FireEye General Terms And Conditions — FireEye Offerings
1. Structure And Order of Precedence
- These General Terms and Conditions (the “Agreement”) are between Customer (defined below, or “You” or “Your”) and FireEye (defined below, or “We” or “Us”) and pertain to Your purchase and use of FireEye Offerings. FireEye and Customer may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
- Supplemental terms pertaining to Your use of specific FireEye Products, Support Services or Subscriptions are set forth in the applicable Schedule. In the event of a conflict between the terms in this Agreement and a Schedule, the terms in the Schedule will govern with respect to the particular FireEye Products, Support Services or Subscriptions addressed therein.
- If You have arrived at the website page on which this Agreement is posted, via a link provided during the process of installing or logging into Your FireEye Offering, You acknowledge that by clicking on “I accept” and proceeding with the installation or use of the Offering, You agree to be bound to this Agreement, as it applies to such Offering.
- If this Agreement is considered an offer, Your acceptance is expressly limited to this Agreement. If You do not unconditionally agree to the terms set forth in this Agreement, You must discontinue the installation or login process. If You proceed with installation or logging in, You represent and warrant that You agree and are authorized to agree to this Agreement on behalf of the Customer.
- Capitalized terms used in this Agreement have the meaning(s) assigned to them as provided in the Definitions (Section 14) below, or as may be defined elsewhere in this Agreement.
2. Purchase Terms
- If You have purchased the Offerings through a FireEye Partner, all fees, delivery, and other procurement terms shall be as agreed between You and the applicable FireEye Partner (and the terms set forth in Sections 3 and 4 below shall not apply).
- If You have purchased the Offerings directly from FireEye, the purchase terms set forth in Sections 3 and 4 below shall apply, in addition to the other terms set forth herein.
- Increases. FireEye reserves the right to increase Fees at any time, whether through direct purchase or a Partner. Increases in Fees for Subscriptions or Support Services will not go into effect until the next Renewal Subscription Term or Renewal Support Term, as applicable.
3. Direct Sales- Orders, Fees, And Payment Terms
- Orders. You may purchase the Offerings by submitting an Order to FireEye. If Your Order is accepted by FireEye, the “Order Effective Date” will be the date of the Order. All Orders will be governed by this Agreement. For clarity, We will not be obligated to ship any Product, or provide any Services, Training or Subscriptions until You have issued a valid Order for those Offerings.
- Statements of Work (“SOW”). Each SOW will incorporate and be governed by this Agreement. The “Statement of Work Effective Date” will be the date when You and FireEye have agreed to the SOW, either by executing the SOW or by issuing and accepting an Order for the D&I Services described on the SOW. FireEye will not be obligated to perform any D&I Services until a SOW describing those D&I Services has been agreed upon by You and FireEye, or an Order listing those D&I Services has been accepted by FireEye. You agree to reimburse FireEye for reasonable expenses that FireEye incurs so long as such expenses are directly attributable to the Services or Subscriptions performed or provided to You (i.e., travel expenses). FireEye will provide You with appropriate vouching documentation for all expenses that exceed twenty-five dollars ($25.00 USD).
- Invoice and Payment. Orders for Offerings will be invoiced by the relevant FireEye entity (identified in Definitions below, under “FireEye”), regardless of the entity that issued the quote or the entity to whom an Order was addressed. You will make full payment in the currency specified in FireEye’s invoice, without set-off and in immediately available funds, within thirty (30) days of the date of each invoice. If You consider an invoice to be incorrect, You must contact Us in writing within thirty (30) days of the date of invoice to request an adjustment or credit. All Fees are non-cancelable and non-refundable. All Fees described on an Order and in a SOW will be fully invoiced in advance, unless otherwise agreed by FireEye. Any partial shipments delivered by FireEye may be invoiced or delivered individually. If any payment is more than fifteen (15) days late, FireEye may, without limiting any remedies available to FireEye, terminate the applicable Order or SOW or suspend performance until payment is made current, and all payments then due will accelerate and become immediately due and payable. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by applicable law.
- Transaction Taxes. You agree to pay all applicable transaction taxes, including sales and use taxes, value added taxes, duties, customs, tariffs, and other government-imposed transactional charges however designated (and any related interest or penalty) on amounts payable by Customer under this Agreement (“Transaction Taxes”). FireEye will separately state on invoices the Transaction Taxes that FireEye is required to collect from You under applicable law. You will provide proof of any exemption from Transaction Taxes to FireEye at least fifteen (15) business days before the due date for paying an invoice. If FireEye does not collect the required Transaction Taxes from You but is subsequently required to remit the Transaction Taxes to any taxing authority, You will promptly reimburse FireEye for the Transaction Taxes, including any accrued penalty or interest charges if the failure to timely collect and remit was not due to FireEye’s fault.
- Withholding Taxes. All payments due will be made free and clear and without deduction for any present and future taxes imposed by any taxing authority. If You are required by applicable law to deduct or withhold income taxes from amounts payable to FireEye under this Agreement (“Withholding Taxes”), You will remit, and provide FireEye with evidence that You have remitted the Withholding Taxes to the appropriate taxing authority and paid the remaining net amount. You will provide written notice to FireEye of Your intent to withhold (including details of the amounts and legal basis for Withholding Taxes) at least fifteen (15) business days before the due date for any payments under this Agreement and You will cooperate with FireEye to reduce any Withholding Taxes. If FireEye provides You with valid and official documentation issued by the relevant taxing authority for a lower rate of Withholding Taxes, then You will apply the lower rate.
- Income Taxes. Each Party is responsible for its own income taxes or taxes based on gross revenues or gross receipts.
4. Direct Sales — Title And Risk of Loss; Inspection
- All hardware, including hardware components of Products and any hardware provided for use with Subscriptions, is shipped FOB Origin from FireEye’s designated manufacturing facility or point of origin, and title to such hardware and the risk of loss of or damage to the hardware shall pass to You at time of FireEye’s delivery of such hardware to the carrier.
- FireEye is authorized to designate a carrier pursuant to FireEye’s standard shipping practices unless otherwise specified in writing by Customer. You must provide written notice to FireEye within five (5) days of delivery of the Products of any non-conformity with the Order, e.g., delivery of the wrong Product or incorrect quantities.
5. Terms Applicable to Specific Offerings
Products, Support and Subscriptions are governed by this Agreement and the applicable Schedule for each Offering. Evaluations, Training, and D&I Services are governed by this Agreement, including the applicable terms below.
- Evaluations, Free Offerings, Preview Features, Beta Features.
- If You receive a Product or Subscription for evaluation purposes (“Evaluation Offerings”), then You may use the Evaluation Offerings for Your own internal evaluation purposes for a period of up to thirty (30) days from the date of receipt of the Evaluation Offerings (the “Evaluation Period”). You and FireEye may, upon mutual written agreement (including via email), extend the Evaluation Period.
- If the Evaluation Offering includes hardware components, You must return the hardware within ten (10) days of the end of the Evaluation Period; if You do not return the hardware within this ten (10) day time period, You will be invoiced for the then-current list price for the applicable Evaluation Offering. You acknowledge that title to hardware components of Evaluation Offerings remains with FireEye at all times, and that Evaluation Offerings may be used and/or refurbished units.
- You must delete all software and other components (including Documentation) related to the Evaluation Offering at the end of the Evaluation Period, and You must confirm those deletions in writing to FireEye, or You will be invoiced for the then-current list price for the Evaluation Offering.
- If the Evaluation Offering is a Subscription, You understand and agree that FireEye may disable Your access to the Subscription automatically at the end of the Evaluation Period, without notice to You.
- Free offerings, preview features and beta features or Products may be provided with respect to an existing Offering or on a stand-alone basis, for a limited time, at no additional charge but then licensed for an additional fee at a later date. All such free, preview and beta features or Products are considered “Unpaid Offerings” and FireEye may discontinue providing such Unpaid Offerings at any time. EVALUATION OFFERINGS AND UNPAID OFFERINGS ARE PROVIDED “AS IS”, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FIREEYE DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION OFFERINGS AND FREE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
- Training delivery dates and location for such Training will be mutually agreed upon by the Parties. If an Order does not specify such dates and/or locations, then the Parties will mutually agree upon the dates and locations for Training.
- You must request rescheduling of private Training no less than two (2) weeks in advance of the scheduled start date, and any such rescheduled training must be held within one (1) year of the date of the Order on which the original Training was included.
- FireEye will use reasonable efforts to reschedule the Training, subject to availability, and You will pay any expenses associated with the rescheduling, including any expenses associated with cancelling or changing travel plans.
- If You cancel attendance at a public Training class, You must notify FireEye no later than two (2) weeks before the date of the public Training class. If You timely notify Us of the cancellation, We will issue You a credit for the amount paid for that public Training class, which You may apply toward another public Training class of the same duration held within one (1) year of the date of the Order on which the cancelled Training class was included.
- You may substitute a named attendee at a public Training class, but You will notify Us in advance of any such substitution. We reserve the right to refuse admittance to public Training classes to any person, for any reason, and in such case, We will refund the amount paid for that person’s attendance at the public Training class.
- FireEye does not refund, or credit Fees paid for attendees who do not attend Training or who leave before Training concludes. We reserve the right to cancel public Training classes for any reason.
- Training may not be recorded. All Training must be scheduled and conducted within one (1) year of the date of the applicable Order for that Training.
6. Intellectual Property
- Ownership of FireEye Materials; Restrictions.
- (a) The FireEye Materials, Products, Documentation, and Subscriptions are considered FireEye Confidential Information, and FireEye (or FireEye’s licensors) own exclusively and reserve all rights, title, and interest in and to the FireEye Materials, Products, Documentation, and Subscriptions, including all Intellectual Property Rights in FireEye Materials, Products, Documentation, and Subscriptions.
- You may not exercise any right, title, and interest in and to the Materials, Products, Documentation, and Subscriptions, or any related Intellectual Property Rights, except for the limited usage rights granted to You under this Agreement.
- You agree, on behalf of Yourself and Your Affiliates, that You and Your Affiliates will take no action inconsistent with FireEye’s Intellectual Property Rights. You will not (and will not allow any third-party to):
- (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any FireEye Materials (except to the limited extent that applicable law prohibits reverse engineering restrictions);
- (ii) sell, resell, distribute, sublicense or otherwise transfer, the FireEye Materials, or make the functionality of the FireEye Materials available to any other Party through any means (unless otherwise FireEye has provided prior written consent);
- (iii) without the express prior written consent of FireEye, conduct any benchmarking or comparative study or analysis involving the FireEye Materials (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Products or Subscriptions to interoperate with Customer’s internal computer systems;
- (iv) disclose or publish to any third-party any Benchmarking or any other information related thereto;
- (v) use the FireEye Materials or any Benchmarking in connection with the development of Products, Services or Subscriptions that compete with the FireEye Materials; or
- (vi) reproduce, alter, modify, or create derivatives of the FireEye Materials.
- (d) Between Customer and FireEye, FireEye shall retain all rights and title in and to any Indicators of Compromise FireEye developed by or for FireEye in the course of providing Subscriptions or performing Services. FireEye may audit Customer’s use of Offerings to ensure compliance with the terms of this Agreement.
- (e) You acknowledge and agree that the FireEye Materials, Products, Documentation, and Subscriptions and all ideas, methods, algorithms, formula, processes and concepts used in developing or incorporated into FireEye Materials, Products, Documentation, and Subscriptions, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to FireEye Materials, Products, Documentation, or Subscriptions, as applicable, all derivative works based on any of the foregoing, and all copies of the foregoing are FireEye trade secrets and proprietary property, having great commercial value to the FireEye.
- Third-Party Materials. You acknowledge that Products and Subscriptions may include Third-Party Materials. FireEye represents that these Third-Party Materials will not diminish the license rights provided herein or limit Your ability to use the Products and Subscriptions in accordance with the applicable Documentation, and neither the inclusion of Third-Party Materials in any Product or Subscription or use of Third-Party Materials in performance of Services will create any obligation on Your part to license Your software or products under any open source or similar license.
- Aggregated Data. You grant to FireEye a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use data derived from Your use of the Offerings (the “Aggregated Data”) for FireEye’s business purposes, including the provision of Offerings to FireEye’s other customers; provided the Aggregated Data is combined with similar data from other customers and not identifiable to Customer. The Aggregated Data will not be considered Your Confidential Information.
- Product Warranty.
- (a) Except as otherwise set forth in a Schedule, FireEye warrants to Customer that during the one (1) year period following the shipment of the Products, the Products will perform substantially in accordance with the applicable Documentation.
- (b) The warranty stated in this Section 7.1 shall not apply if the Product has:
- (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by FireEye or not used in accordance with this Agreement or the Documentation;
- (ii) been repaired or altered by persons other than FireEye;
- (iii) not been installed, operated, repaired and maintained in accordance with the Documentation;
- (iv) been provided on a no charge, beta, or evaluation basis; or
- (v) been used with any third-party software or hardware which has not been previously approved in writing by FireEye.
- (c) If, during the one (1) year Product warranty period:
then, as Customer’s sole remedy and FireEye’s sole obligation under the foregoing warranty, FireEye shall, at FireEye’s option, repair (or correct the error, as applicable) or replace with a Product that will substantially conform to the accompanying Documentation without charge such Product.
- (i) FireEye is notified promptly in writing upon discovery of any error in a Product, including a detailed description of such alleged error;
- (ii) if applicable, such Product is returned, transportation charges prepaid, to FireEye’s designated manufacturing facility in accordance with FireEye’s then-current return procedures, as set forth by FireEye from time to time; and
- (iii) FireEye’s inspections and tests determine that the Product contains errors and has not been subjected to any of the conditions set forth in Section 7.1(b) (i)-(v) above,
- (d) Any Product that has either been repaired or replaced under this warranty shall have warranty coverage for the remaining warranty period. Replacement parts used in the repair of a Product may be new or equivalent to new.
- Services Warranty. FireEye warrants to Customer that Services will be performed in a professional manner in accordance with industry standards for like services. If You believe the warranty stated in this Section 7.2 has been breached, You must notify FireEye of the breach no later than thirty (30) days following the date the Services were performed, and FireEye will promptly correct or re-perform the Services, at FireEye’s expense.
- Subscription Warranty. FireEye warrants to Customer the Subscriptions will be provided in a professional manner in accordance with industry standards for similar subscriptions. If You believe the warranty stated in this Section has been breached, You must notify FireEye of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and FireEye will promptly correct the non-conformity, at FireEye’s expense.
- Remedies Exclusive. Except for any service level credits described in applicable Schedules, the remedies stated in Sections 7.1 through 7.3 above are the sole remedies, and FireEye’s sole obligation, with respect to Products, Subscriptions and Services that fail to comply with the foregoing warranties.
- Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS, SUBSCRIPTIONS, FIREEYE MATERIALS, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. FIREEYE AND ITS SUPPLIERS EXPRESSLY DISCLAIM, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, MEETING CUSTOMER’S REQUIREMENTS, TITLE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. FIREEYE ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT PRODUCTS, FIREEYE MATERIALS, SERVICES OR SUBSCRIPTIONS WILL BE ERROR-FREE OR UNINTERRUPTED.
8. Infringement Indemnity
- (a) FireEye shall defend Customer, and its officers, directors, and employees, against any third-party claim that the FireEye Materials infringes a valid U.S. patent, copyright, or registered trademark issued as of the date of delivery or performance, as applicable, when such claim is asserted against the FireEye Materials alone, and not in combination with non-FireEye product or service, or solely a combination of FireEye Materials.
- (b) FireEye shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) finally awarded against such Party in connection with such action, subject to Section 8.2 below.
- (c) If the FireEye Materials, or parts thereof, become, or in FireEye’s opinion may become, the subject of an infringement claim, FireEye may, at its sole option and expense:
- (i) procure for Customer the right to continue using the applicable FireEye Materials;
- (ii) modify such FireEye Materials so that it becomes non-infringing;
- (iii) replace such FireEye Materials with a substantially equivalent product, or
- (iv) with respect to: (a) Subscriptions, refund a portion of any pre-paid Fees for such Subscriptions, pro-rated for any unused Subscription Term, (b) Services, any pre-paid Fees for Services that have not been delivered; and (c) upon Customer’s return of the FireEye Material to FireEye and removal of the FireEye Materials from Customer’s systems, if applicable, refund the residual value of the purchase price Customer paid for the infringing FireEye Material, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the FireEye Material to Customer.
- (d) THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF FIREEYE AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE OFFERINGS, FIREEYE MATERIALS, OR DELIVERABLES.
- Exceptions. FireEye shall have no indemnification obligations with respect to any action ari sing out of:
- (a) the use of any Product, Subscription, or Service, or any part thereof, in combination with software or other products not supplied by FireEye;
- (b) any modification of the Products, Subscriptions, or Services not performed or expressly authorized by FireEye;
- (c) the use of any the Products, Subscriptions, or Services other than in accordance with this Agreement and applicable Documentation;
- (d) any FireEye Materials provided on a no charge, beta, or evaluation basis;
- (e) compliance with technology, designs, instructions, or requirements that Customer, or a third-party acting on Customer’s behalf, provided to FireEye; or
- (f) Customer’s continued use of the Product, Subscription or Service that is the subject of an infringement claim, after FireEye provided Customer with a modified or new version of the infringing item at no additional cost that is intended to rectify the alleged infringing item.
- Customer Indemnification Obligations. Customer shall indemnify, defend, and hold harm less FireEye, FireEye’s Affiliates, and FireEye’s officers, directors, employees, contractors, and agents (each a “Customer Indemnified Party”) against any claims, liabilities, and expenses (including court costs and reasonable attorney fees) that a Customer Indemnified Party incurs as a result of, or in connection with any third-party claims arising from:
- (a) Customer’s failure to obtain any consent, authorization, or license required for FireEye’s use of data, software, materials, systems, networks, or other technology Customer provides to FireEye under this Agreement;
- (b) Customer’s use of the FireEye Materials in a manner not expressly permitted by this Agreement;
- (c) FireEye’s compliance with any technology, designs, instructions, or requirements provided by Customer or a third-party on Customer’s behalf;
- (d) any claims, costs, damages, and liabilities whatsoever asserted by any of Customer representatives; or
- (e) any violation by Customer of applicable laws.
- Indemnification Process. The indemnified party (“Indemnitee”) will:
- (a) provide prompt written notice to the indemnifying party (“Indemnitor”) of the claim (provided that the failure to provide timely notice that prejudices the Indemnitor will relieve the Indemnitor of its obligations under this section to the extent the Indemnitor has been prejudiced and the failure to provide timely notice will relieve the Indemnitor of any obligation to reimburse the Indemnitee for its attorney’s fees incurred prior to notification);
- (b) reasonably cooperate in connection with the defense or settlement of the claim; and
- (c) give the Indemnitor sole control over the defense and settlement of the claim, provided that any settlement of a claim will not include a specific performance obligation or admission of liability by the Indemnitee. The foregoing indemnities are personal to the Parties and may not be transferred.
9. Limitation of Liability
- EACH PARTY'S ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY FOR CLAIMS UNDER OR RELATED TO THE SUBJECT-MATTER OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES RECEIVED BY FIREEYE FOR THE APPLICABLE PRODUCTS AND SERVICES PURCHASED UNDER THESE TERMS AND ATTRIBUTABLE TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.
- NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS, OR CORRUPTION OF DATA OR INTERRUPTION OR LOSS OF BUSINESS; OR LOSS OF REVENUES, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS, EVEN IF THE DAMAGES WERE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
- THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITY ARISING FROM: (A) CUSTOMER’S FAILURE TO PAY ALL AMOUNTS DUE; OR (B) CUSTOMER’S BREACH OF SECTIONS 11 (CONFIDENTIALITY) 6 (INTELLECTUAL PROPERTY) OR 10 (COMPLIANCE WITH LAW; U.S. GOVERNMENT RESTRICTED RIGHTS) OR USAGE RESTRICTIONS IN THE APPLICABLE SCHEDULE. THESE LIMITATIONS OF LIABILITY APPLY WHETHER SUCH CLAIMS ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, INFRINGEMENT, STATUTE OR OTHERWISE. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. THESE LIMITATIONS OF LIABILITY ARE CUMULATIVE AND NOT PER INCIDENT.
10. Compliance with Law U.S. Government Restricted Rights
- Compliance with Law. Each Party will comply with all national, state, and local laws and regulations with respect to its rights and obligations under this Agreement, including all applicable privacy and export control laws and regulations and the U.S. Foreign Corrupt Practices Act (FCPA), and other applicable anti-corruption laws. Customer will not directly or indirectly, export, transmit, permit access or use any of the FireEye Materials or technical data (or any part of the FireEye Materials or technical data) or system or service incorporating any of the FireEye Materials to or in any country to which export, transmission or access is restricted by regulation, statute or other law, without the authorization, if required, of the Bureau of Industry and Security of the U.S. Department of Commerce or any other competent governmental entity that may have jurisdiction over export or transmission. Customer will not use, transfer, or access any FireEye Materials for end use relating to any nuclear, chemical, or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
- Customer acknowledges and agrees that certain FireEye Materials containing encryption may require authorization from the U.S. Government and other competent authorities including the European Union, prior to export. Customer also acknowledges and agrees that certain FireEye Materials containing encryption may be subject to import or use restrictions in other countries.
- U.S. Government Restricted Rights. The Offerings, Deliverables and Documentation are “commercial items,” “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. All Offerings and FireEye Materials are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display or disclosure of the Offerings, FireEye Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
11. Confidential Information
- Confidential Information. Each Party acknowledges that it may have access to Confidential Information (as defined below) of the other Party in connection with this Agreement, and that each Party’s Confidential Information is of substantial value to the Discloser (as defined below), which could be impaired if it were improperly disclosed to third parties or used in violation of this Agreement. “Confidential Information” means any information (regardless of the form of disclosure or the medium used to store or represent it) of a Party, including trade secrets and technical, financial, or business information, data, ideas, concepts, or know-how, that is: (i) identified as “confidential” or similar words at the time of disclosure by the disclosing Party (“Discloser”) and, if oral or visual, is confirmed as confidential by the Discloser in writing within fifteen (15) days of disclosure; or (ii) disclosed under circumstances that would indicate to a reasonable person that the information should be treated as confidential by the Party receiving such information (“Recipient”). The terms of any commercial transaction between the Parties (including pricing related to the Offerings) shall be considered Confidential Information.
- Maintenance of Confidentiality.
- (a) Each Party agrees that it shall:
- (i) take reasonable measures to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own confidential information of a like nature;
- (ii) not use the Discloser’s Confidential Information in any way for its own account or the account of any third-party except to perform its duties, exercise its rights, or is otherwise authorized under this Agreement;
- (iii) not disclose the Discloser’s Confidential Information except to perform its duties or exercise its rights under this Agreement or as otherwise authorized under this Agreement, provided that: (a) any disclosure made to the Recipient’s employees, contractors, or agents is on a need-to-know basis; and (b) the Recipient’s employees, contractors, or agents in receipt of the Confidential Information are under an obligation of confidentiality no less stringent than that set forth in this section;
- (iv) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody the other Party’s Confidential Information and/or which are provided to the Party hereunder; and
- (v) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations.
- (b) Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of an Order or SOW. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information.
- (a) The Parties agree that Confidential Information does not include any information that:
- (i) is or becomes publicly known and made generally available through no fault of Recipient and without violation of the terms of this Agreement or other obligation to maintain confidentiality;
- (ii) written records demonstrate the Confidential Information was lawfully acquired by or previously known by the Recipient independent of the Discloser;
- (iii) is independently developed by Recipient without breach of this Agreement, including any obligation of confidentiality owed to the Discloser; or
- (iv) is received from a third-party without restrictions on its use or disclosure and not by inadvertence or mistake.
- (b) Notwithstanding the restrictions set forth in Section 11.2 above, Recipient may make disclosures of Confidential Information required by law or court order, such as in response to a subpoena or requirement of any regulator, court, arbitral, administrative, or legislative body, provided that Recipient:
- (i) where reasonably possible and permitted, immediately provide written notice to the Discloser of the required disclosure to give the Discloser an opportunity to move for a protective order or otherwise prevent the disclosure;
- (ii) disclose only the minimum amount of Confidential Information required to satisfy the legal obligation; and
- (iii) assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the Confidential Information to be disclosed.
- Injunctive Relief. You will immediately, and at least within seventy-two (72) hours, notify Us if Confidential Information is used or disclosed in breach of this Agreement. The Parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to all remedies available at law, Discloser shall be entitled to seek an injunction, specific performance, or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all the provisions hereof.
- Return of Confidential Information. Within thirty (30) days after the date when all Orders and SOWs have expired or been terminated (unless agreed otherwise by the Parties at the time), or after any request for return of Confidential Information, each Party will return to the other Party, destroy, or delete permanently all of such other Party’s Confidential Information, at such other Party’s discretion. On termination of this Agreement, the Recipient must continue to keep the Discloser’s Confidential Information confidential for five (5) years in accordance with this Section 11.
- (a) The Offerings may employ applications and tools to collect Personal Data, sensitive data or other information about Customer and end users (including end users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (including information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, Software installed, FireEye’s components, processes and services information, frequency and details of update of FireEye’s components, information about third-party products installed, extracts of logs created by FireEye, usage patterns of Offerings and specific features, etc.) (collectively, “Data”).
- (b) FireEye’s collection of Data may be necessary to provide You and end users with the relevant Offerings functionalities as ordered (including detecting and reporting threats and vulnerabilities on FireEye’s and end users’ computer network), to enable FireEye to improve Offerings (including content synchronization, device tracking, troubleshooting, etc.), to manage licenses to Offerings, and to further or improve overall security. You may be required to uninstall the Offerings to stop further Data collection that supports these functions.
- (d) Customer will secure all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or Customer’s internal policies or guidelines to disclose Customer’s Personal Data, to use the Offerings or otherwise under this Agreement.
12. Term And Termination
- Term. This Agreement will become effective on the Effective Date and will continue in effect for a period of one (1) year (the “Initial Term” of the Agreement). This Agreement will automatically renew for additional periods of one (1) year each (each, a “Renewal Term” and, together with the Initial Term, the “Term” of this Agreement) unless either Party notifies the other of its intent not to renew this Agreement by giving the other Party notice of non-renewal no later than sixty (60) days prior to the end of the then-current Term. The term of each Order will be as set forth below or in the applicable Schedule, and the term of each SOW will be as set forth in the applicable SOW.
- Products. Products will be licensed according to the applicable Schedule, for the period of time stated on the Order (the “Product Term” e.g., if the Order lists a Product as being provided for “3Y,” the license for that Product is provided for three (3) years from the date of the Order). If no period of time is stated on the Order, then the Product Term is perpetual, unless otherwise terminated as set forth herein. If You purchase a Product for a non-perpetual fixed Product Term, then You may terminate the license for convenience at any time, on thirty (30) days’ written notice to FireEye. If You terminate the Product Term for convenience before the end of the then-current Product Term, You will pay any remaining fees owing for the remainder of the then-current Product Term within thirty (30) days of the effective date of termination.
- Support Services. Support Services will begin on or shortly after the Order Effective Date (as determined by FireEye) and will continue in effect for the period of time stated in the Order (“Initial Support Term”). Unless otherwise stated on the Order, the Support Services will automatically renew for additional periods of one (1) year each (each, a “Renewal Support Term” and, together with the Initial Support Term, the “Support Term”), unless either Party notifies the other of its intention not to renew Support Services at least sixty (60) days prior to the expiration of the then-current Support Term. You may terminate Support at any time, for convenience, on thirty (30) days’ written notice to FireEye. If You terminate Support Services for convenience before the end of the then-current Support Term, You will pay any remaining fees owing for the remainder of the then-current Support Term within thirty (30) days of the effective date of termination.
- Subscriptions. The term of each Subscription will begin on or shortly after the Order Effective Date (as determined by FireEye) and will continue in effect for the period of time stated in the Order (“Initial Subscription Term”). Unless otherwise stated on the Order, the Subscription will automatically renew after its Initial Subscription Term for additional periods of one (1) year each (each, a “Renewal Subscription Term” and, together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other of its intention not to renew that Subscription at least sixty (60) days prior to the expiration of the then-current Subscription Term. You may terminate a Subscription at any time, for convenience, on thirty (30) days’ written notice to FireEye. If You terminate a Subscription for convenience before the end of the then-current Subscription Term, You will pay any remaining fees owing for the remainder of the then-current Subscription Term within thirty (30) days of the effective date of termination.
- Professional Services; Statements of Work. D&I Services described on an Order will be provided at mutually agreed-upon times, and will continue until complete, unless otherwise terminated as set forth herein. The term of each SOW will be as set forth in that SOW. If no term is expressed in the SOW, then the term of that SOW will begin on the SOW Effective Date and continue until the D&I Services described in that SOW are complete or the SOW is earlier terminated as set forth herein. You may request that FireEye suspend performing D&I Services during the term of a SOW, and FireEye will suspend such D&I Services within 24 hours of Your request. You acknowledge that any such suspension will not affect Your obligation to pay fees for D&I Services, and that resumption of D&I Services may be delayed if FireEye redeploys personnel to other engagements during the period of suspension.
- Termination for Material Breach. Either Party may terminate any Order or any SOW upon written notice of a material breach of the applicable Order or SOW by the other Party as provided below, subject to a thirty (30) day cure period (“Cure Period”). If the breaching Party has failed to cure the breach within the Cure Period after the receipt by the breaching Party of written notice of such breach, the non‑breaching Party may give a second notice to the breaching Party terminating the applicable Order or SOW. Termination of any particular Order or SOW under this Section will not be deemed a termination of any other Order or SOW, unless the notice of termination states that another Order or SOW is also terminated. Notwithstanding the foregoing, the Cure Period applicable to a breach by Customer of any payment obligations under any Order or any SOW will be fifteen (15) days. Notwithstanding the foregoing, this Agreement shall terminate automatically in the event You have breached any license restriction and, in FireEye’s determination, that breach cannot be adequately cured within the Cure Period.
- Effect of Termination. Termination or expiration of any Order or SOW will not be deemed a termination or expiration of any other Orders or SOWs in effect as of the date of termination or expiration, and this Agreement will continue to govern and be effective as to those outstanding Orders and SOWs until those Orders and SOWs have expired or terminated by their own terms or as set forth herein. The provisions of Sections 3 (Direct Sales- Orders, Fees and Payment Terms), 6 (Intellectual Property), 7.5 (Disclaimer of Warranties), 9 (Limitations of Liability), 10 (Compliance with Law; U.S. Government Restricted Rights), 11 (Confidential Information), and 13 (Miscellaneous), and all accrued payment obligations, shall survive the termination of all Orders and SOWs and the relationship between FireEye and Customer. Upon termination, Customer shall promptly return, destroy, or permanently delete all copies of the Product and any Documentation.
- Assignment. Customer may not sublicense, assign, or transfer this Agreement, this Agreement, any Order or SOW, or any rights or obligations thereunder, in whole or in part, without FireEye’s prior written consent, and any such sublicense, assignment or transfer, whether directly or indirectly by merger, acquisition or change of control, shall be null and void. FireEye shall have the right to assign all or part of this Agreement, an Order or SOW without Customer’s approval. Subject to the foregoing, this Agreement, each Order and SOW shall be binding on and inure to the benefit of the Parties’ respective successors and permitted assigns.
- Entire Agreement. This Agreement along with any Order, SOW and the Schedules attached hereto is the entire agreement of the Parties with respect to the Offerings and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between the Parties regarding the subject matter thereof. FireEye does not accept, expressly or impliedly and FireEye hereby rejects and deems deleted any additional or different terms or conditions that Customer presents, including, but not limited to, any terms or conditions contained or referenced in any order, acceptance, acknowledgement, or other document, or established by trade usage or prior course of dealing. FireEye reserves the right to amend any terms of this Agreement at any time. Any amendment will be effective on the posting of an updated version on the Trellix Legal Notices website.
- Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of the Parties, such as strikes, blockade, war, terrorism, riots, natural disasters, default of suppliers or subcontractors, shortage of supply or delay in delivery by FireEye’s vendors refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected Party from fulfilling its obligations and such Party is not able to prevent or remove the force majeure at reasonable cost.
Governing Law. All disputes arising out of or relating to this Agreement, or its subject-matter will be governed by the substantive laws as set forth in the table below based on Your primary place of business and regardless of and excluding rules relating to conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.
The courts listed below shall have exclusive jurisdiction to hear any dispute arising out of, or related to, this Agreement. Each Party agrees to the exclusive jurisdiction of such courts. Notwithstanding the foregoing, either Party may seek interim injunctive relief in any court of applicable jurisdiction with respect to any alleged breach of Intellectual Property Rights or the confidentiality terms herein.
Customer’s Primary Place of Business
United States and Canada
Laws of the State of California, U.S.
State courts in the County of Santa Clara, California, and the Federal Courts of the Northern District of California
All countries other than the United States and Canada
Laws of the Republic of Ireland
- Independent Contractors. The Parties are independent contractors. Nothing in this Agreement, any Order or any SOW shall be construed to create a partnership, joint venture employer/employee, fiduciary, or agency relationship between the Parties. Customer shall make no representations or warranties on behalf of FireEye.
- Language. This Agreement and each Order and SOW are in the English language only, which shall be controlling in all respects. All communications, notices, and Documentation to be furnished hereunder shall be in the English language only.
- Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving Party’s current business contact, if known, with a cc: to the General Counsel/Legal Department of the receiving Party, and sent to the Party’s address as listed in this Agreement, or as updated by either Party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; (ii) the next business day after being sent to a domestic address by pre-paid, nationally recognized, overnight air courier with tracking capabilities, or (iii) if mailed by first class mail, or the local equivalent, on the fifth (5th) business day after posting with the proper address.
- Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under the laws of any jurisdiction, the provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
- Third-Party Rights. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
- Waiver. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. A waiver of any provision of this Agreement must be in writing, specify the provision to be waived and signed by the Party agreeing to the waiver.
- Equal Opportunity. FireEye is committed to the provisions outlined in the Equal Opportunity Clauses of Executive Order 11246, the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Act of 1974, the Jobs for Veterans Act of 2003, as well as any other regulations pertaining to these orders.
- Failures or Delays in Performance. Failures or delays in FireEye’s performance are excused to the extent they result from: (i) Customer acts or omissions, or those of Customer’s employees, agents, users, affiliates, or contractors; (ii) notwithstanding the generality of Section 13.12(i), Customer’s failure or delay in the performance of a specific task, obligation or responsibility under this Agreement, Order or SOW, which task, obligation, or responsibility is a condition or requirement for a task, obligation, or responsibility; (iii) reliance on instructions, authorizations, approvals, or other information from Customer; or (iv) acts or omissions of third parties (unless directed by FireEye).
Capitalized terms in this Agreement shall have the following meaning:
“Content Feed” means all intelligence and content feeds associated with Products and Subscriptions, which may consist of inbound and outbound feeds that are part of FireEye’s Dynamic Threat Intelligence (DTI) Cloud, downloads of Indicators for use with Products and Subscriptions, and/or intelligence provided as part of Advanced Threat Intelligence (ATI).
“Customer” or “You” or “Your” means the end user customer of the FireEye Offerings.
“Deployment and Integration Services” or “D&I Services” means professional services provided by FireEye for the purpose of assisting the Customer in deploying, configuring, and integrating the FireEye Offerings.
“Documentation” means the user manuals generally provided in writing by FireEye to end users of the Products and Subscriptions in electronic format, as amended from time to time by FireEye.
“FireEye” (or “We” or “Us”) means (i) FireEye Security Holdings US LLC, a Delaware limited liability company with its principal place of business at 6000 Headquarters Drive, Suite 600, Plano, TX 75024 USA, with respect to Offerings that are shipped to, deployed or rendered inside of North America (including the United States, Mexico, Canada and the Caribbean), Central America and South America (collectively, the “Americas”); or (ii) with respect to all Offerings that are shipped to, deployed or rendered outside of the Americas, FireEye Ireland Limited, a company incorporated under the laws of the Republic of Ireland with principal place of business at 70 Sir John Rogers’s Quay, Dublin 2, DUBLIN, D02 R296, Ireland.
“FireEye Materials” means all FireEye proprietary materials, intellectual property related to Products, Services, or Subscriptions, (such as all rights in any software incorporated into a Product or Subscription, copyrights, and patent, trade secret and trademark rights related to Products, and screens associated with Products or Subscriptions), Documentation, any hardware and/or software used by FireEye in performing Services or providing Subscriptions, Content Feeds, FireEye’s processes and methods (including any forensic investigation processes and methods), Indicators of Compromise, materials distributed by FireEye during Training, and any FireEye templates and/or forms, including report and presentation templates and forms. FireEye Materials does not include Third-Party Materials.
“FireEye Offerings” or “Offerings” means, collectively, Products, Subscriptions, Training, D&I Services and Support Services.
“FireEye Partner” means an authorized FireEye channel partner.
“FireEye’s Support Programs and Terms” means the FireEye service support terms set forth at https://www.fireeye.com/support/programs.html
“Indicators of Compromise” or “Indicators” means specifications of anomalies, configurations, or other conditions that FireEye can identify within an information technology infrastructure.
“Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
“Order” means a written purchase order or similar ordering document, signed, or submitted to FireEye by Customer and approved by FireEye, under which Customer agrees to purchase Offerings.
“Personal Data” or “Personal Information” means any information relating to an identified or identifiable individual or is otherwise defined as ‘Personal Data’ under the General Data Protection Regulation or other applicable data protection laws to the extent that the definition of ‘Personal Data’ under the applicable data protection laws is broader than the preceding definitions.
“Products” means the FireEye software and hardware products (which may include embedded software or firmware components), provided as an on-premises deployment model, as described in a Product Schedule to this Agreement.
“Schedules” means the FireEye Product Schedules that are set forth in this Agreement and on the Trellix Legal Notices web site, and including, but not limited to, the following Schedules:
- Schedule A: FireEye Network Security (NX), FireEye Email Security – Server Edition (EX), FireEye Endpoint Security, FireEye Malware File Storage Scanning (FX), FireEye Detection on Demand, FireEye Central Management Series, FireEye Malware File Scanning (AX), FireEye VX, FireEye Cloud MVX, FireEye Network Forensics Platform (PX, IA), FireEye Cloudvisory;
- Schedule B: FireEye Helix, FireEye Threat Analytics, FireEye Threat Analytics Platform (TAP); and
- Schedule C: FireEye Email Security – Cloud Edition
“Service” or “Services” means the FireEye D&I Services, Support Services and Training.
“Statement of Work” or “SOW” means a mutually agreed-upon document between FireEye and Customer, describing D&I Services, rates, and timelines (if applicable) for those Services, and incorporating this Agreement.
“Subscription” means a service provided by FireEye for a fixed term, under which FireEye provides access to certain features, functionality, and/or information, as described in the applicable Schedule for each Subscription attached to this Agreement.
“Support Services” means the Product and Subscription support and maintenance services provided by FireEye with respect to each Product and Subscription, as described in the applicable Schedule for each Product or Subscription.
“Third-Party Materials” means software or other components that are licensed to FireEye by third parties for use in FireEye’s Offerings.
“Training” means training in the use of Products or Subscriptions, or on security-related topics in general, provided by FireEye.
“Trellix Legal Notices” means the website at https://www.trellix.com/en-us/about/legal.html.
Schedule FireEye Solutions — Products
- FireEye Network Security (NX)
- FireEye Email Security – Server Edition (EX)
- FireEye Endpoint Security
- FireEye Malware File Storage Scanning (FX)
- FireEye Detection on Demand
- FireEye Central Management Series
- FireEye Malware File Scanning (AX)
- FireEye VX
- FireEye Cloud MVX
- FireEye Network Forensics Platform (PX, IA)
- FireEye Cloudvisory
In addition to the General Terms that are applicable to all Offerings, and which govern this Schedule, the following terms also apply to the above-referenced FireEye Products, including hardware-based, cloud and virtual implementations.
1. Grant of License And Restrictions
Subject to payment of all fees, and any applicable user/use limitations as set forth below, FireEye grants Customer a personal, non-sublicensable, nonexclusive, right, during the Product Term, in accordance with the Agreement and this Product Schedule to: (i) install software and hardware components of the Product (including any virtual appliances provided as part of the Product) as set forth in the Documentation; (ii) use the Product as set forth in the Documentation for the Customer’s internal use only. All Products, Documentation, Content Feeds, reports, alerts, and intelligence and content made available through the Products are FireEye Materials. Customer will maintain the copyright notice and any other notices that appear on the Product, including any interfaces related to the Product. Certain Products will be subject to usage and licensing limitations as set forth below (“Usage Restrictions”):
- FireEye Network Security (NX) – Customers purchasing FireEye Network Security on a Subscription basis may purchase either an Enterprise Edition version or a Per-User Edition version. Enterprise Edition versions are licensed according to the aggregated average peak network utilization (the highest average throughput used by the Customer in a fifteen-minute period), expressed in Mbps (“Throughput”), as shown on the Order. Per-User Edition versions of the Subscription are licensed according to the number of Users in Customer’s environment, as shown on the Order. “Users” means any person whose network traffic is monitored by the Product. Customer’s Throughput for the Per-User Edition of the FireEye Network Security Product may not exceed one (1) Mbps per User of Throughput, averaged over all Users (“User Throughput Limit”).
- FireEye Email Security – Server Edition (EX) – Customers purchasing FireEye Email Security – Server Edition on a perpetual license basis may use the Product in connection with the number of attach/URL engines (i.e., email accounts) (“Attach/URL Engines”) stated on the applicable Order. Customers purchasing FireEye Email Security – Server Edition on a Subscription basis may purchase either an Enterprise Edition version or a Per-User Edition version. Enterprise Edition versions are licensed according to the number of mailboxes in the Customer’s environment that are monitored by the Product (“Mailboxes”). Per-User Edition versions are licensed according to the number of Users in Customer’s environment. “Users” means any person for whom a Mailbox is monitored by the Subscription. Customers purchasing Per-User Edition versions may use the Subscription to monitor up to 1.5 Mailboxes per User, averaged across all Users (“User Mailbox Limit”).
FireEye Endpoint Security - With respect to the FireEye Endpoint Security Product, Customer may install the “agent” software component of the Product on the number of Endpoints (or “Nodes”) stated on the applicable Order. “Nodes” or “Endpoints” are computing devices owned or controlled by Customer (such as laptops, workstations, and servers), on which Customer installs the agent software. Customers purchasing FireEye
Endpoint Security on a Subscription basis may purchase either an Enterprise Edition version or a Per-User Edition Version. Enterprise Edition versions of the Product are licensed according to the number of Endpoints purchased. Per-User Edition versions of the Product are licensed according to the number of Users in Customer’s environment. “Users” means any person whose computing activity is monitored by the Product. Customer may use the Subscription to monitor up to 1.5 Endpoints per User, averaged over all Users (“User Endpoint Limit”).
- FireEye Cloudvisory – Customers purchasing FireEye Cloudvisory on a Subscription basis may use the Product for (i) up to the level of Workloads purchased, as set forth on the applicable Order; (ii) when purchasing a cloud-based deployment, up to 500GB of storage (excess storage may be subject to additional fees). For purposes of this Schedule, “Workloads” means cloud services supported by cloud platform providers, which are included on the list of supported Workloads provided by FireEye, which may be updated from time to time in FireEye’s discretion.
- FireEye Detection on Demand – with respect to FireEye Detection on Demand, Customer may purchase either on a total Submissions basis, or a Per-User basis. Customers purchasing a total number of Submissions may use the Product for up to the number of submissions purchased, as stated on the applicable Order, during the Product Term stated on the Order (if no Product Term is stated on the Order, the Product Term will be one (1) year from the date of the Order). Customer purchasing on a Per-User basis may use the Product for up to twenty (20) submissions per User per month of the Product Term, aggregated across all of Customer’s Users. “Submissions” are files or other artefacts submitted to the Product by Customer for processing. FireEye reserves the right to limit the volume of submissions within a specific time period in its sole discretion to ensure performance of the Product.
- FireEye Malware File Storage Scanning (FX) – Customers purchasing FireEye File Analysis (FX) on a Subscription basis may use the Product to scan up to the maximum capacity of files as stated in the Documentation.
Exceeding the limitations set forth above or in the Documentation may result in degraded performance. FireEye may use technical measures to prevent over-usage or to stop usage after any usage limitations are exceeded. FireEye reserves the right to audit Customer’s use of the Products to ensure compliance with this Agreement. Updates, preview features, Content Feeds, access to portals, and/or Support Services are not necessarily provided with the Products, may require additional payment, or include additional terms and conditions, and may be provided on a “preview” basis for a limited period at no additional charge but then licensed for an additional fee at a later date. Customer acknowledges that Third Party Software distributed with the Products may be subject to separate license terms, and specifically, if the Oracle™ Java® software is included within the Product, that software is subject to the Oracle license BCL For Java SE (oracle.com) found here.
2. Content Feeds
Subject to Customer’s payment in full of all associated fees for the applicable FireEye Content Feed, as set forth on the applicable Order, FireEye shall grant a limited, non-exclusive, personal, non- transferable, non-sublicensable right to use the Content Feed as set forth in the Documentation for the applicable Product, for Customer’s internal business purposes during the active Support Term for the applicable Product.
FireEye shall not disclose to any third-party any personally identifiable data or Customer Confidential Information in connection with the Content Feed unless expressly authorized to do so by Customer. The Content Feeds available to the Customer for purchase with respect to the Products may include FireEye Dynamic Threat Intelligence or Advanced Threat Intelligence (ATI), as described in the Documentation. Customers purchasing Subscription-based versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis will receive access to the DTI Content Feed in 2-way mode and may upgrade the DTI Content Feed to 1-way or offline mode upon payment of additional fees.
3. Support Services
Subject to Customer’s payment in full of all associated fees for FireEye Support Services, FireEye shall provide Support Services for the Products as set forth in FireEye’s Support Programs and Terms page, as may be updated by FireEye in its discretion. Customers purchasing Subscription-based versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis will receive access to Platinum Support Services (or Government Platinum Support Services, if applicable), and may upgrade to Platinum Plus Support Services (or Government Platinum Plus Support Services, if applicable) upon payment of additional fees.
Customer may purchase hardware appliances for use with Subscription versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis, on either a Subscription or perpetual license basis. In either case, hardware is shipped FOB Origin, and title to and risk of loss of the hardware passes to the Customer upon delivery to the carrier. Customers purchasing hardware on a perpetual license basis will receive a perpetual, personal, non-sublicensable, nonexclusive right to use the software installed on the hardware. Customers purchasing hardware on a Subscription license basis will receive a personal, non-sublicensable, nonexclusive right to use the software installed on the hardware during the Product Term, which will be a minimum of three (3) years.
5. True Up
- FireEye reserves the right to audit Customer’s use of the Products to ensure compliance with this Agreement. If at any point during the Product Term, Customer’s usage exceeds the purchased limits as set forth above or on the applicable Order in three (3) or more calendar days in any consecutive thirty (30) day period, FireEye may issue a true-up invoice for the pro-rated difference between the fees already paid for that Product Term and FireEye’s list prices for the excess usage, pro-rated to reflect that thirty (30) day period and the remainder of the Product Term.
- The fees for any renewal Product Term will be quoted at the usage associated with the actual usage for the immediately preceding year of the Product Term.
- At the end of each Product Term, FireEye may true-up fees for that Product Term, and if the average monthly usage for that Product Term exceeds the purchased usage limits, then FireEye will issue a true-up invoice reflecting the difference between the fees already paid for that Product Term and the fees for the Customer’s actual usage.
Schedule — FireEye Solutions
Schedule C: FireEye Email Security — Cloud Edition Subscription
In addition to the General Terms Applicable to all Offerings, which govern this Schedule, the following terms govern the Email Threat Prevention Subscription and the FireEye Email Security – Cloud Edition Subscription.
The capitalized terms below have the following meanings, as used in this Schedule:
“Email Subscription” means the scanning, filtering, and delivery of email by the FireEye Email Threat Prevention Subscription or the FireEye Email Security – Cloud Edition Subscription.
“Customer Data” means data and information originated by Customer that Customer submits to the Email Subscription.
“Customer Representatives” means any employee of Customer to whom Customer provides access to the Email Subscriptions (or any component thereof) for use on behalf of and for the benefit of the Customer and for Customer’s internal business purposes, subject to all the terms and conditions of this Agreement.
“Licensed Inboxes” means the number of email inboxes Customer may have at any time that are registered to the Email Subscription, which maximum number shall be based on the Subscription fees paid by Customer and identified on the relevant purchase order from Customer as approved and invoiced by FireEye.
2. Right of Access And Use
- During the Subscription Term, and subject to the terms of this Agreement, FireEye grants to Customer a non-exclusive right to permit those Customer Representatives authorized by Customer to access and use the Email Subscription on Customer's behalf in compliance with the terms of this Agreement and the Documentation for the Email Subscription.
- Notwithstanding anything else herein, the number of email inboxes Customer may register to the Email Subscription may not exceed the number of Licensed Inboxes. Service Levels for the Email Subscription will be as set forth on FireEye’s Support Programs and Terms page.
- Except as otherwise expressly permitted under this Agreement, Customer agrees that it shall not, nor shall it permit any third-party to:
- (a) use the Email Subscription (or any portion thereof) in excess of or beyond the Subscription Term, the Licensed Inbox quantity, and/or other restrictions/limitations described in this Agreement;
- (b) use the Email Subscription to store or transmit infringing, libelous, or otherwise unlawful or tortious material;
- (c) store or transmit material in violation of third-party privacy or other rights; or
- (d) interfere with or disrupt the integrity or performance of the Email Subscription or third-party data contained therein.
- Unless Customer has purchased the AV/AS version of the Email Subscription, Customer shall route email through a commercially available secure email gateway for anti-spam scanning prior to relay through the FireEye network.
- FireEye may, in its discretion, limit the volume of email traffic flowing through the Email Subscription to help avoid Service Outages (as defined below). No rights or licenses are granted other than as expressly and unambiguously set forth herein.
4. Support Services
Subject to Customer’s payment in full of all associated fees for FireEye Support Services, FireEye shall provide Support Services for the Email Subscription as set forth at FireEye’s Support Programs and Terms page, as may be updated by FireEye in its discretion.
5. True Up
- FireEye reserves the right to audit Customer’s use of the Email Subscription to ensure compliance with this Agreement.
- If at any point during the Subscription Term, Customer’s usage exceeds the purchased limits as set forth above or on the applicable Order in three (3) or more calendar days in any consecutive thirty (30) day period, FireEye may issue a true-up invoice for the pro-rated difference between the fees already paid for that Subscription Term and FireEye’s list prices for the excess usage, pro-rated to reflect that thirty (30) day period and the remainder of the Subscription Term.
- The fees for any renewal Subscription Term will be quoted at the usage associated with the actual usage for the immediately preceding year of the Subscription Term.
- At the end of each Subscription Term, FireEye may true-up fees for that Subscription Term, and if the average monthly usage for that Subscription Term exceeds the purchased usage limits, then FireEye will issue a true-up invoice reflecting the difference between the fees already paid for that Subscription Term and the fees for the Customer’s actual usage.