Agreement

DIRECT RESELLER AGREEMENT
This Direct Reseller Agreement is made as of ___________ __, 2015 (Effective Date) by and between Proofpoint, Inc.
(Proofpoint), a Delaware corporation, with offices at 892 Ross Drive, Sunnyvale, CA 94089 USA and
(Reseller), a
, with an office at
.
Territory: means the following countries:
Bookings: Reseller bookings target for the Initial Term of this Agreement = US$
(minimum US$300,000).
Notice: For Proofpoint: ATTN: General Counsel; address above or fax: 408.517.4711.
For Reseller: ATTN:
fax:
email:
This agreement and any addenda or exhibits attached hereto constitute the entire agreement (Agreement) between the parties
concerning Resellers use of the Proofpoint Products. Notwithstanding any language to the contrary therein, no terms stated in a
purchase order or in any other order document (other than a statement of work or other order document mutually executed by
authorized signatories and expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void.
This Agreement replaces and supersedes any prior or contemporaneous verbal understandings, written communications or
representations.
PROOFPOINT, INC.
RESELLER
By:_________________________________
By:
Printed:_____________________________
Printed:
Title:_______________________________
Title:
Date:_______________________________
Date:
TERMS AND CONDITIONS

1.
DEFINITIONS
1.1
Appliance(s) means the hardware appliance(s)
has completed all pre-sales activity and for which Resellers
containing the Software.
sales activity is limited to accepting such Leads purchase order
1.2
Confidential Information has the meaning set
for Proofpoint Products.
1.9
Intellectual Property Rights means patent rights
forth in Section 11.
1.3
Customer means a customer who purchases
(including patent applications and disclosures), copyrights,
Proofpoint Products from Reseller or the person or entity to which
Marks, trade secrets, know-how and any other intellectual
the Services are ultimately provided
property rights recognized in any country or jurisdiction in the
1.4
Customer Agreement means either (i) the clickwrap
world.
1.10
Initial Term shall mean the first subscription period of
license agreement between Proofpoint and a Customer that is
included in the Proofpoint Products or (ii) a written agreement
a Customer Agreement for a subscription based Proofpoint
between Proofpoint and a Customer governing such use of the
Product that is specified on Resellers purchase order for such
Proofpoint Product.
Customer.
1.5
Demonstration Equipment means Appliances used
1.11.
Lead means the name of a prospective Customer
by Reseller (i) to demonstrate Proofpoint Products; (ii) to allow
that has not previously acquired Proofpoint Products that is
potential Customers to evaluate Proofpoint Products; (iii) for
provided to Reseller by Proofpoint.
1.12
Mailbox means a separate account on a Customers
Resellers internal training purposes; and (iv) to provide technical
support to Customers.
e-mail server for the receipt of messages or data within such
Customers e-mail system or network. Aliases and distribution
1.6
Documentation
means
the
standard
user
lists shall not be counted as separate mailboxes provided each
documentation for the Proofpoint Products that Proofpoint makes
person who has access to such aliases and distribution lists has
generally available to its customers.
a separate account on a Customers email server for the receipt
1.7
Extension Term means each additional period for
of messages or data within such Customers e-mail system or
which a Customer Agreement for a subscription based
network.
Proofpoint Product, is extended pursuant to Section 2.3.2.
1.8
Fulfillment Lead means a Lead for which Proofpoint
ProofpointDirectResellerAgt_rev20150225
Proofpoint Confidential and Proprietary
1.13
Marks means Proofpoints trademarks, service
marks, trade names, service names, logos and designations in
or associated with Proofpoint Products or services.
1.14
Ordering
Information
means the following
information that must appear on each Reseller purchase order:
(i) a reference to this Agreement; (ii) the Customer name and
contact information (including telephone number and email
address); (iii) type, quantity and price of the Proofpoint Products
(including the number of Mailboxes purchased); (iv) shipping
location, (v) Initial Term; and (vi) requested delivery date.
1.15
Price Change Effective Date means the date thirty
(30) days after written notice (which may be via email) to
Reseller by Proofpoint of price changes for the Proofpoint
Products or changes to the Reseller Discount.
1.16
Price List means Proofpoints then current price list
for the Territory, a current copy of which is posted on
Proofpoints partner portal.
1.17
Proofpoint Products means the Proofpoint Products
on the Price List.
1.18
Proofpoint
Services
means
Proofpoint
maintenance, support and consulting services.
1.19
Prospect means a prospective sales opportunity that
Reseller identifies and registers with Proofpoint in accordance
with Section 5.7.
1.20
Public Sector Customer means a Customer that is
part of the federal or a state government, including agencies and
services thereof, or educational institutions.
1.21
Public Software" means any software that contains,
or is derived (in whole or in part) from, any software that is
distributed as free software, open source software or similar
licensing or distribution models. Software does not include Public
Software.
1.22
Reseller Discount means the discount off the Price
List for Resellers designated reseller level as posted on
Proofpoints Partner Portal, which may provide differentiation
based on reseller level, registered versus unregistered deals,
and product category, among other things. Discounts, levels,
deal registration and product categories may be updated at
Proofpoints sole discretion on its Partner Portal from time to
time. Proofpoint authorized discounts are subject to participation
and adherence to Proofpoints Deal Registration Program.
Proofpoints Deal Registration Guidelines are available for review
at Proofpoints Partner Portal. All discounts are to be calculated
as a discount off of Proofpoints commercial list price. You are
encouraged to review the Proofpoint Partner Portal at least
monthly to see the most current discount tables.
1.27
Term means the Initial Term of a Customer
Agreement and any Extension Term of such Customer
Agreement.
1.28
Territory means the geographic area specified on
above.
1.29
Work Product means all work product developed or
created by Proofpoint during the course of providing Services
pursuant to Exhibit A attached hereto.
2. APPOINTMENT AND GRANT OF LICENSE
2.1 General. Prior to distributing and selling Proofpoint Products
and Proofpoint Services, Proofpoint requires that all of its
channel partners register with Proofpoint and qualify to resell
Proofpoint Products.
2.2 Appointment. Proofpoint hereby appoints Reseller as its
non-exclusive reseller of the Proofpoint Products in the Territory.
Reseller hereby accepts such appointment and agrees to resell
the Proofpoint Products in accordance with the terms and
conditions of this Agreement.
2.3 Grant of License. Subject to all the terms of this Agreement
and compliance therewith, Proofpoint grants Reseller a nonsublicensable, non-transferable, non-exclusive, right to: (i)
market, distribute, demonstrate and use the Proofpoint Products
under the terms of this Agreement; and (ii) resell the Appliance
and the Software to Customers located and taking delivery within
the Territory solely for such Customers internal use. Reseller
may resell the Software on a subscription basis and only for use
on the number of Appliances, computers and/or servers and
Mailboxes which are solely operated and accessed by Customer
and for which Reseller has paid Proofpoint the applicable
Subscription Fees. Nothing herein constitutes a sale of, or
transfer of, title to, any Software. If Reseller requests that
Proofpoint delivers the Proofpoint Products to Reseller for
delivery to a Customer, Reseller shall provide the Proofpoint
Products to Customers exactly as ordered and received from
Proofpoint and shall not remove, modify or otherwise tamper with
the Proofpoint Products or any package containing the
Proofpoint Products, other than as expressly permitted under this
Agreement. As a condition to purchasing or licensing the
Proofpoint Products, the Initial Term for each Customer must be
a minimum subscription term of one (1) year.
2.3.1 Limitation on Initial Term Licenses. All purchases
by the Reseller of Initial Term licenses must be solely for a
Customers first use of a Proofpoint Product for a specific group
of their users. Initial Term licenses may not be purchased to
continue the use of a Proofpoint Product by the Customer for an
existing group of users. For further clarification, if the Customer
has, in the past, purchased a specific Proofpoint Product for a
specific group of users and the Customer would now like to
purchase this same Proofpoint Product for a new set of users,
then the Reseller may purchase Initial Term licenses for this
same Proofpoint Product for these new users. If the Customer
has, in the past, purchased a specific Proofpoint Product for a
specific set of users and the Customer would now like to
purchase a new Proofpoint Product for these existing users, then
the Reseller may purchase Initial Term licenses for this new
product for these existing users. In both cases, Proofpoint
reserves the right to require that the Customer purchase these
licenses with an Initial Term that is coterminous with any existing
1.23
Direct Reseller Program Guide means the then
current policies and procedures posted on Proofpoints partner
portal that describe Resellers participation in Proofpoints
partner program.
1.24
Software means the object code form of the
proprietary software products owned or distributed by Proofpoint,
including any Software Updates and upgrades thereto, excluding
Public Software.
1.25
Software Updates means updates, modifications, or
new releases of the Software that Proofpoint generally makes
available at no additional charge to its customers who are
subscribing to support services and who are current in payment
of support fees.
1.26
Subscription Fees mean the annual fees paid by a
Customer for the right to use subscription based Proofpoint
Products purchased by Customer and receive support during the
applicable Term.
Proofpoint licenses that were purchased by the Customer in the

past.
trade designations on or to the Proofpoint Products. Reseller

acknowledges and agrees that Proofpoint owns the Marks and
that any and all goodwill and other proprietary rights that are
created by or that result from Resellers use of a Mark hereunder
inure solely to the benefit of Proofpoint. Reseller will at no time
apply to register any Mark, trade name or other designation that
is confusingly similar to any Mark. Reseller shall promptly advise
Proofpoint of the use of any mark infringing any of the Marks.
Upon any termination or expiration of this Agreement, Reseller
will have no further right to use any Mark.
2.3.2 Extension Terms. Proofpoint will be responsible

for offering orders for Extension Terms to Customers on fees
and terms to be agreed between Proofpoint and Customer.
Unless otherwise agreed by Proofpoint and Reseller pursuant to
Section 5.2.1, Proofpoint will be responsible for fulfilling such
orders and invoicing and collecting all Subscription Fees for
Extension Terms.
2.6 Ownership. Reseller acknowledges and agrees that the

Software, Work Product and all software programs embodied in
the Proofpoint Products, Documentation and all copyright,
patent, trade secret and other proprietary rights therein and
thereto shall vest at all times in and are and will remain the sole
and exclusive property of Proofpoint and its suppliers or
licensors.
2.3.3 Evaluation Units. Reseller may provide a

reasonable number of royalty-free Proofpoint Products to
Customers or prospective Customers solely for purposes of
evaluation (no production use) for a reasonable time period not
to exceed sixty (60) days. Such evaluation copies of the
Proofpoint Products shall be licensed pursuant to Proofpoints
click through evaluation terms and conditions. In the event a
Customer or prospective Customer who has been granted the
right to use Proofpoint Products on a trial basis elects to acquire
such Proofpoint Products for productions use, Reseller will
submit the applicable order paperwork in accordance with
Section 5.5. Reseller shall be responsible for returning to
Proofpoint all evaluation copies of Proofpoint Products that are
not purchased by Customers. If Reseller does not return any
evaluation copies of Proofpoint Products within thirty (30) days of
the expiration of the evaluation period for a Customer or
prospective Customer, Reseller shall pay Proofpoint the
purchase price for such Products in accordance with the pricing
terms of this Agreement.
2.7 Reserved Rights. Proofpoint reserves the right, from time to

time, and without obligation or liability to Reseller, to: (i) change
the Proofpoint Products; (ii) add to or delete from the list of the
Proofpoint Products specified in the Price List; (iii) change or
terminate the level or type of service or support that Proofpoint
makes available for the Proofpoint Products; and (iv) update or
modify the Direct Reseller Program Guide; provided, that any
such changes will not be effective until thirty (30) days after
written notice (which may be via email) of any such changes.
Proofpoint reserves the right to market the Proofpoint Products,
directly or indirectly, to any end user or customer worldwide,
including through distribution channels, including distributors,
original equipment manufacturers, resellers, and dealers.
2.4 License Restrictions. Except as otherwise permitted under

this Agreement, Reseller will not and will not allow any third
party to: (i) reverse engineer or otherwise attempt to discover
any source code or underlying ideas or algorithms of the
Software except to the extent permitted by applicable law,
(ii) modify, translate, or otherwise create derivative works of the
Software; (iii) copy any Software, in whole or in part, or
distribute or transfer Proofpoint Products except as provided
herein; (iv) rent, lease, provide or make the functionality of the
Software available to third parties by means of hosting,
application services provider, service bureau, time sharing or
any other type of services without Proofpoints express prior
written consent; (v) allow the removal, alteration, covering or
obscuring of any notice or Mark that appears on the Proofpoint
Products or on any copies or media; or (vi) appoint third parties
to market, sublicense or otherwise distribute the Proofpoint
Products except as otherwise expressly permitted herein.
2.8. Public Software. Use of Public Software is subject to the

terms and conditions of the license agreement provided with the
Public Software. In the event no such agreement is provided, the
Public Software is provided "AS IS" and Proofpoint (i) makes no
warranty of any kind or nature regarding Public Software; and (ii)
shall if no event be liable to any party for any damages which in
any way arise out of or relate to Public Software. To the extent
applicable for certain Public Software, Proofpoint will make the
source code available, upon Resellers written request. This
offer to obtain a copy of certain Public Software source code is
valid for three years from the date of delivery of the applicable
Public Software.
2.9 Translations. Reseller acknowledges that Proofpoint will
provide the Documentation and marketing materials to Reseller
in the English language. Reseller may, with Proofpoints prior
written consent, translate such marketing materials and
Documentation into the local language(s) within the Territory for
distribution to Customers provided that: (i) all proprietary notices
contained in the original copies of the Documentation are
reproduced and included in all translated copies and (ii) that
Customers are informed that the translated copies are courtesy
copies of the documentation only and the Documentation for the
Proofpoint Products remain the English versions. Reseller may,
upon prior written approval by Proofpoint, which shall not be
unreasonably withheld, use a third party to perform such
translations, provided that such third party is bound by nondisclosure obligations which are at least as protective of
Proofpoints rights in the Documentation as provided in this
Agreement. If Reseller translates Proofpoint marketing materials
or Documentation, Reseller acknowledges that Proofpoint retains
2.5 Trademark License. Subject to Resellers compliance with

the terms and conditions of this Agreement, Proofpoint grants to
Reseller a non-exclusive, non-transferable license to use the
Marks, during the term of this Agreement, solely in connection
with marketing, promotion, resale and distribution of the
Proofpoint Products. Any such use of a Mark by Reseller must
correctly attribute ownership of such Mark to Proofpoint or its
suppliers and licensors and must be in accordance with
applicable law and Proofpoints then current Mark usage
guidelines. Upon Proofpoints request, Resellers advertising,
marketing or promotional materials in which a Mark is used will
be submitted to Proofpoint for its prior written approval, which
shall not be unreasonably withheld. Reseller will not remove or
obscure any Marks on or in the Proofpoint Products as delivered
to Reseller, and will not attach any additional Marks, logos or
all right, title and interest in all such translated marketing

materials and Documentation. In addition, at Proofpoints
request, Reseller agrees to promptly provide, at no cost, to
Proofpoint marketing materials and Documentation translated
pursuant to this Section 2.9 and Reseller agrees to cease use of
translated versions of the marketing material or Documentation if
in Proofpoints reasonable judgment such translations are not
accurate translations of the marketing materials or
Documentation provided by Proofpoint to Reseller. Unless
otherwise agreed to in writing by Proofpoint, Resellers may not
translate, localize, or internationalize the Software for distribution
to any third party.
the Proofpoint Products in media that is distributed both within

and outside of the Territory.
3.6
Annual Business Plan. Reseller agrees to use its best
efforts to develop and implement the sales and marketing
programs defined on the Direct Reseller Program Guide that are
applicable to Resellers level.
3.7
Demonstration Equipment. Upon execution of this
Agreement, Reseller may purchase a reasonable number of
Appliances to use as Demonstration Equipment at the price
specified in the Reseller Program Guide. Each Demonstration
Equipment unit is granted a no charge 250 Mailbox license
during the term of this Agreement to use the Software in
conjunction with the Demonstration Equipment for purposes
specified in Section 1.5.
3. OBLIGATIONS OF RESELLER
3.1 Customer Agreements. Reseller shall only sell, license or
otherwise make available Proofpoint Products pursuant to a
Customer Agreement. The Customer Agreement shall be
provided in an unmodified form to Customers. Reseller may not
modify the Customer Agreement.
Sale of the Proofpoint
Products to a Customer will become effective only when such
Customer has entered into a Customer Agreement with
Proofpoint. Proofpoint will not accept Resellers purchase order
for a Customer order or provision hosted Proofpoint Products to
a Customer until such time that such Customer and Proofpoint
have entered into a Customer Agreement. In the event Reseller
becomes aware that a Customer has breached any terms and
conditions of a Customer Agreement where such breach
adversely affects Proofpoints rights and contractual protections,
Reseller will notify Proofpoint promptly of any such breach
3.8 Bookings Target. Reseller will use its best efforts to meet
the bookings target specified above, if any, in accordance with
the terms described in the Direct Reseller Program Guide.
Reseller bookings target is based on Prospect orders accepted
by Proofpoint as defined in Section 5.5 of the Agreement.
Reseller bookings target for renewal terms shall be equal to or
greater than the bookings target defined above for the Initial
Term. If Reseller fails to meet the bookings target, then
Proofpoint may either terminate this Agreement in accordance
with Section 14 or reduce the Reseller Discount.
4.
OBLIGATIONS OF PROOFPOINT
4.1 Shipment and Delivery. Provided Proofpoint has received all
ordering documents required under this Agreement, Proofpoint
shall ship the Proofpoint Products ordered by a Customer in
accordance with the shipping instructions received from Reseller.
Proofpoint shall use its commercially reasonable efforts to deliver
the Proofpoint Products according to mutually agreed upon
delivery schedules and in accordance with Section 6.
3.2 Training and Personnel Resource Requirements. Reseller

will use its best efforts to meet the training and technical
certification requirements described in the Direct Reseller
Program Guide. If Reseller fails to meet the training and
certification requirements within the timeframes set forth in the
Direct Reseller Program Guide, then Proofpoint shall be entitled
to immediately either reduce Resellers Discount or terminate
this Agreement in accordance with Section 14.
4.2 Software Updates. Provided the applicable fees have been

paid, Proofpoint shall make available through electronic download
to Customers all Software Updates.
3.3 Marketing Obligations. Reseller agrees to use its best efforts

to develop and implement the sales and marketing programs
defined in the Direct Reseller Program Guide. Reseller agrees
that it will not (i) make any representations, warranties, or
guarantees related to the Proofpoint Products other than those
contained in the Documentation or otherwise authorized in
advance in writing by Proofpoint; (ii) participate with industry
analysts to perform reviews of the Proofpoint Products without
Proofpoints prior written authorization; or (iii) permit the
Proofpoint Products to be distributed to a direct competitor of
Proofpoint.
4.3 Marketing and Technical Material. Proofpoint shall make

available to Reseller the marketing and technical material outlined
in the Direct Reseller Program Guide. Upon prior written approval
from Proofpoint, Reseller may modify the contents of the
marketing literature provided by Proofpoint. Reseller agrees to
abide by any request by Proofpoint to withdraw or change any
such modification that Proofpoint reasonably deems undesirable.
4.4 Training. Proofpoint shall provide training to Reseller on the
features, functions, operation and installation of the Proofpoint
Products as outlined in the Direct Reseller Program Guide.
3.4 Resellers Business Practices. Reseller shall (i) comply with

all applicable laws and regulations, (ii) avoid deceptive,
misleading or unethical practices, and (iii) conduct business in a
manner that reflects favorably at all times on the Proofpoint
Products and Proofpoints goodwill and reputation.
4.5 Marketing Support. Proofpoint agrees to provide to Reseller

market support activities outlined in the Direct Reseller Program
Guide, or otherwise agreed to in writing by Proofpoint.
3.5 Promotion in Territory. Reseller shall use its best efforts to

assure that the territorial restrictions of the license set forth
herein are honored. Reseller will not engage sales staff or
distribution centers for the Proofpoint Products outside of the
Territory. Reseller will not advertise, promote or solicit orders for
the Proofpoint Products outside of the Territory, provided that the
foregoing will not be deemed to prohibit Reseller from advertising
5.
PAYMENTS, TAXES, ORDERS AND LEADS
5.1 Fees. Except as expressly provided otherwise in this
Agreement, the prices for an Initial Term for the initial sale of
Proofpoint Products by Reseller to a Customer, Lead or Prospect
and for the support and training services provided by Proofpoint
will be as set forth in the Price List, less the Reseller Discount. In
addition, from time to time both parties may agree to a special
discount for the purpose of closing a sale to a Customer, or for

promoting certain bundles or packages created for the Territory
that are not listed in the Price List. Any such special discount
shall be set forth in writing (which may be by email) between the
parties. In the event Reseller refers a Customer to Proofpoint
and Proofpoint sells Proofpoint Products to such Customer, the
parties shall mutually agree on referral fees to be paid to
Reseller for such referral.
booking target specified in Section 3.8, and (iv) notifies

Proofpoint about each Customer renewal 60 days prior to the
renewal term, Reseller shall be responsible for invoicing
Customers for Subscription Fees due for Extension Terms. If
Reseller has not met the requirements set forth in (i) through (iv)
in the preceding sentence, then Proofpoint shall be responsible
for invoicing and collecting renewal fees from such Customer.
Any renewal fees collected by Proofpoint will not be counted as
bookings paid by Reseller to Proofpoint. If Proofpoint and
Reseller agree that Reseller will fulfill a Customer order for an
Extension Term, Proofpoint and Reseller shall agree on the
pricing to be charged by Proofpoint to the Reseller for such
Extension Term. Reseller shall then be responsible for invoicing
the Customer for the fees due for such an Extension Term, and
Sections 5.2-5.5 will govern the transaction between Proofpoint
and the Reseller.
5.1.1
All prices are stated in U.S. dollars. Proofpoint
may change the Price List at any time upon thirty (30) days
notice to Reseller, in its sole discretion, provided that any such
change will be effective hereunder only upon the Price Change
Effective Date and Software price increases will only be
applicable at the end of any existing Customer Agreement Term
during which such price increase is effective. All purchase orders
received and accepted by Proofpoint prior to the Price Change
Effective Date will be invoiced at the price in effect as of the date
of Proofpoints acceptance of Resellers purchase order,
provided that such purchase orders specify a shipment date
thirty (30) days or less from the Price Change Effective Date.
Reseller may cancel any purchase orders that specify a
shipment date more than thirty (30) days from the Price Change
Effective Date, without penalty, by providing notice to Proofpoint
within ten (10) days following Proofpoints notice of a price
increase. The foregoing notwithstanding, if no later than ten (10)
business days after the Price Change Effective Date Reseller
delivers to Proofpoint a list of Customer quotations furnished to
potential Customers prior to such Price Change Effective Date,
then for a period of ninety (90) days after the Price Change
Effective Date the prices in effect prior to the price increase shall
apply to any orders relating to such Customer quotations.
Reseller shall determine its own prices for the Proofpoint
Products in connection with sale or license of Proofpoint
Products to Customers.
5.3 Late Payments. All amounts not paid when due will accrue
interest at the lower of 1.0% per month or the highest rate
permissible by applicable law. Reseller will promptly reimburse
Proofpoint for all reasonable costs and expenses (including
reasonable attorneys fees) incurred by Proofpoint in connection
with collecting any overdue amount. Reseller may not setoff
against Proofpoints invoices amounts that Reseller claims are
due to it under this Agreement or otherwise.
5.4 Taxes and Costs. Reseller shall pay all value added, sales,
use or withholding tax or any similar taxes, duties or levies,
which may apply to the Proofpoint Products and Reseller may
not deduct any of the foregoing from amounts owed to
Proofpoint hereunder. Proofpoint is responsible for payment of
any tax based on Proofpoints net income or property. Reseller
shall pay all shipping and transportation charges, taxes, duties
and other fees imposed on Proofpoint Product purchases and
sales hereunder. In the event Proofpoint pays any such
amounts, Reseller shall reimburse Proofpoint therefore promptly
upon Proofpoints request. Reseller represents and warrants that
no currency control laws applicable in the Territory prevent the
payment to Proofpoint of any amounts due under this
Agreement.
5.2 Payment Terms. Proofpoints standard payment terms

require payment thirty (30) days from the date of Proofpoints
invoice; provided that Proofpoint reserves the right to change its
payment terms at any time (including, without limitation, requiring
payment in advance or requiring Reseller to have issued an
irrevocable letter of credit) if, in Proofpoints reasonable opinion,
Resellers credit history, financial condition or payment record so
warrants. In addition, Reseller shall provide any credit
information required by Proofpoint prior to Proofpoint shipping
any Proofpoint Products to Reseller or a Customer. Subscription
Fees for the Initial Term accrue when the Appliance and/or
Software is shipped by Proofpoint to Reseller or Customer, as
applicable , regardless of whether or not Reseller or Customer
has installed the Proofpoint
Products. Reseller shall be
responsible for invoicing and collecting fees for the Proofpoint
Products from Customers. All fees are non-cancelable, and upon
payment, all fees are non-refundable regardless of whether a
subscription license is terminated prior to the end of the Term.
Reseller shall not be relieved of its obligations to pay fees owed
to Proofpoint hereunder by the nonpayment of such fees by a
Customer.
5.5 Orders and Acceptance. For each transaction in which

Proofpoint Products are licensed or sold by Reseller to a
Customer, Reseller shall submit a purchase order or other
ordering document containing the Ordering Information. Except
for Ordering Information, any terms and conditions in any
purchase order that are inconsistent with or in addition to the
terms and conditions of this Agreement are hereby rejected by
Proofpoint and will be deemed null and of no effect, even if
Proofpoint accepts or acknowledges such purchase order.
5.6 Leads. Within five (5) business days of being provided a
Lead by Proofpoint, Reseller shall notify Proofpoint whether or
not it intends to pursue a transaction for the sale of Proofpoint
Products to such Lead in accordance with the procedures
outlined on
Proofpoints partner portal. If Reseller elects to
pursue such Lead, Reseller shall provide to Proofpoint
information regarding the disposition of such Lead in accordance
with the terms described on the Proofpoint partner portal. If
Reseller has either not provided Proofpoint notice that it has
elected to pursue a Lead, or if Reseller fails to meet its
obligations specified on the Proofpoint partner portal regarding
pursuing potential business with a Lead, then Proofpoint may
provide such Lead to another partner.
5.2.1 Renewal Fees. Payment for renewal Subscription

Fees is due upon the effective date of each Extension Term,
provided that no Extension Term may exceed thirty-six (36)
months.
Provided Reseller (i) is current in its payment
obligations under this Agreement; (ii) is fulfilling any Customer
support obligations specified herein; (iii) is current in meeting its
elects to install Proofpoint Products in accordance with this

Section 8.1 and unless Reseller contracts with Proofpoint to
provide any portion of such installation services, Proofpoint shall
have no responsibility for installation of the Proofpoint Products.
5.7 Prospects. Reseller agrees to use Proofpoints online

registration tool to register Prospects. Reseller will submit an
online registration form for such Prospect in accordance with the
registration guidelines specified on the Proofpoint partner portal.
Proofpoint will review each registration submitted by Reseller
and will provide written approval or rejection of such Prospect
registration (which may be via email) within ten (10) business
days of Proofpoints receipt of the registration. If, in Proofpoints
sole discretion, Reseller is not meeting its obligations (as
specified on the Direct Reseller Program Guide) with regard to
completing a transaction with such Prospect, then Proofpoint
may withdraw Resellers registration for the Prospect, provided
that such withdrawal shall not prohibit Reseller from pursuing a
business transaction with such Prospect.
8.2 Customer Support by Reseller. Provided that Reseller is

certified by Proofpoint to provide support to Customer, Reseller
is responsible for providing level 1 and level 2 support to all
Customers. For purposes of this Agreement, level 1 and level 2
support shall consist of (i) receipt and acknowledgment of a
problem from a Customer; (ii) checking lists of known problems
and workarounds; (iii) if the reported problem is known, giving
the published answer to the Customer and assisting with the
implementation of the solution; (iv) isolation, identification, and
reproduction of an unknown problem reported by an Customer;
(v) researching a workaround or other solution to an unknown
problem; and (vi) working with Proofpoint technical support to
assist in the development of a workaround or fix. Reseller will
provide prompt and comprehensive pre-sales and post-sales
support services for the Proofpoint Products to Customers.
Reseller will staff its support help desk with individuals who are
qualified to respond to Customers requests for technical support
and who are fluent in English or who can effectively converse in
English. If Reseller is not providing level 1 and level 2 support to
Customers, then Reseller shall be responsible for ensuring that
each Customer signs Proofpoints support agreement in the form
posted on Proofpoints partner portal.
6. SHIPMENT AND DELIVERY

6.1 Shipment. Proofpoint will ship the Appliance F.O.B.
Proofpoints shipping point. Shipments will be made to Resellers
identified Ship to address as specified on Resellers purchase
order or carrier, subject to Proofpoints written approval prior to
shipment. Unless specified in an accepted purchase order,
Proofpoint will select the carrier. Reseller will be responsible for
and will pay all packing, shipping, freight and insurance charges.
Title to the Appliance and all risk of loss of or damage to the
Proofpoint Products will pass to Reseller upon delivery by
Proofpoint to the carrier. Unless Reseller provides Proofpoint
with express instructions to the contrary prior to shipment,
Proofpoint may make partial shipments on account of Reseller's
purchase orders, to be separately invoiced and paid for when
due. Any delay in the delivery of any installment will not relieve
Reseller of its obligation to accept the remaining deliveries.
8.3 Proofpoints Support Obligations. If Reseller is providing

level 1 and level 2 support to Customers, Proofpoint shall be
responsible for providing level 3 support directly to Reseller in
accordance with this Section 8.3. For purposes of this
Agreement, level 3 support shall consist of working with
Resellers technical support engineers to assist in the
development of a workaround and/or fix. Proofpoint shall have
no obligation to support the combination, operation or use of
Proofpoint Products with any product not furnished by
Proofpoint. Proofpoint shall not have any support obligations with
respect to errors caused by any customized or modified
Proofpoint Product if such errors would not have resulted from
the unmodified, stand-alone Proofpoint Product. Proofpoint shall
have no obligation to accept support requests directly from
Customers. Any direct requests for Customer support of the
Proofpoint Products received by Proofpoint will be referred to
Reseller.
6.2 Delivery. Proofpoint will use its commercially reasonable

efforts to meet the delivery dates specified in Proofpoints written
acceptance of Resellers purchase orders, but in no event will
Proofpoint be liable for any losses, damages or penalties
resulting from any delay in shipment or delivery. Reseller must
inspect all Proofpoint Products promptly upon receipt, and may
reject any defective item by returning such item in accordance
with Proofpoints then current return policy. Any Proofpoint
Products not rejected within 10 days of receipt by Reseller will
be deemed accepted by Reseller. Proofpoint will be responsible
for shipping and insurance costs for rejected Proofpoint
Products.
7. FORECAST, REPORTS AND AUDITS
7.1 Forecasts. Reseller agrees to use its best efforts to develop
and implement the forecast and reporting requirements defined
on the Direct Reseller Program Guide.
9. SERVICES. Any professional services provided by either

Proofpoint or Reseller shall be subject to the term and conditions
of Exhibit A. The schedule for such services will be agreed upon
by the parties, subject to availability of Providers personnel, and
reflected in an order form.
7.2 Certification of Compliance. Within thirty (30) days after a

request from Proofpoint, Reseller shall provide to Proofpoint a
written statement from an officer of Reseller certifying that
Reseller is in compliance with all material terms of this
Agreement, including without limitation, its reporting and fee
payment obligations. Any underpayment of fees disclosed by any
such certification shall be paid to Proofpoint, together with the
applicable late payment charges, upon demand.
10. REPRESENTATIONS AND WARRANTIES
8. INSTALLATION, MAINTENANCE AND SUPPORT

8.1 Installation by Reseller. If Reseller has been certified by
Proofpoint to install Proofpoint products, Reseller may elect to
install Proofpoint products at Customer locations. If Reseller
10.1 Reseller Warranties. Reseller represents and warrants

that: (i) Reseller has the unrestricted right and authority to
enter into and perform this Agreement; (ii) no consent of any
other person, entity or governmental authority or agency is
needed to market or re-sell the Proofpoint Products as
contemplated hereunder; and (iii) its use or resale or
sublicensing of the Proofpoint Products does not and will not
violate any applicable laws, including without limitation any
applicable competition or antitrust
it does not introduce any denied person or entity into Proofpoint

systems.
10.2.4. Governmental Approvals.
If applicable,
Reseller represents and warrants that it has obtained all
required approvals of the government within a given territory of
distribution in connection with this Agreement and that the
provisions of this Agreement and the rights and obligations of
the parties hereunder, are enforceable under the laws within the
territory of distribution.
10.2
Reseller Conduct and Compliance with Laws.

10.2.1 Conduct.
Reseller shall not engage in any
deceptive, misleading or unethical practices that are or might be
detrimental to Proofpoint, the Proofpoint Products or any third
party, and otherwise shall conduct its business in its own name
and in such a manner as will be reasonably expected to reflect
favorably at all times on the Proofpoint Products and the good
name, goodwill and reputation of Proofpoint.
10.2 Proofpoint Warranty. Proofpoint has and shall have all

requisite ownership, rights and licenses to perform its obligations
under this Agreement fully as contemplated hereby and to grant
to Reseller all rights specified herein with respect to the
Proofpoint Products and intellectual property rights to be granted
hereunder. This Agreement constitutes a valid and binding
obligation of Proofpoint enforceable in accordance with its terms.
10.3 Limited Software Warranty. Proofpoint warrants only to
Reseller that, for a period of ninety (90) days after the Software
is provided to Reseller, the Software will be capable of
performing in all material respects in accordance with the
functional specifications set forth in the Documentation. As
Resellers sole and exclusive remedy and Proofpoints entire
liability for any breach of the foregoing warranty, Proofpoint will,
at its option: (i) promptly correct any Software that fails to meet
this limited warranty; (ii) provide Reseller with a reasonable
procedure to circumvent the nonconformity; or (iii) terminate the
license for the non-conforming Software. If Proofpoint terminates
the license under this section, Proofpoint shall reimburse
Reseller for any amounts paid to Proofpoint for such Software.
10.2.2 Foreign Corrupt Practices Act; Compliance

with Law. Reseller has an obligation to comply with all applicable
laws and regulations which apply from time to time to the
promotion and sale of Proofpoint Products and any applicable
Proofpoint goods and services, including but not limited to the
Foreign Corrupt Practices Act, all US and international antibribery laws and all US export, trade and sanctions programs
laws. Neither Reseller nor any of its employees, contractors or
agents may make an offer, payment, promise to pay, or authorize
payment, or offer a gift, promise to give, or authorize the giving of
anything of value for the purpose of influencing an act of decision
of an official of any foreign government or the U.S. government
(including a decision not to act) or inducing such a person to use
his/her influence to affect any such governmental act or decision
in order to assist in obtaining, retaining or directing any business.
A foreign governmental official shall include any person holding
an executive, legislative, judicial or administrative office, whether
elected or appointed, or of any public international organization,
such as the United Nations or the World Bank, or any person
acting in any official capacity for or on behalf of such
government, public enterprise or state-owned business, any
political party or party official, any political candidate or any
person or entity who Reseller knows or has reason to believe will
give part of any part of any payment to any of the aforementioned
categories of people for such purpose. Should Reseller have any
further questions about FCPA, Reseller may visit the Department
of Justice website at www.usdoj.gov/criminal/fraud/fcpa.
10.4 Limited Appliance Warranty. Proofpoint warrants only to

Reseller that the Appliance will be free from defects in materials
and workmanship and materials, under normal intended use, for
one year from the original shipment date. Resellers sole and
exclusive remedy and Proofpoints entire liability for any breach
of the foregoing warranty is to ship a replacement Appliance. If
the Appliance is damaged due to negligence or neglect, Reseller
will be responsible for all shipping and repair costs. Otherwise,
Reseller will responsible for shipping costs to Proofpoint and
Proofpoint will be responsible for shipping the replacement
Appliance to Reseller. At the time of shipping, Proofpoint will
issue an invoice to Reseller for the replacement Appliance.
Proofpoint will issue a credit memo against such invoice upon
receipt of the failed Appliance. Any Appliance that is replaced
becomes the property of Proofpoint. Proofpoint will not be
responsible for Resellers or any third partys software, firmware,
information, or data contained in or stored on any Appliance
returned to Proofpoint, whether under warranty or not.
10.2.3. Export Control.

Reseller understands and
acknowledges that Proofpoint is subject to regulation by agencies
of the United States government, including but not limited to, the
U.S. Department of Commerce, which prohibits export or
diversion of certain products and technology to and business
dealings with certain countries, territories and entities. Reseller
warrants that (i) it will comply with applicable laws, including
export, re-export and foreign policy controls and restrictions
(including any applicable U.S. sanctions programs) to ensure that
neither the Proofpoint Products nor any direct product thereof or
technical data related thereto is exported or re-exported directly
or indirectly in violation of any such laws, or used for any
purposes prohibited by any such laws; and (ii) it will implement
reasonable reseller, customer opportunity, lead, purchase order,
shipping and/or delivery screening processes to ensure that it is
in compliance with such laws and regulations and to ensure that
10.5 Disclaimer and Indemnity. The Proofpoint products are

warranted only to Reseller, and Reseller shall not extend any
warranties for or on behalf of Proofpoint or Proofpoint suppliers
or licensors to Customers or any other third parties.
10.6 Warranty Disclaimer. EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH ABOVE, PROOFPOINT AND
PROOFPOINT SUPPLIERS AND LICENSORS DISCLAIM ANY
AND ALL OTHER WARRANTIES, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, INCLUDING
WITHOUT
LIMITATION
REGULATORY
COMPLIANCE,
PERFORMANCE,
ACCURACY,
RELIABILITY,
AND
NONINFRINGEMENT. PROOFPOINT DOES NOT WARRANT
THE ACCURACY OF THE INTENDED EMAIL BLOCKING OF
ANY MAIL MESSAGE, THE SOFTWARE OR APPLIANCE WILL
MEET RESELLERS OR CUSTOMER REQUIREMENTS OR
THAT NO EMAIL WILL BE LOST OR THAT THE SOFTWARE
WILL NOT GIVE FALSE POSITIVE OR FALSE NEGATIVE
RESULTS. PROOFPOINT DOES NOT WARRANT THE
OPERATION
OF
THE
SOFTWARE
WILL
BE
UNINTERRUPTED OR ERROR-FREE. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS
AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE
FOREGOING LIMITATIONS MAY NOT APPLY TO RESELLER.
11.5. Termination of Agreement. Upon any termination of this

Agreement, the Receiving Party shall continue to maintain the
confidentiality of the Disclosing Party's Confidential Information
and, upon request, return to the Disclosing Party or, (at the
Disclosing Party's election), destroy all materials containing such
Confidential Information.
12. INDEMNIFICATION
12.1 General Indemnity. Each party shall defend the other in,
and indemnify the other against, any claim or action of a third
party resulting from the negligence or willful misconduct of the
indemnifying party or its employees, agents, or representatives ,
bodily injury, death or damage to tangible property or claims
based on violation of any applicable of law or regulation.
11. CONFIDENTIALITY
11.1 Confidential Information.
As
used
herein,
"Confidential Information" means all confidential and proprietary
information of a party ("Disclosing Party") disclosed to the other
party ("Receiving Party"), whether orally or in writing, that is
designated as confidential or that reasonably should be
understood to be confidential given the nature of the information
and the circumstances of disclosure, including the terms and
conditions of this Agreement (including pricing and other terms
reflected in Schedules), the Software, passwords and access
controls provided by Proofpoint for access to the Proofpoint
Products business and marketing plans, technology and
technical information, product designs, and business processes.
Confidential Information shall not include any information that: (i)
is or becomes generally known to the public without breach of
any obligation owed to Disclosing Party; (ii) was known to
Receiving Party prior to its disclosure by Disclosing Party without
breach of any obligation owed to Disclosing Party; (iii) was
independently developed by Receiving Party without breach of
any obligation owed to Disclosing Party; or (iv) is received from a
third party without breach of any obligation owed to Disclosing
Party.
12.2 Proofpoint Intellectual Property Indemnity. Proofpoint will (i)

defend Reseller against any suit or proceeding by a third party to
the extent based on a rightful claim that the Proofpoint Products
in the form created by Proofpoint and sold to Reseller pursuant
to this Agreement (the Indemnified Products) directly infringes
any valid U.S. patent or copyright, in the Territory, and (ii) pay
any damages awarded in such suit or proceeding as a result of
such claim (or pay any settlement of such claim), provided that
Reseller will promptly notify Proofpoint in writing of the third party
claim, suit or proceeding (in any event, within thirty (30) days
after Reseller becomes aware or reasonably should have been
aware of such claim); authorizes and allows Proofpoint to have
sole control of the defense and/or settlement of the claim; and
provides any information, assistance and other cooperation
reasonably requested by Proofpoint in connection with the claim,
suit or proceeding.
12.3 Injunctions. In the event of a claim relating to an
Indemnified Product, Proofpoint will, at its sole option and
expense: (a) procure for Reseller the right to continue to use and
resell and, if and as applicable, for Customers the right to use
the Indemnified Products under the terms of this Agreement; (b)
replace or modify the Indemnified Products to be (or to make it
more likely to be) non-infringing; or (c) if the foregoing options
are not reasonably practicable, then Proofpoint may terminate
Resellers rights to use and resell Indemnified Products and
refund all amounts paid by Reseller to Proofpoint attributable to
Customers future usage or access to the Indemnified Products
hereunder.
11.2
Disclosure. Receiving Party shall not disclose or use
any Confidential Information of Disclosing Party for any purpose
outside the scope of this Agreement, except with Disclosing
Party's prior written consent. Receiving Party shall protect the
confidentiality of Disclosing Party's Confidential Information in
the same manner that it protects the confidentiality of its own
confidential information of like kind (but in no event using less
than reasonable care). Receiving Party shall promptly notify
Disclosing Party if it becomes aware of any actual or reasonably
suspected breach of confidentiality of Disclosing Party's
Confidential Information.
12.4 Indemnity Exclusions. Proofpoint shall have no liability for,

and the aforementioned Proofpoint obligations shall not apply to
any claim based on or relating to (1) the use of the Indemnified
Products in combination with any other product, service or
device, if such infringement claim would have been avoided by
the use of the Indemnified Products without such other product,
service or device; (2) any modification or adaptation to the
Indemnified Products; (3) use or resale of an Indemnified
Products other than as expressly authorized pursuant to this
Agreement or pursuant to applicable Proofpoint Documentation;
(4) use or resale of the Indemnified Products by Reseller after
Proofpoint has made available to Reseller a modified version or
replacement for the Indemnified Products or has provided notice
to Reseller that a claim of infringement has been or may be
made with respect to the Indemnified Product; (5) specifications,
instructions, features, functions or designs or other elements
provided by or requested by Reseller; or (6) the practice of any
process or method relating to the Customers use of the
Indemnified Products..
11.3 Authorized Disclosure. If Receiving Party is compelled by

law to disclose Confidential Information of Disclosing Party, it
shall provide Disclosing Party with prior notice of such compelled
disclosure (to the extent legally permitted) and reasonable
assistance, at Disclosing Party's cost, if Disclosing Party wishes
to contest the disclosure.
11.4 Injunctive Relief. If Receiving Party discloses (or threatens
to disclose) any Confidential Information of Disclosing Party in
breach of confidentiality protections hereunder, Disclosing Party
shall have the right, in addition to any other remedies available to
it, to seek injunctive relief to enjoin such acts, it being
acknowledged by the parties that any other available remedies
may be inadequate.
FRAUDULENT
PARTY.
12.5 Limitation. THE FOREGOING PROVISIONS OF THIS

SECTION 12 SET FORTH PROOFPOINTS SOLE AND
EXCLUSIVE OBLIGATIONS AND RESELLERS SOLE AND
EXCLUSIVE REMEDIES, WITH RESPECT TO, ANY CLAIMS
REGARDING THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS OF ANY KIND.
TO
THE
OTHER
13.3 Disclaimer of Liability to Customer. PROOFPOINT

AND ANY THIRD PARTY PROVIDER TO PROOFPOINT
DISCLAIMS ANY AND ALL LIABILITY TO ANY
CUSTOMER UNDER THIS AGREEMENT.
12.6 Reseller Indemnity. Reseller agrees to defend indemnify

and hold Proofpoint and its directors, employees, and agents
harmless from and against all liabilities, damages, costs, fees
and expenses, including reasonable attorneys fees, incurred as
a result of: (i) any representations, warranties, guarantees, or
other written or oral statements made by or on behalf of Reseller
relating to the Proofpoint Products other than those specified in
the Documentation or as expressly authorized by Proofpoint in
writing; (ii) the failure of Reseller to resell the Proofpoint Products
in accordance with this Agreement; or (iii) any use by a
Customer of any product not licensed by Proofpoint but used in
conjunction with the Proofpoint Products, if liability would have
been avoided by the exclusive use of the Proofpoint Products.
Resellers indemnification obligations hereunder are contingent
upon Proofpoint (a) promptly giving written notice of the claim to
Reseller; (b) giving Reseller sole control of the defense and
settlement of the claim (provided that Reseller may not settle or
defend any claim unless it unconditionally releases Proofpoint of
all liability); and (c) provides to Reseller, at Resellers cost, all
reasonable assistance.
14. TERM AND TERMINATION

14.1 Term. Unless otherwise terminated in accordance with the
terms of this Section 14, upon expiration of the initial one (1)
year term of this Agreement, this Agreement will renew
automatically for additional one (1) year renewal terms unless
either party gives notice to the other in writing of its intention to
terminate no later than 30 days prior to the end of the initial term
or a renewal term.
14.2 Payment Breach. Except as otherwise provided herein,
Proofpoint may terminate this Agreement prior to its expiration in
the event Reseller fails to cure any breach of a payment
obligation hereunder within ten (10) days after written notice from
Proofpoint describing the breach.
14.3 Termination for Cause. Either party may terminate this
Agreement at any time if (i) a receiver is appointed for the other
party or its property, (ii) the other party makes an assignment for
the benefit of its creditors generally, (iii) proceedings are
commenced by or for the other party under any applicable
bankruptcy, insolvency, or debtors relief law, (iv) the other party
liquidates or dissolves or attempts to do so, (v) the other party
assigns or purports to assign or transfer this Agreement in
breach of its provisions, or (vi) the other party commits any other
breach of a material obligation hereunder which it fails to cure
within 15 days of written notice or which is by its nature
incurable. Proofpoint may terminate this Agreement if Reseller is
merged or consolidated, sells all or substantially all of its assets,
or is subject to any substantial change in management or
control.
13. LIMITATION OF LIABILITY.

13.1 Limitation of Liability. EACH PARTYS AGGREGATE
LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT
DAMAGES UNDER THIS AGREEMENT THAT SHALL IN NO
EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR
PAYABLE BY RESELLER TO PROOFPOINT IN THE 12
MONTHS PRIOR TO THE ACT OR OMISSION GIVING RISE
TO THE CLAIM.
TO THE EXTENT PERMITTED BY
APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE
CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR
SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES
(INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL,
SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST
PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR
LOSS OF BUSINESS INFORMATION) ARISING IN
CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH
POSSIBILITY WAS REASONABLY FORESEEABLE.
14.4 Effect of Termination or Expiration. Resellers right to resell

the Proofpoint Products to new Customers or renew terms of
existing Customer Agreements for Extension Terms will
terminate immediately upon the effective date of termination or
expiration of this Agreement. Upon termination of this Agreement
any licenses for the Proofpoint Products sold by Reseller in
accordance with this Agreement prior to date of termination shall
continue in accordance with the terms of the Customer
Agreement, as long as there is no breach thereof. Except as
otherwise provided in this Section 14.4, upon termination or
expiration of this Agreement for any reason: (i) Reseller shall
immediately cease using and shall deliver to Proofpoint, the
Documentation, as well as any unused sales literature and other
written information and materials supplied by Proofpoint pursuant
to this Agreement or that contain Proofpoints Marks; (ii) Reseller
shall immediately cease to identify itself as a provider of
Proofpoint Products or otherwise affiliated in any manner with
Proofpoint; (iii) no later than 10 days after expiration or
termination, Reseller shall return all Proofpoint Confidential
Information; (iv) the due dates of all outstanding invoices to
Reseller for the Proofpoint Products will automatically be
accelerated so they become due and payable on the date of
termination or expiration, even if longer terms had been provided
previously; (v) all purchase orders or portions thereof remaining
undelivered on the date of termination or expiration will
13.2 Exceptions to Limitation of Liability. THE FOREGOING

LIMITATION OF LIABILITY IN SECTION 13.1 SHALL NOT
APPLY TO ANY BREACH OF THE INTELLECTUAL
PROPERTY RIGHTS IN SECTION 2, ANY BREACH OF
SECTION 11 (CONFIDENTIALITY), ANY BREACH OF
SECTION 10 (REPRESENTATIONS AND WARRANTIES), ANY
BREACH
OF
EITHER
PARTYS
INDEMNIFICATION
OBLIGATIONS UNDER SECTION 12, ANY BREACH OF
RESELLERS
OBLIGATION
TO
MAKE
PAYMENTS
PURSUANT TO THE AGREEMENT, ANY DAMAGES CAUSED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF A PARTY OR ITS AGENTS, ANY DAMAGES ARISING
FROM BODILY INJURY OR DEATH THAT IS CAUSE BY A
PARTYS NEGLIGENCE OR THAT OF ITS EMPLOYEES OR
AGENTS; OR ANY DAMAGES CAUSED BY A PARTYS
MISREPRESENTATION
automatically be canceled; and (vi) Reseller will cease using the

Marks and promoting and advertising the Proofpoint Products.
Upon termination of this Agreement and request by Proofpoint,
Reseller will cooperate with, and provide reasonable assistance
to Proofpoint in order to facilitate an undisrupted transition of the
support of the Proofpoint Products installed at Customers to
Proofpoint or another organization designated by Proofpoint. If
Reseller transitions support in accordance with the foregoing
sentence, Reseller will pay to Proofpoint pro-rated unused
Subscription Fees received from such Customers. If this
Agreement is terminated by Reseller or by Proofpoint and
Proofpoint does not request Reseller to transition support as
specified above, (a) Reseller shall continue to provide support to
Customers for the remaining subscription terms of existing
Customer Agreements; and (b) Reseller shall continue to pay
support fees to Proofpoint in accordance with the terms of this
Agreement; and (c) Proofpoint shall continue to provide support
for the Proofpoint Products in accordance with its support
obligations specified in this Agreement . Upon the earlier of (i)
termination of this Agreement and transition of Resellers support
obligations to Proofpoint, or (ii) expiration of Resellers Customer
support obligations specified in this Section 14.4 Reseller shall
immediately cease using and shall deliver to Proofpoint or
destroy, all copies of the Software (including partial copies) and
the Documentation, and return any Appliances provided by
Proofpoint for which Reseller has not paid the applicable fees.
either party to create or assume any obligation on behalf of the

other party for any purpose whatsoever.
15.3 Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes any prior and
contemporaneous oral or written understanding as to the subject
matter hereof.
15.4 Amendments; Waivers. This Agreement may be modified
only in writing signed by both parties. A waiver of any provision
or breach is no waiver of any other provision or breach.
15.5 Force Majeure. Neither party will be liable to the other for
its failure to perform any of its obligations hereunder during any
period in which such performance is delayed by circumstances
beyond its reasonable control including, but not limited to
earthquake, fire, flood, war, embargo, strike, riot, inability to
secure materials and transportation facilities, or the intervention
of any governmental authority.
15.6 Verifying Compliance. Reseller shall keep all usual and
proper books and records relating to its performance of this
Agreement during the term of this agreement and for three (3)
years thereafter (or longer as may be required by law or
regulation). This standard takes into account the accounting
rules, regulations, authoritative pronouncements, principles and
practices accepted in Resellers jurisdiction. During this same
period, Proofpoints audit team may conduct audits of Resellers
applicable books, records, reports, operations, processes and
facilities during any selected period to verify Resellers
compliance with the terms of this Agreement. Reseller will
promptly correct any errors and omissions disclosed by the
audits.
14.5 No Damages upon Termination. Reseller acknowledges

and agrees that Proofpoint will not be liable to Reseller for
damages of any kind that Reseller may incur as a result of any
termination of this Agreement by Proofpoint, as permitted
hereunder, or the expiration of this Agreement. RESELLER
WAIVES ANY RIGHTS IT MAY HAVE TO RECEIVE ANY
COMPENSATION OR INDEMNITY UPON TERMINATION OR
EXPIRATION OF THIS AGREEMENT UNDER THE LAWS OF
THE TERRITORY OR OTHERWISE, OTHER THAN AS
EXPRESSLY PROVIDED IN THIS AGREEMENT.
Any audit will be conducted during Resellers normal business

hours. It will not interfere unreasonably with Resellers normal
business activities. Reseller will provide Proofpoint with access
to all applicable books, records, operations, processes and
facilities that Proofpoint may need to review. If an audit is
conducted with notice, Reseller will have all applicable books,
records and operations available to Proofpoint at the beginning of
the audit. This does not limit Proofpoints right to seek other
remedies as well. If the audit team makes any commercially
reasonable recommendations to Reseller on record keeping, it
will implement the recommendations within a timeframe to which
both parties agree.
14.6 Obligations on Termination. Termination of this Agreement

will not relieve the obligation of Reseller to pay any balances
due hereunder. The provisions of Sections 1, 2.4, , 5.2 (with
respect to fees incurred prior to termination), 10, 11, 12, 13 and
15 will survive any termination of this Agreement, and all other
rights and obligations, including without limitation Resellers
rights under Section 2.1 and 2.2, will terminate.
15. MISCELLANEOUS
15.1 Assignment. Reseller may not assign or transfer this
Agreement, in whole or in part, by operation of law or otherwise,
without Proofpoints express prior consent. Any attempt to assign
or transfer this Agreement, without such consent, will be null and
of no effect. For purposes of this Agreement, a change of control
will be deemed to be an assignment. Subject to the foregoing,
this Agreement will bind and inure to the benefit of each party's
permitted successors and assigns.
15.7 Publicity. The terms of this Agreement are confidential. No

press release or other like publicity regarding this Agreement
may be made without the other partys approval.
15.8 Notices. All notices and other communications hereunder
will be given in writing and delivered (i) by personal delivery, by
prepaid overnight or courier service to the addresses set forth
herein, or (ii) by facsimile to such facsimile number as may be
provided in writing by a party. Notices are deemed given on
receipt or attempted delivery (if receipt is refused). The foregoing
notwithstanding, Price Change and new product notices to
Reseller will be given via email.
15.2 Independent Contractors. The relationship of Proofpoint

and Reseller established by this Agreement is that of
independent contractors. This Agreement does not give either
party the power to direct and control the day to day activities of
the other, nor create any fiduciary relationship between the
parties nor deem or constitute the parties as partners, joint
venturers, co-owners, principal-agent, employer-employee or
otherwise participants in a joint or common undertaking, or allow
15.9 Governing Law. This Agreement shall be governed and

construed under the laws of California without reference to
conflict of law principles. The parties expressly agree that the
10
United Nations Convention on Contracts for the International

Sale of Goods will not apply.
15.10 Attorneys Fees. In the event of any litigation or arbitration
hereunder, the arbitrator or court shall award costs and
reasonable attorneys fees to the prevailing party.
15.11 Injunctive Relief. Each party acknowledges that any
breach of its obligations with respect to the proprietary rights of
the other party or such party's suppliers or licensors may cause
such other party irreparable injury for which there may be
inadequate remedies at law and that such other party and its
suppliers and licensors will be entitled to seek injunctive relief, in
addition to all other remedies available to it.
15.12 Severability. The terms of this Agreement are severable. If
any term hereof is held invalid, illegal, or unenforceable for any
reason whatsoever, such term will be enforced to the fullest
extent permitted by applicable law, and the validity, legality, and
enforceability of the remaining terms shall not in any way be
affected or impaired thereby.
11
EXHIBIT A
SERVICES
1.
Definitions.
Order Form shall mean professional services order form which the Procurer uses to specify the Services to be ordered from
the Provider.
Prime Contract" shall mean the agreement between the Procurer and the applicable Customer in connection with which the
Provider is providing the Services hereunder.
Procurer means the party who engages the other party to perform Services under a Prime Contract.
Provider means the party who provides Services for the other party pursuant to this Exhibit A.
Services shall mean work performed by Provider pursuant to an Order Form. The schedule for Services will be
agreed upon by the parties, subject to availability of Providers personnel, and reflected in the Order Form
"Statement of Work" or SOW shall mean a detailed description of the Services that is attached to an Order Form. The parties
shall enter into a SOW for a Customer engagement upon the request of Procurer.
2.
Order Forms. Each Order Form shall be substantially in the form attached hereto as Exhibit A-1 and shall identify the
Customer applicable to that particular Customer engagement. An Order Form shall be binding only when executed in writing
by each party. In the event of a conflict between the terms and conditions of the Order Form and this Agreement, the terms of
the Order Form shall prevail with respect to Services under that Order Form. Each Order Form will identify (a) the scope of work
for the Services; (b) the labor rate at which each consultant category will be billed if the Services are provided on a time and
material basis; (c) the fees, payment schedule, and deliverables if the Services are provided on a fixed price basis; and (d) other
provisions applicable to the Services.
3.
Charges, Payment, and Taxes
3.1 Unless otherwise specified in the applicable Order Form, Services shall be provided on a time and materials basis at the
rates specified in a particular Order Form. Unless specifically agreed otherwise, the fixed price amount does not include out-ofpocket expenses or taxes.
3.2 Provider shall invoice the Procurer monthly. Charges shall be payable thirty (30) days from the date of an approved
invoice, which approval shall not be unreasonably withheld. Procurer shall reimburse Provider for actual and reasonable travel,
lodging, communications, administrative, and out-of-pocket expenses (T&E Costs) incurred in conjunction with the Services,
subject to the Customers and/or Procurers reasonable expense reimbursement policies; Procurers shall make any such
policies available to Provider upon request.
3.3 If Provider is required to pay any federal, state, or local taxes based on the Services, the taxes shall be billed to and paid
by Procurer. The foregoing shall not apply to taxes based on Providers income, employment-related or corporate franchise
taxes.
4.
Project Management
4.1
Each party shall appoint a project manager who shall be responsible for coordinating its activities under an Order
Form (PPM for Procurers project manager and SPM for Providers project manager). Each party shall direct all inquiries
concerning the Services to the other partys project manager. The PPM shall have primary responsibility for project
management and delivery of services to the Customer. The SPM shall have primary responsibility for delivery of Providers
Services to the Procurer. The PPM and SPM will meet, either in person or via telecommunications, at times and places agreed
upon by them to discuss the Services. Written status reports and written replies thereto will be submitted at times agreed upon
by the PPM and SPM and reflected in the Order Form.
4.2
Any deliverables specified in an Order Form shall be subject to acceptance by Procurer. Procurer shall accept any
deliverables if such deliverables conform to the specifications set forth in the applicable Order Form. Any additional
acceptance procedures and/or criteria shall be specified in the applicable Order Form.
4.3
In order to change the scope of work in an Order Form, the party requesting the change must submit a written request to
the other party. The SPM will submit to the PPM an estimate of the revised charges and changes, if any, in the delivery schedule.
Provider will, at the PPM's option, continue performing the Services in accordance with the Order Form until the parties agree in
writing on the change in scope of work, scheduling, and fees therefore. Any change shall be agreed to by the parties in writing prior
to implementation.
4.4
The PPM shall have the opportunity, at its option, to promptly interview any Provider consultant. A Provider
consultant reasonably rejected by the PPM will not be assigned to perform Services under the Order Form. Any Provider
consultant who the parties agree to assign to perform Services shall be deemed to have been interviewed and accepted. The
PPM shall notify the SPM in writing if the PPM or Customer believes that a Provider consultant is not performing the Services
in an acceptable manner, and the SPM shall take such reasonable corrective action as the SPM may deem appropriate to
12
address such concern. If the SPM cannot resolve the PPMs or Customers reasonable concern without removing the Provider
consultant, the SPM shall remove the Provider consultant. If the parties believe it is necessary to replace the Provider
consultant, the SPM will use commercially reasonable efforts to replace the Provider consultant as soon as possible.
4.5
Provider shall fully comply with any and all applicable federal, state and local laws, codes, rules, regulations.
4.6
Procurer acknowledges that the timely provision of and access to office accommodations, facilities, equipment,
assistance, cooperation, complete and accurate information and data from the officers, agents, and employees of Procurer
and the Customer, and suitably configured computer products are essential to performance of any Services and that
Providers ability to complete any Services is dependent upon same. If the relevant requirement(s), project plan(s), schedule,
scope, specification(s), design(s), software, hardware product(s), or related system environment(s) or architecture are
changed by Procurer, the Customer or any other person, Provider shall not be responsible for the change unless Procurer and
Provider specifically consent to the change, scheduling, and additional charges, if any, in writing. Provider acknowledges that
Procurer's ability to complete its obligations under the Prime Contract is dependent on Providers provision, in a timely manner in
accordance with the applicable Order Form, of (a) Providers with the education and skills necessary to perform the Services, (b)
assistance and cooperation of the Providers, and (c) complete and accurate information, data, status reports, and deliverables (if
required under the Order Form) by Provider and its Providers.
4.7
If Provider cannot provide the number of qualified Provider consultants required to perform the Services, or a replacement
Provider consultant, the SPM shall promptly so notify the PPM. Provider may use a third party contractor rather than its own
consultants to perform Services provided that Provider obtains the prior written consent of the PPM and that Provider's agreement
with the third party contractor is not inconsistent with the terms of this Addendum and any related nondisclosure and/or
confidentiality agreement.
5.
Termination of Order Form.
5.1
A party may terminate an Order Form if the other party commits any other breach of a material obligation defined in
such Order Form which it fails to cure within 15 days of written notice or which is by its nature incurable. In addition, Procurer
may terminate an Order Form without opportunity for Provider to cure if the Customer requests removal of Provider, or if the Prime
Contract is amended such that Provider's Services are no longer required, or if the Prime Contract is suspended, canceled or
terminated. Procurer shall give Provider notice of such termination as soon as commercially reasonable.
5.2
If an Order Form is terminated as provided above, parties will use commercially reasonable efforts to mitigate fees and
expenses and Provider shall promptly deliver copies of all complete and incomplete deliverables to the Procurer. Provider shall be
paid at the labor rate for Services provided on a time and material basis or on a percent of completion basis for Services provided
on a fixed price basis.
6.
Services Infringement, Indemnity
6.1
Each party (Supplier) will defend and indemnify the other party (Recipient) against a claim that any information,
design, specification, instruction, software, data, or material furnished by the Supplier (Material) and used by the Recipient
for the Services infringes a United States copyright or patent provided that: (a) the Recipient notifies the Supplier in writing
within thirty (30) days of the claim; (b) the Supplier has sole control of the defense and all related settlement negotiations; and
(c) the Recipient provides the Supplier with the assistance, information, and authority reasonably necessary to perform the
above; reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the
Supplier.
6.2
The Supplier shall have no liability for any claim of infringement resulting from: (a) the Recipients use of a
superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a
subsequent unaltered release of the Material which is provided to the Recipient; or (b) any information, design, specification,
instruction, software, data, or material not furnished by the Supplier.
6.3
In the event that some or all of the Material is held or is believed by the Supplier to infringe, the Supplier shall have
the option, at its expense, (a) to modify the Material to be non-infringing; (b) to obtain for the Recipient a license to continue
using the Material; or (c) to require return of the infringing Material and all rights thereto from the Recipient. If Provider is the
Supplier and such return materially affects Procurers ability to meet its obligations under the Prime Contract, then Procurer
may, at its option and upon thirty days prior written notice to Provider, terminate the Order Form and shall be entitled to
recover the fees paid by Procurer for that portion of the Material prorated over a five year period from the effective date of the
applicable Order Form. If Procurer is the Supplier and such return materially affects Providers ability to meet its obligations
under the relevant Order Form, then Provider may, at its option and upon thirty days prior written notice to Procurer, terminate
the Order Form and Procurer shall pay Supplier for the Services rendered through the date of termination on a time and
materials basis or a percent of completion basis as applicable.
7.
Services Warranty.
13
7.1
Provider warrants that the Services will be performed consistent with generally accepted industry standards. Procurer
must report any deficiencies in the Services to Provider in writing within ninety (90) days of performance of the Services in
order to receive warranty remedies.
7.2
For any breach of the above warranty Procurers exclusive remedy, and Providers entire liability, shall be the reperformance of the Services. If Provider is unable to re-perform the Services as warranted, Procurer shall be entitled to
recover the fees paid to Provider for the deficient Services. Notwithstanding the foregoing, if the Customer refuses to pay or
seeks a refund of some or all of an invoice and, in Procurer's reasonable judgment, resolution of the problem will require
issuance of a refund or credit to the Customer, then Procurer and Provider will in good faith analyze the contributing factors
(including without limitation which partys Providers were involved, whether the work was timely completed, and the quality of
the work) and mutually agree on an allocation of responsibility for the problem between them as applicable. Provider will
refund or credit (as Procurer and Provider may agree) to the Customer an amount equal to the total refund or credit granted to
the Customer by Procurer multiplied by the percentage of responsibility for the problem which the parties agree to allocate to
Provider.
8.
Services Limitation of Liability, Indemnity, Insurance
8.1
Neither partys liability for direct damages under a particular Order Form shall exceed the compensation for the
Services described in the related Order Form.
8.2
Both parties shall provide the following insurance coverage during the term of providing Services under an Order
Form. Upon written request, each party shall supply the other party with a certificate(s) of insurance evidencing such
coverage:
Workers Compensation Insurance as required by the law; and
Employers Liability Insurance in such customary amounts carried by employers in like business; and
Comprehensive General Liability and Property Damage Insurance, including Errors and Omissions Liability Insurance,
coverage, as follows
General Liability
$1,000,000 per occurrence
Automobile Liability
$1,000,000 combined single limit
14

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DIRECT RESELLER AGREEMENT

TERMS AND CONDITIONS

Proofpoint Confidential and Proprietary

Proofpoint Confidential and Proprietary

Proofpoint licenses that were purchased by the Customer in the

trade designations on or to the Proofpoint Products. Reseller

2.3.2 Extension Terms. Proofpoint will be responsible

2.6 Ownership. Reseller acknowledges and agrees that the

2.3.3 Evaluation Units. Reseller may provide a

2.7 Reserved Rights. Proofpoint reserves the right, from time to

2.4 License Restrictions. Except as otherwise permitted under

2.8. Public Software. Use of Public Software is subject to the

2.5 Trademark License. Subject to Resellers compliance with

Proofpoint Confidential and Proprietary

all right, title and interest in all such translated marketing

the Proofpoint Products in media that is distributed both within

3.2 Training and Personnel Resource Requirements. Reseller

4.2 Software Updates. Provided the applicable fees have been

3.3 Marketing Obligations. Reseller agrees to use its best efforts

4.3 Marketing and Technical Material. Proofpoint shall make

3.4 Resellers Business Practices. Reseller shall (i) comply with

4.5 Marketing Support. Proofpoint agrees to provide to Reseller

3.5 Promotion in Territory. Reseller shall use its best efforts to

Proofpoint Confidential and Proprietary

discount for the purpose of closing a sale to a Customer, or for

booking target specified in Section 3.8, and (iv) notifies

5.2 Payment Terms. Proofpoints standard payment terms

5.5 Orders and Acceptance. For each transaction in which

5.2.1 Renewal Fees. Payment for renewal Subscription

Proofpoint Confidential and Proprietary

elects to install Proofpoint Products in accordance with this

5.7 Prospects. Reseller agrees to use Proofpoints online

8.2 Customer Support by Reseller. Provided that Reseller is

6. SHIPMENT AND DELIVERY

8.3 Proofpoints Support Obligations. If Reseller is providing

6.2 Delivery. Proofpoint will use its commercially reasonable

9. SERVICES. Any professional services provided by either

7.2 Certification of Compliance. Within thirty (30) days after a

10. REPRESENTATIONS AND WARRANTIES

8. INSTALLATION, MAINTENANCE AND SUPPORT

Proofpoint Confidential and Proprietary

10.1 Reseller Warranties. Reseller represents and warrants

it does not introduce any denied person or entity into Proofpoint

Reseller Conduct and Compliance with Laws.

10.2 Proofpoint Warranty. Proofpoint has and shall have all

10.2.2 Foreign Corrupt Practices Act; Compliance

10.4 Limited Appliance Warranty. Proofpoint warrants only to

10.2.3. Export Control.

10.5 Disclaimer and Indemnity. The Proofpoint products are

Proofpoint Confidential and Proprietary

11.5. Termination of Agreement. Upon any termination of this

12.2 Proofpoint Intellectual Property Indemnity. Proofpoint will (i)

12.4 Indemnity Exclusions. Proofpoint shall have no liability for,

11.3 Authorized Disclosure. If Receiving Party is compelled by

Proofpoint Confidential and Proprietary

12.5 Limitation. THE FOREGOING PROVISIONS OF THIS

13.3 Disclaimer of Liability to Customer. PROOFPOINT

12.6 Reseller Indemnity. Reseller agrees to defend indemnify

14. TERM AND TERMINATION

13. LIMITATION OF LIABILITY.

14.4 Effect of Termination or Expiration. Resellers right to resell

13.2 Exceptions to Limitation of Liability. THE FOREGOING

Proofpoint Confidential and Proprietary

automatically be canceled; and (vi) Reseller will cease using the