Terms of Use

TERMS AND CONDITIONS OF SALE

1. DEFINITIONS – As used in this Agreement, the following terms shall have the following meanings: (a) “Agreement” means the terms and conditions set forth herein; (b) “Buyer” means the entity buying the Products from FireEye; (c) “Content Feed Services” means a service offered by FireEye whereby the development and proliferation of malware is detected, monitored and intercepted through FireEye Products and Detection Content is analyzed and response techniques implemented, tested and improved; (d) “Detection Content” means software, signatures and other data collected by the Product, including via the Content Feed Services, relating to malware or other software that could adversely effect the operation or otherwise damage the network or systems of Buyer or third parties or cause a computer to execute instructions not intended by its owner; (e) “Documentation” means the Product manuals, data sheets, Specification, catalogs, brochures, marketing and technical documents, promotional materials, publications, and any other documents that FireEye makes available to Buyer; (f) “FireEye” means FireEye, Inc. and its subsidiaries; (g) “Hardware” means that portion of a Product that is not the Licensed Program; (h) “Invoice” means the invoice issued by FireEye to Buyer in connection with the sale and/or license of the Products; (i) “Licensed Program” means a Product’s software, in machine-readable form, and the back-up copy, if any, of such Product software provided by FireEye; (k) “Price” means the price or fee that Buyer and FireEye have agreed as the price for the Product and specified on the applicable Invoice; (k) “Product” or “Products” means each product or the products, respectively, purchased under this Agreement including, where applicable, any Content Feed Services; (l) “Shipment Date” means the date upon which FireEye originally makes the applicable Product available to a common carrier at FireEye's or its manufacturer’s facility for shipment to Buyer; (m) “Software License Agreement” means that certain license agreement between FireEye and Buyer in the form set forth on Exhibit A hereto; (n) “Specification” means for a Product, the specification included in such Product’s packaging; and (o) “Support Agreement” means a support agreement between FireEye and Buyer in the form set forth on Exhibit B hereto.

2. PURCHASE; PRICES - Buyer purchases from FireEye, and FireEye sells to Buyer, the Products in the amounts and for the prices set forth in the Invoice and otherwise on the terms and conditions set forth in this Agreement. Buyer shall use the Products purchased hereunder for Buyer’s own internal business purposes and not for distribution or resale. Unless otherwise specified by FireEye, Prices are for the specific quantity or term agreed between the parties and do not include charges for transportation, installation, insurance, financing, special packaging, handling, marking, applicable excise, sales, use, value added, withholding or similar taxes or export or import licenses, customs, tariffs, fees, taxes, duties and the like. Buyer shall bear the cost of any such charges in addition to the prices quoted or invoiced and shall indemnify, defend and hold FireEye harmless from and against such charges. Prices are in U.S. dollars. The Content Feed Services will be sold based on an initial one-year term commencing on the date identified to Purchaser as the effective date therefore or if no such date is identified, then the date on which the relevant covered Product is invoiced to Customer, provided Customer has paid the appropriate Price therefore (the “Content Feed Commencement Date”) and shall continue in full force and effect for a period of one (1) year from the Content Feed Commencement Date (the “Initial Term”). Thereafter, this Agreement shall automatically renew for continuous one-year periods (or for a shorter period of time as FireEye shall have the right to indicate) at the then current list price unless either party notifies the other of its intent not to renew at least sixty (60) calendar days prior to the renewal date.

3. PAYMENT TERMS - FireEye reserves the right in its sole discretion to require payment in advance or C.O.D. or to otherwise modify credit terms either before or after shipment of any or all of the Products specified herein. Upon credit approval by FireEye, FireEye may permit that payment for the Products purchased hereunder be due and payable in United States dollars at the Prices agreed between the parties net thirty (30) days after the applicable invoice date. If at any time, Buyer is delinquent in the payment of any invoice, or has otherwise breached this Agreement, FireEye may, at its discretion, and without prejudice to its other rights, withhold shipment (including partial shipment) or may, at its option, require Buyer to prepay for further shipments. Any sum not paid by Buyer, when due, shall bear interest until paid at a rate of 1% per month (12% per annum) or the maximum rate permitted by law, whichever is less. Buyer hereby grants FireEye a security interest in the Products purchased under this Agreement to secure payment for any Products purchased by Buyer. If requested by FireEye, Buyer shall execute financing statements to perfect this security interest.

4. SHIPMENT – The Products shipped hereunder shall be packaged in FireEye's standard shipping cartons and shall be delivered to a common carrier Ex Works (Incoterms 2000) FireEye's or its manufacturer’s facility, at which time title and risk of loss shall pass to Buyer. Delivery shall be deemed made upon transfer of possession to the common carrier. In the absence of written instructions from Buyer, FireEye shall select the common carrier but shall not thereby assume any liability in connection with the shipment, nor shall the common carrier be construed to be the agent of FireEye. All freight, insurance, and other shipping expenses, as well as expenses for any special packing requested by Buyer, shall be paid by Buyer.

5. SHIPMENT DATE – Any Shipment Dates agreed between the parties shall be considered estimates only. FireEye shall use reasonable commercial efforts (a) to meet any such proposed Shipment Dates and (b) in the event that any proposed Shipment Date cannot be met, to notify Buyer prior to such proposed Shipment Date, advising Buyer of a new proposed Shipment Date. Shipments may be made in installments. Default or delay by FireEye in shipping all or any part or installment of the Products under this Agreement shall not affect any other portion thereof.

6. CANCELLATION; RESCHEDULING - Buyer may not cancel the purchase, nor reschedule the shipment or delivery, of all or any part or installment of the Products ordered under this Agreement.

7. FIREEYE’S LIMITED WARRANTY
7.1 Limited Warranty. Except as otherwise provided herein, FireEye warrants to Buyer for each Product purchased hereunder that (a) the Hardware shall be free from material defects in materials and workmanship for a period of ninety (90) calendar days from the Shipment Date and (b) the Product shall substantially conform to the Specification for a period of ninety (90) calendar days from the Shipment Date. This warranty extends only to the original Buyer and may not be assigned. FireEye’s sole liability and Buyer’s exclusive remedy under this limited warranty shall be limited to repair or replacement of the non-conforming Product at FireEye’s sole option. Notwithstanding this warranty, FireEye shall have no obligation or responsibility with respect to any Product if it (a) has been modified or altered without FireEye’s prior written authorization; (b) has not been used in accordance with the Documentation; (c) has been subjected to neglect, misuse, accident, abuse, unauthorized repair, improper installation, inadequate maintenance or unusual electrical or physical stress; or (d) has been subjected to improper storage, testing or connection.

7.2 Warranty Returns. Buyer may return to FireEye any defective Product subject to the limited warranty in Section 7.1. Prior to such return, Buyer shall verify that the Product is defective and shall obtain from FireEye a Return Material Authorization ("RMA") number. Buyer shall request each RMA number from FireEye in accordance with FireEye’s RMA procedures including providing the part number, serial number and reason for return, an explanation of all failure symptoms and other relevant information. FireEye shall use commercially reasonable efforts to send to Buyer an RMA form and RMA number within five (5) business days of Buyer's request therefore. Within five (5) business days after receiving an RMA number for the Product, Buyer shall package the Product in its original packing material or equivalent, write the RMA number on the outside of the package and return the Product, at Buyer's cost, shipped properly insured, freight prepaid, DDP (Incoterms 2000) FireEye’s designated facility. Buyer shall enclose with the returned Product the applicable RMA form, and any other documentation or information requested by FireEye. Buyer shall assume any and all risk of loss of or damage to the Product during shipping. If FireEye elects to repair or replace the Product, FireEye may, in its sole discretion, use new or reconditioned parts or Product as applicable (in each case, of better or equivalent quality). FireEye shall pay the shipping costs to return the Product to the location from which it was returned by Buyer, but Buyer shall bear any and all risk of loss of or damage to the Product at all times after the Product is made available by FireEye to the common carrier. Any Product that has been returned, but that FireEye determines not to be defective, or that is not otherwise covered under the limited warranty in Section 7.1, shall be returned to Buyer at Buyer's sole expense and risk. Title to any Product returned under warranty shall at all times remain with Buyer unless and until FireEye replaces the Product at which time title to the Product shall pass to FireEye. The warranty period of any repaired or replaced Product shall be the longer of (a) ninety (90) calendar days from FireEye’s return shipment of the Product or (b) the original warranty period for the Product. FireEye shall not be responsible for any software, firmware, information, memory, data of Buyer or any their party contained in, stored on or integrated with any Product returned to FireEye for repair, whether under warranty or not.

7.4 Warranty Disclaimer. OTHER THAN THE EXPRESS LIMITED WARRANTIES IN SECTION 7.1 HEREOF OR IN THE WARRANTY MADE IN CONNECTION WITH ANY SUPPORT SEPARATELY PURCHASED BY BUYER FROM FIREEYE, FIREEYE MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, FIREEYE AND ITS SUPPLIERS HEREBY SPECIFICALLY DISCLAIM 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. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY THE LAW OF THE APPLICABLE JURISDICTION. EXCEPT AS OTHERWISE PROVIDED ABOVE, THE PRODUCT, LICENSED PROGRAM AND DOCUMENTATION ARE LICENSED ON AN “AS IS” BASIS WITHOUT WARRANTY. FIREEYE AND ITS SUPPLIERS DO NOT WARRANT THAT (A) THE OPERATION OF THE PRODUCT SHALL BE UNINTERRUPTED OR ERROR FREE; (B) THE PRODUCT AND DOCUMENTATION SHALL MEET BUYER’S REQUIREMENTS; (C) THE PRODUCT SHALL OPERATE IN COMBINATIONS AND CONFIGURATIONS SELECTED BY BUYER OR (D) ANY LICENSED PROGRAM ERRORS SHALL BE CORRECTED. THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 7.4 SHALL APPLY EVEN IF THE EXPRESS LIMITED WARRANTIES MADE BY FIREEYE ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

8. INDEMNITY - Except as otherwise provided in this Agreement, FireEye shall defend, or at its option settle, or pay any damages finally awarded in any claim, suit or proceeding brought against Buyer alleging that the use or sale of the Products infringe any trade secret, United States patent, United States copyright or United States trademark of any third party; provided that Buyer notifies FireEye promptly in writing of such claim, suit or proceeding and gives FireEye sole control of any defense or settlement thereof, and, at FireEye's expense, gives FireEye proper and full information and assistance. If during the course of any infringement claim, suit or proceeding that FireEye is required to defend Buyer hereunder, the use or sale of the allegedly infringing Product is finally enjoined, then FireEye shall at its option and expense use commercially reasonable efforts to do one of the following: (a) procure for Buyer a license to continue to use the Product; (b) replace the Product or the affected part thereof with equivalent non-infringing technology; or (c) modify the Product or the affected part thereof to make it non-infringing but equivalent. FireEye shall have no obligation whatsoever pursuant to this Section 8 or otherwise for or with respect to any infringement claim, suit or proceeding arising out of or related to: (a) a use of other than the current version of any Product, if the infringement would have been avoided by use of the current version; (b) the modification of any Product by a party other than FireEye; (c) the combination or use of any Product with materials not furnished by FireEye, if the infringement would have been avoided by the use of the FireEye materials alone; (d) the use of any Product in a way not specified in writing by FireEye or (e) designs, instructions, specifications or intellectual property not developed by FireEye or not furnished by FireEye. THE INDEMNITY CONTAINED IN THIS SECTION 8 STATES THE SOLE LIABILITY OF FIREEYE AND ITS SUPPLIERS WITH RESPECT TO ANY AND ALL INFRINGEMENT BY ANY PRODUCT, OR ANY PARTS THEREOF, OF ANY PATENTS, TRADEMARKS, TRADE SECRETS, COPYRIGHTS, MASK WORKS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY AND IS EXPRESSLY IN LIEU OF ALL WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN REGARD THERETO.

9. SUPPORT –Buyer may purchase support from FireEye on the terms and conditions set forth in the Support Agreement.

10. SOFTWARE – Notwithstanding anything contained in this Agreement to the contrary, Licensed Programs provided to Buyer hereunder are subject to license, and not sale, in accordance with the terms and conditions of the Software License Agreement. Buyer shall not and shall not authorize any third party to: (a) copy, alter or in any way modify the Licensed Programs without the prior written consent of FireEye or create derivative works, as defined under 17 USC §106 (as interpreted by applicable case law); (b) translate, decompile, disassemble, reverse compile, reverse engineer, interrogate, or decode the Licensed Programs or in any other manner reduce the Licensed Programs to human perceivable form except to the extent (but only to such extent) that any restrictions set forth in this clause (b) are not permitted under applicable law; (c) bypass or delete any copy protection methods that are intended to prevent unauthorized copying or use of the Licensed Programs; or (d) electronically distribute, timeshare, market by interactive communication means or by remote processing services the Licensed Programs. Except as expressly authorized under this Agreement, Buyer shall not and shall not authorize any third party to copy, use or disclose the Licensed Programs or their functions on behalf of or in relation to any third party products, devices or services or to any third parties. Buyer acknowledges, that the licenses granted pursuant to this Agreement do not provide Buyer with any title or ownership rights in or to the Licensed Programs, but only a right of limited use.

11. PROPRIETARY RIGHTS - Buyer shall not remove, alter, cover or obfuscate any proprietary rights notices, such as patent, copyright or confidentiality notices, on or in any Product, Licensed Program or Documentation, other materials or copies thereof, unless agreed in writing by FireEye. Except as expressly set forth herein or otherwise agreed by FireEye, FireEye and its licensors shall own all right, title and interest in the Products and Licensed Programs, and any modifications thereto. FireEye and its licensors shall retain all right, title and interest in and to the Products and Licensed Programs, and Buyer may not transfer, distribute, rent, or grant any intellectual property rights in the Products or Licensed Programs to any party. FireEye shall own all right, title and interest in (a) the Documentation; (b) the Detection Content; (c) any modifications, alterations, translations or derivative works of the Documentation or the Detection Content, regardless of by whom made; and (d) all intellectual property rights related to the foregoing, unless otherwise agreed in writing by FireEye. Buyer shall have no claim or right in any name, logo, trademark, service mark, trade name or other mark owned, used or claimed by FireEye now or in the future. ALL RIGHTS IN THE PRODUCTS, DOCUMENTATION, DETECTION CONTENT AND LICENSED PROGRAMS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO FIREEYE.

12. EXCUSABLE DELAYS - FireEye shall not be charged with any liability for delay or failure to perform any of its obligations hereunder if such delay or failure to perform is due to causes or events beyond FireEye’s control, whether or not foreseeable by either party, including without limitation delay of suppliers, force majeure, act of God, labor disturbance or strike, war, terrorist acts, fire, explosion, earthquake, accident, adverse weather, inability to secure transportation, governmental act or regulation, inability of FireEye to obtain materials, shortage of materials and any other causes or events beyond FireEye’s control, whether or not similar to those enumerated above. In any such event, the Shipment Date will be deemed extended for a period equal to the delay. FireEye reserves the right to allocate in its sole discretion among customers or potential customers, or to defer or delay the shipment of, any Products which are in short supply.

13. CONFIDENTIALITY. Buyer agrees that aspects of the Products and Documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of FireEye. Buyer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of FireEye and shall implement reasonable security measures to protect such trade secrets and copyrighted material.

14. 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 THE PRODUCTS 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 AGGREGATE PRICE PAID BY BUYER TO FIREEYE 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.

15. DAMAGES WAIVER - IN NO EVENT SHALL FIREEYE BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES BY BUYER. NEITHER FIREEYE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS OR OTHERWISE, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF GOODWILL, LOSS OR DAMAGE OF DATA OR SYSTEM USE OR OTHER BUSINESS LOSS, REGARDLESS OF WHETHER SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

16. GENERAL PROVISIONS
16.1 Entire Agreement. This Agreement, the Support Agreement, if any, and the Software License Agreement constitute the entire understanding, express or implied, oral or written, between Buyer and FireEye with respect to the subject matter hereof and supersede any and all prior Agreements, discussions and understandings, express or implied, oral or written, between Buyer and FireEye; provided, however, that in the event there is a pre-existing written contract covering the sale of Products executed by FireEye and Buyer, the sale of Products shall be subject to the terms and conditions of said pre-existing contract. In the event of any inconsistency between the terms and conditions contained in the “Terms and Conditions of Sale” section of this Agreement and the terms and conditions contained on the face of any Invoice, the terms and conditions contained on the face of the Invoice shall apply. In the event of any inconsistency between the terms and conditions contained in this Agreement and the terms and conditions contained in the Software License Agreement, the terms and conditions contained in the Software License Agreement shall apply. TO THE EXTENT THIS AGREEMENT IS INCONSISTENT WITH, OR MATERIALLY ALTERS, ANY TERMS OR CONDITIONS OF BUYER’S ORDER OR OTHER DOCUMENT, THIS AGREEMENT SHALL PREVAIL. FIREEYE SHALL NOT BE BOUND BY ANY TERMS OR CONDITIONS OF BUYER’S ORDER OR OTHER DOCUMENT THAT ARE ADDITIONS TO OR INCONSISTENT WITH, OR MATERIALLY CHANGE, ANY TERMS OR CONDITIONS SET FORTH IN THIS AGREEMENT.

16.2 Choice of Law; Jurisdiction. This Agreement 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.

16.3 Assignment. The rights and obligations under this Agreement are personal and may not be transferred or assigned directly or indirectly except upon written consent of the non-assigning party; except however (a) FireEye may assign its right to payment and (b) either party may assign this Agreement to an affiliate or successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

16.4 Construction of Agreement; Waivers and Amendments. 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. Headings used herein are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Unless otherwise provided in this Agreement, the rights and obligations of the parties under this Agreement may be amended, changed, modified, waived or discharged only by a written instrument effecting such amendment, change, modification, waiver or discharge signed by an authorized representative of the party against whom enforcement is sought. The parties hereto agree that no delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of the other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.

16.5 Compliance with Laws. Each party shall comply with all laws, regulations, orders and other governmental or other competent authority requirements (“Applicable Laws”) in performing its obligations and exercising its rights under this Agreement (including without limitation all applicable export, re-export and import laws and regulations). This Agreement is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of any technology, products incorporating technology or information pertaining thereto which may be imposed from time to time by the Government of the United States of America or any agency thereof. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall not export or re-export, directly or indirectly, any technology, products incorporating technology or information pertaining thereto to any country for which the Government of the United States of America or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Buyer shall maintain a record of exports, re-exports and transfers of the Products according to United States and local laws. Buyer shall indemnify, defend and hold FireEye harmless from and against any violation or alleged violation of any Applicable Laws.

16.6 United States Government Contract Provisions and Clauses. In the event any Products purchased hereunder are sold, or are incorporated into products that are sold, under a United States Government contract, any and all provisions or clauses required to be passed on to FireEye pursuant to said contract are hereby rejected by FireEye and shall not be deemed included herein or binding on FireEye unless and until specifically accepted in a writing executed by an authorized representative of FireEye.

16.7 Mediation. If any dispute arises out of or related to this Agreement, the parties hereto agree first to try in good faith to settle the dispute by mediation. In the event of such a dispute, either party may initiate the mediation by so requesting in a writing delivered to the other party. Within ten (10) calendar days of such a request for mediation, the parties hereto shall confer for the purpose of selecting a mutually agreeable mediator. If the parties hereto have not been able to agree upon a mediator within twenty (20) calendar days of the request for mediation, either party may request that the Judicial Arbitration and Mediation Services (JAMS) appoint a mediator. Said mediation shall take place in the County of Santa Clara, California.

16.8 Litigation Expenses. The prevailing party in any action or proceeding to enforce or interpret any part of this Agreement shall be entitled to recover its reasonable expenses including without limitation attorney’s fees (including fees on any appeal). 16.10 Basis of the Bargain. EACH PARTY HERETO RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS CONTAINED IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

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TERMS AND CONDITIONS FOR FIREEYE SUPPORT PROGRAMS

As part of FireEye’s  commitment to providing our customers with ongoing support for their use of FireEye products, the following terms and conditions (this “Agreement”) shall govern the provision of support services provided by FireEye to the purchasers of support (“Customer”) covering the FireEye products designated in the relevant invoice for such support (the “Products”).

THE TERMS AND CONDITIONS SET FORTH HEREIN CONSTITUTE THE ENTIRE AGREEMENT BETWEEN FIREEYE AND CUSTOMER RELATING TO FIREEYE’S SUPPORT PROGRAMS.  FIREEYE SHALL NOT BE BOUND BY ANY TERMS OR CONDITIONS OF CUSTOMER’S ORDER FOR SUPPORT OR ANY OTHER DOCUMENT.  ANY ACCEPTANCE BY FIREEYE OF CUSTOMER’S ORDER FOR THE SUPPORT PROGRAM IS EXPRESSLY CONDITIONED ON ASSENT BY CUSTOMER TO THE TERMS OF THIS AGREEMENT AND THE EXCLUSION OF ALL OTHER TERMS EXCEPT AS MAY BE SET FORTH IN A WRITTEN AGREEMENT SIGNED BY FIREEYE AND THE CUSTOMER EXPRESSLY SUPERSEDING THESE TERMS.    CUSTOMER SHALL BE DEEMED TO HAVE ASSENTED TO THE TERMS OF THIS AGREEMENT UPON ACCEPTING DELIVERY OF ANY PRODUCT SHIPPED BY FIREEYE SUBJECT TO THE FIREEYE’S SUPPORT PROGRAM DESCRIBED HEREIN.  IF TENDER OF THESE TERMS IS DEEMED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS HEREOF.

In the event Customer has purchased the Products 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 within thirty (30) days of the date the covered Products were shipped to Customer; and (c) has maintained and updated this information to keep it true, accurate, current, and complete. 

1    SERVICES PROVIDED BY FIREEYE.
FireEye offers a range of programs for the support of its products.  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 Annual Support Fee (as defined below) therefore.

Software Subscription Service– includes each of the following:
Software Updates.  During the term of this Agreement, FireEye shall provide Customer notification of bug fixes, patches and 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.  For purposes of this Agreement, “Licensed Software” shall mean the Product software, in machine-readable form, originally licensed to Customer by FireEye.

Software Error Corrections.  During the term of this Agreement, FireEye shall use reasonable efforts to correct any reproducible programming error in the Licensed 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 Licensed 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 Licensed Software.

Standard Support includes all of the services set forth above under Software Subscription Service plus each of the following:
Email or Fax Support.  During the term of this Agreement, FireEye shall provide Customer technical email or fax support for the Products during the hours from 8:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday, excluding holidays.  FireEye’s support technician shall only be obligated to respond to Customer’s designated contacts.

FireEye shall respond to and use diligent efforts to provide technical assistance within that business day, or by the next succeeding business day of receiving an inquiry from Customer if received during a business day (or if received on a day other than a business day, on the second succeeding business day) regarding use or installation of the Product that are communicated to FireEye through its support email address or by facsimile to the attention of FireEye’s support engineers.

Return. During the term of this Agreement, Customer shall have the right to return to FireEye any defective Product subject to the limited warranty.  Prior to any such return, Customer shall verify that said Product is defective and shall obtain from FireEye a Return Material Authorization (“RMA”) number.  Customer shall request each RMA number from FireEye 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.  Within five (5) business days after FireEye issues an RMA number for the defective Product, Customer shall package said Product in its original packing material or equivalent, write the RMA number on the outside of the package and return said Product, at Customer's cost, shipped properly insured, freight prepaid, DDP (Incoterms 1990) FireEye’s designated facility. Customer shall enclose with the returned Product the applicable RMA form, and any other documentation or information requested by FireEye.  Customer shall assume any and all risk of loss of or damage to such Product during shipping.  FireEye shall ship via a recognized express courier service the repaired Product or a replacement Product to Customer no later than ten (10) business days after FireEye’s receipt of the defective Product from Customer.  In repairing or replacing any defective Products, FireEye may use new or reconditioned parts or Product, as the case may be, of better or equivalent 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.  Title to any Product returned hereunder shall at all times remain with Customer unless and until FireEye replaces such Product at which time title to such Product shall pass to FireEye.  The warranty period of any replacement Product shall be the longer of (a) ninety (90) calendar days from FireEye’s shipment of said Product or (b) the remainder of the applicable warranty period for said Product pursuant to the purchased support Program.

Premium Support includes all of the services set forth above under Software Subscription Service plus each of the following:
Telephone Support.  During the term of this Agreement, FireEye shall provide Customer technical telephone support for the Product through FireEye’s toll free support line. The support line shall provide notification to support technician twenty-four (24) hours per day. Customer technical email or fax support for the Products during the hours from 8:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday, excluding holidays. FireEye’s support technician shall only be obligated to respond to Customer’s designated contacts.

Support via Internet, telephone or Facsimile.  FireEye shall respond to and use diligent efforts to answer questions and resolve problems that are communicated to FireEye through the support email address, telephone or by facsimile to the attention of FireEye’s support engineers within two (2) hours of receiving an inquiry from Customer of that then business day regarding use or installation of the Product.

Returns. During the term of this Agreement, Customer shall have the right to return to FireEye any defective Product subject to the limited warranty set forth in the Advance Return provisions set forth below. 
Advance Return

Prior to any return as to which Advance Return applies, Customer shall first verify that said Product is defective and shall obtain from FireEye a Return Material Authorization ("RMA") number.  Customer shall request each RMA number from FireEye 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.  FireEye shall ship via a recognized express courier service a replacement Product to Customer no later than one (1) business day after FireEye’s issuance of an RMA number.  The replacement Product may be a new or reconditioned Product (of better or equivalent 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.  Within five (5) business days after FireEye issues an RMA number for the defective Product, Customer shall package said Product in its original packing material or equivalent, write the RMA number on the outside of the package and return said 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, DDP (Incoterms 1990) 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 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 FireEye issues an RMA number for the defective Product, FireEye may charge Customer, and Customer shall pay for the replacement Product at the then current list price.  The warranty period of any replacement Product shall be the longer of (a) ninety (90) calendar days from FireEye’s shipment of said Product or (b) the remainder of the applicable warranty period.  In addition, in the event a Product completely fails to function or exhibits a defect in materials or workmanship within the first ninety (90) calendar days after the shipment date of the Product by FireEye to Customer, FireEye will replace the defective product only with an equivalent or better quality new Product. 

Special Services 
FireEye agrees to use 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 then current rates and other terms and conditions for such services as quoted by FireEye at such time.

2    CUSTOMER RESPONSIBILITIES.
2.1    Customer Assistance. Customer agrees to provide FireEye reasonable access to all necessary personnel to answer questions or resolve problems reported by Customer regarding the Products.  Customer also agrees to promptly implement all Updates and error corrections provided by FireEye under this Agreement.  Customer shall allow FireEye access as needed to the Products via the Internet for the purpose of providing support services.  Customer shall maintain FireEye supported versions of required third party software, if any.

2.2    Contact People. Customer shall appoint at least two (2) but no more than five (5) individuals 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. Customer agrees to use reasonable efforts to resolve internally any support questions prior to requesting support services pursuant to this Agreement.

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 it was not designed; (v) accident, abuse, neglect, unauthorized repair, inadequate maintenance or misuse of the Products; (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 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 shall only be obligated to support (i) the then current production version of the Products and (ii) the immediately prior version of the Products for a period of one (1) year after the release of the then current production version of the Products.  Support for any earlier versions or for other problems not covered under this Agreement may be obtained at FireEye's then current terms and conditions for such services.

4    COMPENSATION AND TAXES.
Compensation.   As compensation for the Initial 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 Annual Support Fee. (the “Annual Support Fee”).  Thereafter, FireEye shall invoice Customer for the Annual Support Fee for any renewal period no earlier than sixty (60) calendar days prior to the expiration of the then current term at an Annual Support Fee equal to the list price therefore as published by FireEye less any applicable discount agreed with Customer.  If pursuant to Section 5.1 FireEye indicates that the renewal period shall be for a period shorter than one (1) year, then the Annual Support Fee shall be prorated accordingly.  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 Annual 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.  Charges for any special services, including travel expenses, shall be invoiced monthly as such expenses are incurred; payment of such invoices shall be due and payable in United States dollars within thirty (30) calendar days of the date of the invoice.

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.

5    TERM AND TERMINATION.
5.1    Term.  The term of this Agreement shall commence upon the date identified to Customer by FireEye as the Effective Date hereof or if no such date is identified, then the date on which the relevant covered Product is invoiced to Customer, provided Customer has paid the appropriate Annual Support Fee therefore (the “Effective Date”) and shall continue in full force and effect for a period of one (1) year from the Effective Date (the “Initial Term”).  Thereafter, this Agreement shall automatically renew for continuous one-year periods (or for a shorter period of time as FireEye shall have the right to indicate) on the anniversary date of this Agreement at a price not less than the Price paid by Customer for the Initial Term, unless either party notifies the other of its intent not to renew at least thirty (30) calendar days prior to the renewal date.  The provisions of Sections 5 through 9 shall survive any termination or expiration of this Agreement and shall continue to apply in accordance with their terms.

5.2    Upgrade.  Customer may at any time during the term of this Agreement upgrade to FireEye’s next level of Support Program by (i) notifying FireEye of Customer’s desire to upgrade, (ii) acknowledging in writing the Terms and Conditions then current for the relevant Support Program and (iii) paying FireEye the additional Annual Support Fee owed in connection with such upgraded Support Program.  Upon the date agreed to by FireEye as the effective date therefore, the provisions of this Agreement shall be given effect in respect of the upgraded Support Program and Customer shall receive credit for any unearned amounts paid hereunder by Customer.  Said credit shall be applied towards the upgraded Support Program’s Annual Support Fee. 

5.3    Termination.  This Agreement shall terminate (i) upon the termination of the agreement between FireEye and Customer that licenses the Licensed Software from FireEye to Customer (the “License Agreement”); (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 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 License Agreement.

6.2    Warranty Disclaimer.  All Updates or other modifications to the Licensed Software provided hereunder are subject to the warranty in the License Agreement.  Nothing in this Agreement shall be construed as expanding or adding to the warranty in the License Agreement.  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.  OTHER THAN THE EXPRESS LIMITED WARRANTIES MADE BY FIREEYE IN THE EXTENDED WARRANTY PROGRAM, 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 CONDTIONS 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 BUYER 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 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 with the License 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.  In the event of any inconsistency between the terms and conditions contained in this Agreement and the terms and conditions contained in the License Agreement, the terms and conditions contained in the License Agreement shall apply.  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.