FIREEYE SUPPORT TERMS AND CONDITIONS

Transcription

1 FIREEYE SUPPORT TERMS AND CONDITIONS These FireEye Support Terms and Conditions (the Agreement ) apply to any supported Products (defined below) that you ( You or Customer ) have procured from FireEye, Inc. ( FireEye ) for support or maintenance services for FireEye products ( Products, which shall consist of hardware components ( Hardware ) and software components ( Software )) (the Services ). The Services offered by FireEye hereunder are expressly conditioned on Customer abiding by the terms of the FireEye End User License Agreement ( EULA ), which is hereby incorporated by reference into the Agreement. In the event of any conflict between this Agreement and the EULA, the terms of the EULA shall control. Customer acknowledges and agrees that Customer has read, understood and agreed to the terms and conditions of this Agreement. IF YOU DO NOT AGREE WITH ALL THE TERMS, CONDITIONS AND LIMITATIONS OF THE AGREEMENT, YOU MUST CEASE IMMEDIATELY ALL USE OF THE SERVICES. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF FIREEYE SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF YOU HAVE ORDERED THE SERVICES, FIREEYE S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON CUSTOMER S ASSENT TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY FIREEYE, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. In the event Customer has purchased the Products and pass-through support from FireEye through a FireEye authorized reseller (a "Reseller"), Customer will be entitled to all the rights herein set forth related to the level of service requested and paid for by it, provided Customer: (a) is the original purchaser of the covered Products, (b) has provided true, accurate, current and complete information to FireEye included with its purchase; and (c) has maintained and updated this information to keep it true, accurate, current, and complete. 1 SUPPORT SERVICES PROVIDED BY FIREEYE. FireEye offers a range of programs for the support of its Products as described below ( Support Programs ). Customer shall be entitled to receive the Services specified on the applicable support invoice and described below to the extent that Customer has paid in full the Support Fee (as defined below) for such services. 1.1 Software Maintenance Services include each of the following: Software Updates. During the Term (as defined below), FireEye shall provide Customer notification of bug fixes, maintenance patches and new releases which may contain minor enhancements to the features or functions of the Licensed Software ( Updates ). FireEye may designate a particular release of the Licensed Software as an Update at its sole discretion. Customer may obtain Updates either through delivery of a machine-readable copy pursuant to instructions contained in the document notifying Customer of an available Update or by downloading the Update from FireEye s server via the Internet. FireEye reserves the right to impose additional charges for releases of Licensed Software (i) that provide major enhancements to the features or functions of the Licensed Software, as determined by FireEye at its sole discretion; or, (ii) that provide additional features or perform additional functions not provided or performed by the Licensed Software. Software Error Corrections. During the term of this Agreement, FireEye shall use commercially reasonable efforts to correct any reproducible programming error in the Software attributable to FireEye, employing a level of effort commensurate with the severity of the error, provided, however, that FireEye shall have no obligation to correct all errors in the Software. Upon identification of any programming error, Customer shall notify FireEye of such error in writing and shall provide FireEye with enough information to locate and reproduce the error. FireEye shall not be responsible for correcting any errors not attributable to FireEye. Errors attributable to FireEye shall be those that are reproducible by FireEye on unmodified Software. If it is found that a particular error is fixed in the most current Software release, then FireEye shall have no obligation to fix the error in any prior Software release and Customer will need to upgrade to the current Software release in order to obtain the fix. 1.2 Support Programs Platinum Support includes all of the services set forth above under Software Maintenance Service (section 1.1) and additionally:

2 , Live Chat, Web or Telephone Support. During the term of this Agreement, FireEye shall provide Customer technical , live chat, web or telephone support for the Products twenty-four (24) hours per day, 365 days a year. FireEye s support technician shall only be obligated to respond to Customer s fifteen (15) designated contacts. FireEye shall use commercially reasonable efforts to respond to the request for support within one minute of receiving the inquiry from Customer regarding use or installation of the Product that is communicated to FireEye via one of the mechanisms above to the attention of FireEye s support engineers. Product Return. During the term of this Agreement, Customer shall have the right to return to FireEye any defective Product subject to the limited warranty. Additionally, FireEye will fulfill the following Advance Return provisions below. Advance Replacement Prior to any return as to which Advance Replacement applies, Customer shall verify that said Product is defective by logging a Support request via one of the mechanisms described above and in accordance with FireEye s RMA procedures, including providing the part number, serial number, quantity and reason for return, an explanation of all failure symptoms and other relevant information. Upon confirmation by FireEye of a defect, Customer shall obtain from FireEye an RMA number. FireEye shall ship via a recognized express courier service a replacement Product to Customer to arrive no later than next business day after FireEye s issuance of an RMA number, provided the RMA number was issued prior to the business day cutoff time local to the defective Product, provided the replacement does not require any custom pre-configuration, and provided no external-to-fireeye circumstances prevent the delivery. The replacement Product may be a new or reconditioned Product (of equivalent or better quality) at FireEye s sole discretion. FireEye shall pay the shipping costs to ship the replacement Product to Customer, but Customer shall bear any and all risk of loss of or damage to said Product at all times after said Product is made available by FireEye to the common carrier. The support service will transfer from the defective Product to the replacement Product. Within five (5) business days after Customer receives the replacement Product from FireEye, Customer shall package said defective Product in its original packing material or equivalent, write the RMA number on the outside of the package and return said defective Product, at FireEye s cost provided Customer utilizes FireEye s designated courier service and properly packages the defective Product according to FireEye s instructions, shipped properly insured, FOB FireEye s designated facility (except that FireEye shall pay for shipping). Customer shall enclose with the returned Product the applicable RMA form, and any other documentation or information requested by FireEye customer support. Customer shall assume any and all risk of loss of or damage to such Product during shipping. Title to the defective Product shall pass to FireEye upon FireEye s receipt thereof. When a replacement Product is provided and Customer fails to return the defective Product to FireEye within ten (10) business days after Customer receives the replacement Product from FireEye, FireEye may charge Customer, and Customer shall pay for the replacement Product at the then-current list price Platinum Priority Plus Support includes all of the services set forth above under Platinum Support (section 1.2.1) and additionally: Access to Support. Customer will be provided with direct priority access to Level 2 Advanced Engineering support who shall respond to Customer s unlimited number of designated contacts. A Designated Support Engineer (DSE) point of contact, who is available during Customer s business hours (for single Customer site if Product(s) installed at multiple Customer sites), will be made available to be the focal point of contact within FireEye, to project manage Customer s technical issues. Onsite Support. Onsite visits for problem assistance at DSE s sole discretion. Reporting. FireEye will supply Customer with monthly reports detailing technical support provided during the previous month. Quarterly business reviews will also be conducted Government Support, if available, includes all of the services set forth above under Platinum Support (section 1.2.1) and additionally: , Live Chat, Web or Telephone Support. For the specified country, access to citizens of that country for the fulfillment of Level 1 and 2 technical support requests Government Priority Plus Support includes all of the services set forth above under Government Support (section 1.2.3) and additionally: Access to Support. Customer will be provided with direct priority access to Level 2 Advanced Engineering Support Terms and Conditions (Rev 7/14) Page 2 of 6

3 support who are citizens of that country and shall respond to Customer s unlimited number of designated contacts. A Designated Support Engineer (DSE) point of contact who is a citizen of that country and available during Customer s business hours (for single Customer site if Product(s) installed at multiple Customer sites), will be made available to be the focal point of contact within FireEye, to project manage Customer s technical issues. Onsite Support. Onsite visits for problem assistance at DSE s sole discretion. Reporting. FireEye will supply Customer with monthly reports detailing technical support provided during the previous month. Quarterly business reviews will also be scheduled Special Services FireEye agrees to use commercially reasonable efforts to respond to any requests by Customer for support services not specifically provided for above. Customer acknowledges that all such services provided by FireEye shall be at FireEye's discretion and then-current fees and policies. 2 CUSTOMER RESPONSIBILITIES. 2.1 Requesting Services. When requesting Services from FireEye under this Agreement, Customer should have the following useful information available to provide to FireEye, if requested: (i) detailed problem description, including operating system ( OS ) version, Product model and serial number(s), of the affected Product, and a detailed description of the troubleshooting that has already been done to try to resolve the problem; (ii) detailed system log files; (iii) configuration and login details to allow FireEye access as needed to the Products via the Internet for the purpose of providing support services and permissions needed in order for FireEye to conduct such remote access; (iv) a detailed description of changes to the environment; and (v) Customer s unique ID, Account ID, the serial number(s) of the Product(s) covered by this Agreement or other unique customer identifier as assigned to Customer by FireEye. Customer acknowledges and agrees that failure to have any or all information or access available as needed by FireEye in order to provide the Services may result in delays in FireEye s response, may hinder FireEye s ability to perform the Services and/or may cause incorrect Support Program fulfillment. FireEye will not be responsible for any such delays and inability to perform due to causes not due to FireEye. 2.2 Customer Assistance. Customer agrees to: (i) ensure that their site complies with any and all applicable FireEye published system environmental specifications; (ii) follow FireEye s procedures when requesting Services; (iii) provide FireEye reasonable access to all necessary personnel to answer questions or resolve problems reported by Customer regarding the Products; (iv) promptly implement all Updates and error corrections provided by FireEye under this Agreement; and (v) maintain FireEye supported versions of required third party software, if any. Customer agrees to use reasonable efforts to resolve internally any support questions prior to requesting support services pursuant to this Agreement. During the term of this Agreement, FireEye may obtain information regarding Customer s communication and Customer agrees that, as a condition to entering into this Agreement and FireEye s commitment to providing Services, FireEye may use statistical data generated regarding Customer s correspondence with customer support so long as the source or content of the s is not being disclosed. 2.3 Contact People. Customer shall appoint the specified number of individuals (depending upon the Support Program purchased) within Customer's organization to serve as contacts between Customer and FireEye and to receive support through FireEye's telephone support center. Customer s contacts shall have been adequately trained on the Products and shall have sufficient technical expertise, training and experience. All of Customer's support inquiries shall be initiated through these contacts. 3 EXCLUSIONS. Notwithstanding anything else contained in this Agreement to the contrary, FireEye shall have no obligation or responsibility to provide any support services relating to problems arising out of or related to (i) Customer's failure to implement all Updates to the Licensed Software which are made available to Customer under this Agreement; (ii) the failure to provide a suitable installation environment; (iii) any alteration, modification, enhancement or addition to the Products performed by parties other than FireEye; (iv) use of the Products in a manner, or for a purpose, for which they were not designed; (v) accident, abuse, neglect, unauthorized repair, inadequate maintenance or misuse of the Products; or relocation of the Products (including without limitation damage caused by use of other than FireEye shipping containers), (vi) operation of the Products outside of environmental specifications; (vii) interconnection of the Products with other products not supplied by FireEye; (viii) use of the Support Terms and Conditions (Rev 7/14) Page 3 of 6

4 Licensed Software on any systems other than the specified hardware platform for such Licensed Software; or (ix) introduction of data into any database used by the Licensed Software by any means other than the use of the Licensed Software. Notwithstanding anything else contained in this Agreement to the contrary, FireEye will support all generally available ("GA") versions of the FireEye OS, for a minimum of one (1) year from GA release date, regardless of the number of supported OS GA versions. FireEye will also support the two (2) most current OS GA versions, regardless of the elapsed time from GA release date. If available, and at FireEye s sole discretion, support for any other OS versions or for other problems not covered under this Agreement may be obtained at FireEye's then-current fees and policies for such services. FireEye s complete end of life policy can be found at 4 COMPENSATION AND TAXES. 4.1 Compensation. As compensation for any given support term, Customer agrees to pay FireEye as provided in the relevant invoice issued by FireEye to Customer for the services to be provided hereunder in United States dollars a fee in the amount of the Support Fee (the "Support Fee"). Thereafter, FireEye shall invoice Customer for the Support Fee for any renewal period no earlier than sixty (60) calendar days prior to the expiration of the thencurrent term at a Support Fee as defined in FireEye s then-current price list. All payments shall be due and payable in United States dollars within thirty (30) calendar days of the date of the invoice. FireEye may change the Support Fee due under this Agreement at its sole discretion by providing Customer with written notice at least thirty (30) calendar days prior to the renewal date. All fees herein are non-cancelable and non-refundable. 4.2 Taxes. In addition to other payments due under this Agreement, Customer shall pay any taxes, duties or charges of any kind (including any withholding or value added taxes) imposed by any federal, state or local governmental entity for Products or Services provided under this Agreement, excluding only taxes based solely on FireEye's net income, unless Customer provides FireEye with a valid tax exemption certificate authorized by the appropriate taxing authority. 4.3 Lapsed Support. After any lapse of Services, the parties subsequently may elect to reinstate such Services for Products for which the Services lapsed pursuant to the terms and conditions set forth in this Agreement; provided, however, that (i) Customer agrees to pay for the period of time that has lapsed as well as any renewal term, and (ii) such Products must be in good working condition, as solely determined by FireEye or its designee. 5 TERM AND TERMINATION. 5.1 Term. Unless otherwise agreed to between the parties in a EULA or an ordering document agreed to between the parties, the term of this Agreement shall commence ten (10) days after shipment of the Product, provided Customer has paid the appropriate Support Fee therefore (the "Support Commencement Date") and shall continue in full force and effect for a period stated in the corresponding order (the "Term"). Thereafter, this Agreement shall automatically renew for continuous one-year periods on the anniversary date of the Support Commencement Date, unless (i) either party notifies the other of its intent not to renew at least thirty (30) calendar days prior to the renewal date; or (ii) otherwise negotiated between the parties. The provisions of Sections 5 (Term and Termination), 6 (Ownership Use; Warranty Disclaimer), 7 (Limitation of Liability), 8 (Damages Waiver) and 9 (General Provisions) shall survive any termination or expiration of this Agreement and shall continue to apply in accordance with their terms. 5.2 Support Program Upgrade. At any time during the Term, Customer may upgrade to FireEye's next level of Support Program by (i) notifying FireEye of Customer's desire to upgrade; (ii) acknowledging in writing the thencurrent terms and conditions for the relevant Support Program; and (iii) paying FireEye the additional Support Fee owed in connection with such upgraded Support Program. 5.3 Termination. This Agreement shall terminate (i) upon the termination of the EULA; (ii) immediately by a party on written notice to the other party in the event that the other party is in material breach of this Agreement, if such material breach cannot be remedied; (iii) immediately by a party on written notice to the other party in the event that the other party is in material breach of this Agreement, if such material breach can be remedied, and the other party fails to cure such material breach within thirty (30) calendar days after written notice thereof; or (iv) immediately by a party on written notice to the other party in the event that the other party has committed again Support Terms and Conditions (Rev 7/14) Page 4 of 6

5 a previously remedied material breach. If this Agreement is terminated for FireEye's breach, FireEye shall refund any unearned amounts paid by Customer. Otherwise, upon such termination, all earned and unpaid fees and other charges payable under this Agreement shall become immediately due and payable. 6 OWNERSHIP AND USE; WARRANTY DISCLAIMER. 6.1 Ownership and Use. All Updates and other changes, improvements, bug fixes or other modifications to the Licensed Software provided under this Agreement shall be deemed to be included within the Licensed Software and shall be subject to the terms and conditions of the EULA. 6.2 Support Services Warranty. FireEye warrants it will provide the Services in a professional and workmanlike manner consistent with good industry standards and practices. As Customer s sole and exclusive remedy and FireEye s entire liability for any breach of the foregoing warranty, FireEye will re-perform in a conforming manner, any nonconforming Services that are reported to FireEye by Customer in writing within sixty (60) days after the date of completion of such Services. 6.3 Warranty Disclaimer. All Updates or other modifications to the Software provided hereunder are subject to the warranty in the EULA. Nothing in this Agreement shall be construed as expanding or adding to such warranty. FireEye shall use all reasonable commercial efforts to provide the support requested by Customer under this Agreement in a professional and workmanlike manner, but FireEye cannot guarantee that every question or problem raised by Customer shall be resolved. UNLESS OTHERWISE PROVIDED HEREIN, FIREEYE MAKES, AND CUSTOMER RECEIVES, NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARISING IN ANY WAY OUT OF, RELATED TO, OR UNDER THIS AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES HEREUNDER, AND FIREEYE HEREBY SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS INCLUDING WITHOUT LIMITATION THOSE ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRACTICE AND THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY. 7 LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, ALL LIABILITY OF FIREEYE AND ITS SUPPLIERS FOR CLAIMS RELATING TO OR ARISING OUT OF THIS AGREEMENT OR OTHERWISE, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS AGREEMENT. 8 DAMAGES WAIVER. IN NO EVENT SHALL FIREEYE OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT OR LICENSED SOFTWARE, EVEN IF FIREEYE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, COSTS OR DAMAGES. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS AGREEMENT. 9 GENERAL PROVISIONS. THIS AGREEMENT IS ENTERED INTO IN THE STATE OF CALIFORNIA, UNITED STATES OF AMERICA, AND SHALL BE CONSTRUED, ENFORCED AND GOVERNED SOLELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. The personal and exclusive jurisdiction and exclusive venue of any action with respect to the subject matter of this Agreement shall be the Superior Court of California for the County of Santa Clara or the United States District Court for the Northern District of California and each of the parties hereto submits itself to the personal and exclusive jurisdiction and exclusive venue of such courts for the purpose of any such action. Notwithstanding the foregoing, either party may seek equitable relief in any court of appropriate jurisdiction with respect to any alleged breach of such party's proprietary rights. No Support Terms and Conditions (Rev 7/14) Page 5 of 6

6 modification of this Agreement, nor any waiver of any rights, shall be effective unless assented to in writing by the party to be charged. The waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default. Any required notices shall be given in writing, and shall be delivered personally, electronically or by mail. Notices shall be deemed served when personally or electronically delivered or, if delivery is by mail, five (5) calendar days after mailing. The relationship of the parties hereunder is that of independent contractors. Other than the payment of moneys, nonperformance of either party shall be excused to the extent that performance is rendered commercially unreasonable by acts of God, war, fire, flood, riot, power failure, embargo, material shortages, strikes, governmental acts, man-made or natural disasters, earthquakes, failure or limitation of supply or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party, and provided that such party notifies in writing the other party of the existence of such situation. If, for any reason, a court or other body of competent jurisdiction finds, or the parties mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. The parties shall negotiate in good faith an enforceable substitute provision that most nearly achieves the intent and economic effect of such invalid or unenforceable provision. This Agreement sets forth the entire Agreement and understanding, express or implied, written or oral, of the parties with respect to the support services for the Product and supersedes any and all prior and contemporaneous agreements and understandings relating thereto, express or implied, written or oral, between the parties. Customer shall not assign its rights or obligations under this Agreement without the prior written consent of FireEye, except to a purchaser of substantially all of the business or assets of Customer that agrees to be bound by all of the terms and conditions of this Agreement. Section headings herein are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The parties agree that the terms and conditions of this Agreement are confidential, and that neither party shall disclose the contents of this Agreement without the prior written consent of the other party. Support Terms and Conditions (Rev 7/14) Page 6 of 6