectively, “ Trademarks”) to identify that is BMI customer on BMI’s website, literature, tradeshow signage, and press releases relating to the Product, all in accordance with the written directions of (if any); provided, that BMI will use artwork and logos in the form provided by and will obtain ’s approval prior to making changes to such artwork or logos. BMI will clearly indicate ’s ownership of the Trademarks. In addition, BMI will be prohibited from registering Trademarks and all derivations thereof in BMI’s name, or permitting any other third party to register any Trademarks or derivations

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thereof. All right, title and interest in and to the Trademarks, all derivations thereof and any other trademark or service mark adopted by to identify its products and services, will belong to or its licensors, as the case may be. BMI will not acquire, directly or indirectly, any right, title or interest in or to the Trademarks except as expressly set forth herein and as specified in writing by to BMI from time to time.

8.5 For the avoidance of doubt, will be the sole party permitted to file or prosecute any registration or application for registration for the Trademarks. BMI will not do or permit to be done any act which may jeopardize or invalidate any registration (or pending registration) of the Trademarks, nor do any act which might assist or give rise to an application to remove any of the Trademarks from all and any applicable registers. BMI will give to any information as to its use of the Trademarks that may reasonably require and render any assistance, at ’s expense, reasonably required by in maintaining the registrations of any of the Trademarks. BMI will, if required by and at ’s expense, do all acts reasonably necessary (including executing any necessary documents) for the recording of BMI as a registered user of any appropriate Trademarks on all and any applicable registers, and BMI hereby agrees that such entry may be canceled by on the expiry or termination of this Agreement and that it will reasonably assist at ’s cost as far as may be necessary to achieve such cancellation (including executing any necessary document).

8.6 From time to time during the term of this Agreement, BMI may desire to use End User’s trademarks, or obtain an End User Case Study, or other similar marketing items in connection with its promotion of the Products. agrees to use reasonable efforts to obtain one or all of the same from the End User that would permit BMI to refer to the End User, solely in connection with that End User’s use of the Products. After proposing such marketing requests to an End User, should the End User refuse, agrees that it will provide BMI with a contact at the End User, if such End User allows to do so, so that BMI may contact the End User directly to obtain permission.

9. FEES AND PAYMENTS

9.1 will pay to BMI a Fee for each Customer reported under the Order or Product Report submitted by with respect to each Product (“Fees”), as further set forth in Exhibit C. BMI will invoice for total fees and payments after the receipt of each Order or Product Report as described in Sections 6.1 and 9.5 of this Agreement. Each invoice will be due and payable net thirty (30) days after the date of the invoice. Fees will equal at a minimum the product of the number of Customers on an End Users email system and either the selective opt-in fees or 100% opt-in annual fee as provided in Exhibit C and section 6 of this Agreement. All Orders, Product Reports and Invoices will be in US Dollars.

9.2 All payments to be made by to BMI under this Agreement will be payable in US Dollars.

9.3 All fees owed by to BMI under this Agreement will be paid in full within thirty (30) calendar days after the date of invoice without any deduction or withholding (whether in respect of set off, defense, deferment, counterclaim, duties, taxes including turnover tax, value added tax, goods and services tax, withholding tax, government charges or legal dues and otherwise whatsoever) unless the deduction or withholding is required by law in relation to tax on the net income of BMI or the employees of BMI, in which case will: (a) notify BMI of any requirement with respect to the deduction or withholding as soon as becomes aware of it; (b) ensure that the deduction or withholding does not exceed the minimum amount legally required; (c) pay to the relevant taxation or other authorities within the period for payment required by applicable law the full amount of the deduction or withholding; and (d) furnish to BMI

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within the period for payment permitted by applicable law an official receipt of the relevant taxation or other authorities in respect of all amounts deducted or withheld.

9.4 All amounts not paid when due under this Agreement will accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted under applicable law.

9.5 will maintain complete, proper, accurate and up-to-date records (`Relevant Records”) of all sales of the Services and of the details of all End Users, including contracts, accounts and support logs regarding: (a) the use of Product by End Users, and (b) ’s compliance with the terms of this Agreement. Such reports will be submitted by to BMI within ten days of BMI’s request of the same. will keep all Relevant Records. BMI will have the right to audit (“Audit”) all such records no more than once per twelve (12) month period throughout the term of this Agreement, to confirm the accuracy of the number of Customers reported to BMI, and compliance with any other terms and conditions of this Agreement. The scope of such audit shall be limited to transactions occurring during the preceding 24-month period For the purposes of the Audit, will ensure that BMI and/or its duly appointed representative will be given access to such principal place of business and to such records and will be entitled to take copies of all such records for the aforesaid purpose. This right will survive one (1) year after termination of this Agreement. Audit will take place during normal business hours and in accordance with ’s standard security procedures. BMI must give reasonable prior written notice to audit in advance of the desired date. The audit will be conducted at BMI’s expense unless such audit reveals an underpayment to BMI in excess of ten percent (10%) for the period being audited, in which case will bear the reasonable expenses of the audit.

9.6 Except as otherwise provided hereunder or as otherwise agreed to in writing between the Parties, each Party is responsible for their own expenses incurred in their performance hereunder. Any costs or expenses incurred by the Parties will be at that Party’s sole risk and upon that Party’s independent business judgment that such costs and expenses are appropriate. For the avoidance of doubt, may not credit any payment of Fees due to any End Users failure to pay.

10. WARRANTIES OF

10.1	represents and warrants to BMI that:

10.1.1

has the capacity to enter into and perform and comply with its obligations under this Agreement.

10.1.2

All actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents, approvals, permits and registration) in order (i) to enable to lawfully enter into and perform and comply with its obligations under this Agreement, and (ii) to ensure that those obligations are valid, legally binding and enforceable.

10.1.3

’s entry into and/or performance of or compliance with its obligations under this Agreement do not and will not violate any law to which it is subject.

10.1.4

’s entry into and/or performance of or compliance with its obligations under this Agreement do not and will not violate any agreement to which it is a party or which is binding on it or its assets.

10.1.5

is solvent and able to pay its dues as and when they fall due and no proceeding has commenced or any action taken or an order made or an effective resolution passed for the dissolution, winding up, reorganization, reconstruction or bankruptcy of or,

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where relevant, for the appointment of a liquidator, liquidation committee, receiver, administrator, trustee or similar officer of or of all or part of its business or its assets.

11. WARRANTIES OF BMI

11.1	BMI represents and warrants to that:

11.1.1

BMI has the capacity to enter into and perform and comply with its obligations under this Agreement;

11.1.2

BMI’s entry into and/or performance of or compliance with its obligations under this Agreement do not and will not violate any agreement to which it is a party or which is binding on it or its assets;

11.1.3

any copies of the Product delivered to will perform substantially in accordance with the Documentation for a period of ninety (90) days from the date of delivery to . BMI’s sole liability and ’s sole and exclusive remedy for any breach of this Section 11.1.3 will be repair or replacement of the Product. Any replacement Product or corrected Product will be warranted for ninety (90) days. These warranties are void if any defect is caused by abuse or misapplication of the Product, whether or not by accident, and except for the foregoing warranty, the Products are provided “AS IS” without any other warranty.

12. WARRANTY DISCLAIMERS; AND LIMITATION OF LIABILITY

12.1 THE EXPRESS WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT ARE THE ONLY WARRANTIES WITH RESPECT TO THE PRODUCT AND ANY PART THEREOF. BMI AND ITS LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES. INCLUDING WITHOUT LIMITATION. WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BMI AND ITS LICENSORS DO NOT WARRANT (a) THAT THE PRODUCT OR ANY PART THEREOF WILL BE FREE FROM DEFECTS, ERRORS OR BUGS, OR (b) THAT THE OPERATION OF THE PRODUCT WILL BE SECURE OR UNINTERRUPTED, OR (c) THAT THE PRODUCT WILL BE ABLE TO PROVIDE OR ATTAIN ANY FEATURES, FACILITIES, FUNCTIONS OR CAPABILITIES, OR (d) THAT ANY RESULTS OR INFORMATION THAT MAY BE DERIVED FROM THE USE OF THE PRODUCT WILL BE ACCURATE, COMPLETE, RELIABLE AND SECURE.

12.2 For any breach of the warranties contained in Section 11.1.3 of this Agreement, ’s exclusive remedy and BMI’s entire liability will be correction of the defect that caused the breach or the re-performance of the non-conforming Services (as the case may be) at the cost and expense of BMI as soon as reasonably practicable. This warranty is made solely to and not to any Reseller or End User.

12.3 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY RECEIVED ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY, WHETHER OR NOT ANY OF THE MATTERS AFORESAID ARISES IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR MISREPRESENTATION OR BREACH OF STATUTORY DUTY OR ANY DUTY UNDER GENERAL LAW OR ANY OTHER LEGAL THEORY. NEITHER PARTY’S ENTIRE LIABILITY TO THE OTHER UNDER THIS AGREEMENT, REGARDLESS OF

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WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR MISREPRESENTATION OR BREACH OF STATUTORY DUTY OR ANY DUTY UNDER GENERAL LAW OR ANY OTHER LEGAL THEORY, (EXCEPT FOR BMI’S DUTY TO INDEMNIFY AGAINST INFRINGEMENT AS PROVIDED IN SECTION 15 BELOW) WILL EXCEED THE AMOUNT OF FEES PAID TO BMI BY DURING THE INITIAL TERM OF THIS AGREEMENT.

13. SUPPORT SERVICES

13.1 Support services shall be provided as set forth in Exhibit D.

14. INDEMNITY

14.1 BMI will defend, indemnify and hold , together with its officers and employees, harmless from any third-party suit or action against to the extent such suit or action is based on a claim that the Product infringes any intellectual property rights of a third party where such rights are valid and existing as of the Effective Date and are enforceable in any Berne Convention member nation; and BMI will pay any judgment, loss, cost or expense (including reasonable attorneys fees and costs) incurred in connection with the defense thereof by . These obligations do not include any claims to the extent they are based on: (i) use of the Product in violation of this Agreement, or (ii) in combination with any other software or hardware (except as specified in the Documentation), or (iii) any modification made to the Product by anyone other than BMI. The indemnity obligations set forth in this section are subject to: (a) giving reasonably prompt written notice to BMI of any such claim(s); (b) BMI having sole control of the defense or settlement of the claim; and (c) at BMI’s request and expense, reasonably cooperating in the investigation and defense of such claim(s). To the maximum extent permitted by applicable law, this section states the entire indemnification obligations and liability of BMI with respect to infringement of any intellectual property rights of a third party. Upon BMI’s sole determination, should the Product become, or be likely to become, the subject of a claim of such infringement, or after the entry of any judgment or order not subject to further appeal, that the use of the Product infringes upon the intellectual property rights of any third party, and that such use of the Product must cease, BMI, at its election may, at its own cost and expense, either (a) procure for the End User the right to continue the use and/or receipt of the Product “as is”; (b) modify the Product in such a way that the use thereof does not infringe upon such intellectual property rights of the third party, provided such modification does not materially alter the functionality or performance of the Product; or if neither of the foregoing are commercially feasible, (c) terminate this Agreement by written notice to and return any pre paid fees for Services not rendered.

14.2 Subject to the provisions of Section 14.1 of this Agreement, will indemnify and hold BMI (together with its officers and employees) harmless from any third-party suit or action against any judgment, loss, cost, or expenses (including reasonable attorneys fees and costs) which may be suffered or incurred by BMI to the extent such suit or action is based on a claim that (i) caused personal injury or death of a third-party, or (ii) the Trademarks infringe the trademarks of any third-party, or (iii) any warranty claims made by End Users for warranties made by that exceed the scope of the warranty expressly set forth herein, or (iv) an act or omission by to the extent authorized by this Agreement. The indemnity obligations set forth in this section are subject to: (a) BMI giving prompt written notice to of any such claim(s); (b) having sole control of the defense or settlement of the claim; and (c) at ’s request and expense, BMI cooperating in the investigation and defense of such claim(s).

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15. TERM

15.1 This Agreement will come into force on the Effective Date, and will continue for a time period specified in Exhibit A attached hereto (“Initial Term”), unless earlier terminated in accordance with Section 17 of this Agreement. Thereafter, if there has been no material breach of the terms of this Agreement by , at ’s option and with BMI’s consent, this Agreement will renew for additional one (1) year periods (“Further terms”) until terminated in accordance with this Section 15 and Section 16 below. will provide BMI with a six (6) month notice not to renew. In the event fails to provide such notice, such Wind-down period will not exceed the six (6) month period following the termination date, in accordance with section 16.4. The Initial Term and Further Term(s), if any, will be referred to as the “Term”.

16. TERMINATION

16.1 If either Party defaults in the performance of any of its material obligations contained in this Agreement, the non-defaulting Party may terminate this Agreement upon at least thirty days written notice if the default is not cured during such notice period. This Agreement may be terminated by one Party immediately at any time, without notice, if any proceeding is commenced or any action taken or an order is made or an effective resolution is passed for the dissolution, winding up, or bankruptcy of the other Party or, where relevant, for the appointment of a liquidator, liquidation committee, receiver, administrator, trustee or similar officer of the other Party of all or a substantial part of its business or its assets.

16.2 Upon termination or expiration of this Agreement, the rights granted to under this Agreement (including for the avoidance of doubt, the rights granted under Sections 2 and 8 of this Agreement) will lapse and terminate, and:

16.2.1 will immediately cease and discontinue, and/or procure the cessation and discontinuance of the use of the Product, the BMI Trademarks, the Confidential Information and the IP Rights and immediately remove from its letterhead, advertising literature and place of business all references to the Product and the BMI Trademarks and will also cease to represent itself as the authorized distributor of the Product;

16.2.2 Within thirty (30) calendar days after such said termination or expiration of this Agreement, will deliver to BMI or destroy all copies of the Software, Documentation, BMI’s Confidential Information, and any other documents, papers, materials or property of BMI which may have in its possession or under its control and will furnish to BMI an affidavit signed by an officer of certifying that, to the best of its knowledge, such delivery or destruction has been fully effected; and

16.2.3 will within 30 days of such said termination or expiration of this Agreement, pay to BMI all amounts outstanding in favor of BMI, unless such sums are due earlier, then by the earlier due date.

16.3 Notwithstanding the foregoing, if this Agreement terminates for any reason, BMI may continue to provide to the applicable End Users the Rule Updates, Updates and Upgrades, as available for the original (or “initial”) term of that End User’s End User License Agreement. Upon termination, BMI will, upon notice to , either: (i) terminate the End User License Agreement, or (ii) give notice to and the End User that BMI will assume performance of all obligations under the End User License Agreement. Distributor agrees that such notice will be binding on and will be deemed, as of the date specified in the notice, to have assigned all its rights and benefits in and to the End User License

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Agreement to BMI or its agent, and the parties will work together in good faith to provide for the orderly transfer of such End Users to BMI.

16.4 Termination will be without prejudice to any accrued right or liability or to any other obligation surviving termination or to any rights or remedies of the Parties under this Agreement or at law. Upon termination or expiration of this Agreement the provisions of Sections 1, 3, 4, 5, 9, 16, 17, 18, 19.1, 19.4, 19.9, 19.12, 19.13, and all payment obligations incurred prior to the effective date of such termination or expiration will survive. All other provisions of this Agreement will terminate. In the event that this Agreement is terminated for any reason other than ’s uncured material breach, then BMI agrees that may continue using the Product subject to all the terms contained in this Agreement for a period not to exceed six (6) months following the termination date or until the expiration of its End User License, but in no event will such a period exceed one (1) year from the termination date (Wind-down Period). For termination due to non-renewal, the Wind-down Period will not exceed six (6) months following the termination date. ’s obligations to BMI for the payment of Fees due will not be relieved by the effective termination of this Agreement under such circumstances. At the end of such Wind-down Period, or immediately in the case of termination due to ’s uncured breach, shall cause End Users to immediately cease use of the Product and either return or destroy all copies of the Product.

17. CONFIDENTIALITY.

Each Party agrees to maintain all Confidential Information of the other Party in confidence to the same extent that it protects its own similar Confidential Information (and in no event using less than a reasonable degree of care) and to use such Confidential Information only as permitted under this Agreement. The receiving Party will not provide the Confidential Information of the disclosing Party to any third party, nor may it disclose such information to any employee of the receiving Party, except for the purpose of performing this Agreement, and unless such person has entered into an agreement with the receiving Party containing confidentiality provisions covering the Confidential Information that are at least as restrictive as those set forth in this Agreement. For purposes of this Agreement “Confidential Information” will mean audio, visual, oral or physical information marked “Confidential” or could reasonably be considered of a proprietary or confidential nature, provided that for information disclosed orally, a written summary of such information is provided to the receiving Party within thirty days of initial oral disclosure; and provided that email probe addresses, information disclosed in design reviews and any pre-production releases of the Product provided by BMI will be considered Confidential Information whether or not marked as such. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information. The foregoing restrictions on disclosure and use will survive for three (3) years following termination of this Agreement but will not apply with respect to any Confidential Information which (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without reference to the Confidential Information; and (iv) the receiving Party is compelled to disclose pursuant to a court order or the requirements of any stock exchange; provided that the receiving Party has given the disclosing Party reasonable notice and opportunity to contest such compulsion to disclose.

18. GENERAL PROVISIONS

19.1 Any notice or demands required or permitted by this Agreement must be in writing and must be sent personally or by facsimile, recognized commercial overnight courier, or pre-paid registered or certified mail. Notices will be addressed as set forth in Exhibit A attached hereto. Any Party may change its address or facsimile for the purposes hereof by written notice to the other Party. Notices will be effective (a) if delivered personally, on the date of delivery; (b) in the case of domestic mail, if transmitted by pre-paid mail, on the date falling seven (7) days after posting, provided that it will be sufficient to show that the envelope

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containing such notice or information was properly addressed and sent by pre-paid post and that it has not been returned to sender to prove that such notice or information has been duly sent; (c) in the case of international mail, if transmitted by prepaid registered air-mail, on the date falling fourteen (14) days after posting; provided that it will be sufficient to show that the envelope containing such notice or information was properly addressed and sent by prepaid post and that it has not been so returned to the sender to prove that such notice or information has been duly sent; and (d) if transmitted by facsimile, on the date of transmission, provided that it will be sufficient to show that the facsimile has been dispatched with the appropriate answer back code received to prove that such facsimile has been duly sent.

19.2 The waiver by either Party of a breach of or a default under any provision of this Agreement will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. No amendment or modification of any provision of this Agreement will be effective unless in writing and signed by a duly authorized signatory of BMI and .

19.3 Neither Party may assign or otherwise transfer any of its rights, obligations or licenses hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any purported transfer or assignment in violation of this section will be void. Notwithstanding the foregoing, either Party may assign this Agreement without consent (i) to any entity in which the Party has a greater than 50% equity ownership interest or of which the Party has voting control, (ii) to any entity that buys 50% or more of that Party’s stock or all or substantially all of that Party’s assets, or (iii) as part of a merger, reorganization or re-incorporation; provided, however, the non-assigning party may terminate this Agreement upon thirty (30) days’ written notice within sixty (60) days following an assignment. Subject to the foregoing, the provisions of this Agreement will apply to and bind the successors and permitted assigns of the Parties.

19.4 This Agreement will be governed in all respects by the substantive laws of the State of California, United States of America (excluding conflict of laws rules) as applied to agreements entered into and to be performed entirely within the State of California between California residents, without regard to the U.N. Convention on Contracts for the International Sale of Goods. Any dispute regarding this Agreement will be subject to the non-exclusive jurisdiction of the California state courts in and for San Francisco County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California), and the Parties agree to submit to the personal and non-exclusive jurisdiction and venue of these courts.

19.5 understands that BMI is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of BMI to provide the Product or other materials, as well as any technical assistance, will be subject in all respects to such United States laws and regulations and will from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the Department of Commerce, International Trade Administration, or Office of Export Licensing. warrants that it will comply in all respects with any export and re-export restrictions and obtain an export license (if necessary) for the marketing and distribution of the Product by . Each Party will comply with all applicable laws, rules and regulations in its performance under this Agreement.

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19.6 The relationship of the Parties under this Agreement is that of independent contractors, and no agency, partnership, joint venture, or employment is created as a result of this Agreement and neither nor its agents have any authority of any kind to bind BMI in any respect whatsoever.

19.7 The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.

19.8 If the application of any provision or provisions of this Agreement to any particular facts of circumstances will be held to be invalid or unenforceable by any court of competent jurisdiction, then: (a) the validity and enforceability of such provision or provisions as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby; and (b) such provision or provisions will be reformed without further action by the Parties, to and only to, the extent necessary to make such provision or provisions valid and enforceable when applied to such particular facts and circumstances; and, in any event, the remainder of this Agreement will remain in full force and effect.

19.9 If any exchange control or other restrictions prevent or threaten to prevent remittance to BMI of any money owed under this Agreement, will immediately notify BMI in writing and follow BMI’s instructions in respect of the money to be paid, including if required, depositing the same with any bank or other person at such location as may be designated by BMI.

19.10 Either Party will be excused from any delay or failure in performance hereunder, except the payment of monies by to BMI, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labour disputes and strikes, riots, war, shortages, and governmental regulations. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.

19.11 Upon the prior written approval of the Parties, the Parties will issue a joint press release announcing the relationship, and agrees to allow BMI to use ’s name in such release, and agrees to participate in such press release by providing favorable comments from an appropriate employee with respect to the Product. BMI agrees to allow to use BMI’s name in such release, and agrees to participate- in such press release by providing favorable comments from an appropriate employee with respect to the Product and BMI’s relationship with . In addition, will be invited to participate from time to time, in its sole discretion, in any press launch event organized by BMI.

19.12 The Parties acknowledge that any breach of certain provisions of this Agreement may cause the other Party irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, both Parties will have, in addition to any other rights and remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any breach or violation of this Agreement.

19.13 The remedies under this Agreement are cumulative and not exclusive of any other rights or remedies whether provided by law or otherwise.

19.14 This Agreement, including the Exhibits attached hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all proposals or prior agreements whether oral or written, and all communications between the Parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom. The pre-printed terms and conditions on any purchase order or other written instrument submitted by either Party will have no force and effect and are hereby rejected. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument.

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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement effective as of the Effective Date.


BRIGHTMAIL, INC.

By:		By:

	Signature		Signature
Name:	Mike Irwin	Name:
Title:	VP Finance	Title:
Date:	, 2002	Date:	, 2002

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[Exhibit to Exhibit G - EXHIBIT A]

LICENSE

1.	THE PRODUCT

a. Software: Anti-Spam

b. Services: Rules, Rule Updates, and support services throughout the Term of this Agreement, such Rule Updates to be automatically or, if necessary, manually provided by BMI to End Users utilizing the then in effect BMI general, tested and production grade method for rule distribution. Updates and Upgrades, if any, will be provided to , for ’s subsequent distribution to its End Users. If notifies BMI, in ’s sole discretion, that a particular End User is to be removed from Service (for non-payment or otherwise), BMI will no longer provide Rule Updates to such End User.

c. Any and all Documentation related to the Software and Services.

d. Any and all Marketing Materials and Training Materials.

2.	LICENSES GRANTED TO FOR USE ON ’S MAIL PLATFORM.

Initial Term: 2 years from deployment date of the first End User License Agreement. will provide BMI written notice of such date.

Territory: worldwide, except for Afghanistan, Cuba, Iran, Iraq, Libya, North Koreas, Sudan, Syria and other Embargoed countries as updated by the U.S. government, throughout the term of the Agreement.

Support Servers: BMI will provide with one copy for ’s use in accordance with Section 2.2.

For use on End User’s Sun Solaris operating system, only.

3.	NOTICES. Below is the contact information for the Parties:

If to :

If to BMI:

Attention:

Daphne L. Holly

301 Howard Street, 18^th Floor

San Francisco, CA 94105

Fax: 415 348-9636

Fax:

4.	Relationship Managers:

For Brightmail:

415-365-

email address: @brightmail.com

For :

email address:

CONFIDENTIAL TREATMENT REQUESTED

[Exhibit to Exhibit G - EXHIBIT B]

Minimum Terms and Conditions for End User License Agreements

1.	Third Party Beneficiary. Brightmail, Inc. (“BMI”) shall be a direct and intended third-party beneficiary under this Agreement.

Intellectual Property Rights. The Software is subject to copyright laws and international copyright treaties and is the intellectual property of BMI or its licensors. End User shall not copy, reproduce, use, perform, publicly display or allow access to the Software, shall not distribute the Software, and shall not, nor shall it or permit any third party to modify, adapt, translate or prepare derivative works from the Software, or decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software.

Audit. and BMI will have the right, exercisable not more than once every twelve (12) months, to inspect upon reasonable notice and during End User’s regular business hours, End User’s relevant records to verify End User’s compliance with the terms of this Agreement and/or Distributor’s compliance with its obligations to BMI.

NO OTHER WARRANTIES. , BMI, AND/OR THEIR RESPECTIVE SUPPLIERS, PROVIDE THE SOFTWARE, INCLUDING ACCOMPANYING MATERIALS, “AS IS” AND DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE, INCLUDING THE ACCOMPANYING MATERIALS. AND BMI DO NOT WARRANT THAT THE SOFTWARE, INCLUDING ANY OF ITS DOCUMENTATION, ARE ERROR-FREE, THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED, OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF END USER, AND HEREBY DISCLAIM ANY AND ALL LIABILITY ON ACCOUNT OF ANY OF THE FOREGOING. THE ABOVE LIMITATION SHALL APPLY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.

LIMITATION OF LIABILITY. IN NO EVENT WILL , BMI OR THEIR RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF , BMI OR THEIR RESPECTIVE LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, , BMI AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. , BMI AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE FEE PAID BY END USER TO DISTRIBUTOR UNDER THIS AGREEMENT.

6.	End User Agreements. Require, or have required, by contract, that each End User agree to terms, that are no less restrictive than the End User Agreement (“EUA”), which can be found at

CONFIDENTIAL TREATMENT REQUESTED

http://www.brightmail.com/end_user_agreement.html. Notwithstanding anything contained herein to the contrary, End User will indemnify, defend, and hold BMI harmless from and against any and all claims, losses and liabilities (including reasonable and incurred attorneys’ fees) arising from or otherwise due to a breach or alleged breach by End User of this Section.

7.	Probes. Provide BMI, with , created for , all of which are found on *. The following apply to End User Probes:

i) End User agrees to provide * of all * found on * and * or *, whichever is greater, for BMI’s use in detecting content-related risks and for use in BMI’s internal research and development efforts.

ii) BMI will receive the End User Probes from End User within * of the Effective Date of the agreement between End User and .

iii) , End User and BMI will consider the End User Probes Confidential Information, notwithstanding anything contained herein to the contrary. The Parties’ obligations of confidentiality pertaining to the End User Probes will remain in effect for a period of * after the termination date of this Agreement. End User may not themselves, or through a third party, use the End User Probes for any purpose without the express written consent of BMI.

End User specifically warrants that it will not process Spam in such a way as to negatively impact the Product, as determined by BMI in its sole discretion. Specifically, End User agrees that if it chooses to delete Spam instead of offering its Customers BMI’s Gray Mail Service, End User will not send any error-type messages to the senders of the Spam, notifying them that the Spam did not reach Customer(s), or otherwise alerting the sender of Spam to the presence of the Product. In addition, End User also agrees to defend, indemnify, and hold BMI harmless from any third-party suit (including suits brought by Customers) if End User deletes Spam without giving its Customer(s) a reasonable chance to review the Spam.

CONFIDENTIAL TREATMENT REQUESTED

[Exhibit to Exhibit G – EXHIBIT D PRODUCT SUPPORT]

shall be responsible for taking first call from End Users (“First Line Support”) and shall not refer any End User callers to Brightmail. Brightmail shall be responsible for providing back up technical support (“Second Line Support”) to . Support/maintenance shall start upon product acceptance by the End User. Support/maintenance fees shall be payable to Brightmail if and only if the End User contracts for support from . Brightmail’s support/maintenance fees for Second Line Support to are set forth in Exhibit B.

2	The parties agree to use the following procedure to resolve support/maintenance problems with respect to the Product:

2.1

will first attempt to isolate the source and nature of the problem using resources reasonably at its disposal. If investigation indicates the problem may be caused by a fault in the Product, will collect pertinent information necessary for resolution, and use commercially reasonable efforts to resolve the problem. If can not resolve the problem, it will collect the pertinent information that may assist and expedite resolution, and then report the problem and information by telephone or in writing (email accepted) to Brightmail as set forth herein.

2.2

Brightmail and shall reasonably and in good faith assign a priority to the problem. Brightmail shall use commercially reasonable efforts in responding to the problem with a Product workaround or patch, closing the problem with a Product update or upgrade, and reporting status, as follows:


Priority	Log Call	Response Time	Closure Time	Status Report
		(Work Around)	(Product Fix)
Critical	2 Hours	Two (2) Business Days	Ten (10) Business Days	Weekly, Daily for escalated sites

Non-Critical	24 Hours	Eight (8) Business Days	First Major or Minor At Product Release after ’s the next Thirty (30) request Business Days

It is recognized by (2) Business Days that such level of effort will not always result in a problem’s resolution according to the above timetable. For the purpose of this paragraph: “Critical” shall mean use of the Product is severely impacted or stopped; “Non-Critical” shall mean use of the Product is ongoing; and “Business Day” shall mean a day during which Brightmail conducts its regularly scheduled business operations, excluding holidays observed by Brightmail.

CONFIDENTIAL TREATMENT REQUESTED

2.3.

Brightmail will provide the following Product support/maintenance services to at no additional charge to fees stated in Exhibit B:

2.3.1

Access to Brightmail’s technical support personnel for problem resolution. Said personnel shall be available for telephone contact Monday – Friday, 8 a.m. to 5 p.m. PST time, on normal business days. Brightmail shall also make available, on a twenty-four (24) hour three-hundred-sixty-five (365) days per year basis, a means of reporting errors or failures in the Product, by electronic mail, or voice mail;

2.3.2

The right to use the software for support/maintenance purposes at no charge. Brightmail shall provide one (1) copy of each Product purchased and or licensed by and may copy such Product, object code only, but only for the purpose of providing End User support/maintenance;

2.3.3

One (1) copy of the user manuals and/or Product documentation made generally available to other resellers or End-Users for all Product purchased and or licensed by , may copy such Product documentation, but only for the purpose of providing End User support/maintenance;

2.3.4

One (1) copy of all available or released support documentation (e.g., technical bulletins and data sheets) made generally available to other resellers or End-Users for all Product purchased and or licensed by , may copy such support documentation, but only for the purpose of providing End User support/maintenance;

2.3.5

Access to any electronic technical bulletin board or “web page” containing the above information;

2.3.6

One (1) copy of all Product workarounds, patches and corrections and/or access to the same through an electronic means and the right to distribute to End-Users which has under a current support/maintenance contract;

2.3.7

One (1) copy of all updates/upgrades and/or access to same through an electronic means and the right to distribute to End-Users which has under a current support/maintenance contract; and

2.3.8

Support of the current release/version of the Product, and support of one (1) release/version back, for a period not to exceed 12 months from the date of the release of the current release/version. For example, the current release upon signing of the Agreement is release 3.0. Brightmail’s obligation of Support will not be for any versions earlier than 2.1.

2.4

Brightmail’s obligations to provide service and resolve problems under this section shall extend only to such problems duly reported by and which Brightmail, using reasonable efforts, is able to duplicate.

2.5

Brightmail agrees to give one-hundred-twenty (120) days prior notice of Product discontinuance. Brightmail will support products obsoleted for a period of one (1) year after Product discontinuance.

CONFIDENTIAL TREATMENT REQUESTED

EXHIBIT H

REDACTED VERSION OF THE AGREEMENT AS OF THE AMENDED DATE FOR

NOTICE TO

RESELLERS OF REQUIREMENT TO COMPLY WITH TERMS