Professional Services Terms and Conditions
1. Scope of Services.
FireEye will provide Customer with consulting services and deliverables (the "Services") pursuant to these Professional Services Terms and Conditions and described in either: (i) a statement of work mutually approved by FireEye and Customer (the "Statement of Work"); or (ii) a package of bundled professional services made generally available by FireEye with each bundle's SKU selected by Customer in a purchase order (each SKU a "Services Package"). If a Statement of Work is used, it will include, at a minimum: (a) a description of the Services, including any Deliverables (as that term is described in Section 5.1 below); (b) the schedule relating to the provision of such Services; (c) the applicable fees and payment terms for such Services, if not elsewhere specified; and (d) any other applicable terms and conditions. The Statement of Work and Services Package, as applicable, shall be deemed part of and subject to these Professional Services Terms and Conditions and shall be collectively referred to herein as (this "Agreement").
2. Term.
2.1 Termination. This Agreement shall commence on the effective date of the Statement of Work or Services Package, as applicable, and shall continue until the parties mutually agree to terminate this Agreement or unless earlier terminated as provided herein.
2.2 Use Within Twelve (12) Months. The Services must be used within twelve (12) months of the effective date of the Statement of Work or Services Package, as applicable, or they will be forfeited, notwithstanding any shorter period referenced in the Statement of Work.
3. Payment Terms and Invoicing.
3.1 Fees. Fees for Services and Deliverables are set forth in the Statement of Work or Services Package, as applicable.
3.2 Invoicing. FireEye shall invoice Customer for Services set forth in the Statement of Work on a time and materials basis based on FireEye's actual hours worked. Each invoice shall indicate the nature of the work performed and any reasonable expenses incurred by FireEye with appropriate receipts and/or documentation, unless such expenses are included as part of the pricing in the Statement of Work or Services Package, as well as the total amount due. Payment shall be made in the currency specified in the invoice without set-off and in immediately available funds within thirty (30) days from the invoice date.
3.3 Taxes. Customer will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-U.S. government entity on the transactions contemplated by this Agreement, excluding taxes based upon FireEye's net income.
4. Confidential Information.
4.1 Confidential Information. "Confidential Information" means the non-public information that is exchanged between the parties, provided that such information is: (i) identified as confidential at the time of disclosure by the disclosing party ("Discloser"), 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 and conditions of this Agreement, the nature of the discussions and the relationship between the parties, and the terms of any commercial transaction between the parties shall be considered Confidential Information.
4.2 Maintenance of Confidentiality. 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) limit disclosure to those person's within Recipient's organization with a need to know and who have previously agreed in writing, prior to receipt of Confidential Information either as a condition of their employment or in order to obtain the Confidential Information, to obligations similar to the provisions hereof; (iii) 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 (iv) comply with and obtain all authorizations required by all applicable export control laws or regulations. Confidential Information shall not be reproduced in any form except as required to accomplish the purposes and intent of this Agreement. Any reproduction of Confidential Information shall be the property of Discloser and shall contain any and all notices of confidentiality contained on the original.
4.3 Exceptions. The parties agree that the foregoing shall not apply to any information that Recipient can evidence: (i) is or becomes publicly known and made generally available through no improper action or inaction of Recipient; (ii) was already in its possession or known by it prior to disclosure by Discloser to Recipient; (iii) is independently developed by Recipient without use of or reference to any Confidential Information; or (iv) was rightfully disclosed to it by a third party Recipient rightfully obtains from a third party. Recipient may make disclosures required by law or court order provided that Recipient: (a) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; (b) has given prompt advance notice to Discloser of such required disclosure; and (c) has allowed Discloser to participate in the proceedings.
4.4 Each party will retain all right, title and interest to such party's Confidential Information. 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 any and all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.
5. Acceptance Testing; Back-Up.
5.1 Acceptance Testing. Customer shall have ten (10) days from Customer's receipt of each deliverable described in a Statement of Work or Services Package, as applicable (a "Deliverable") to test such Deliverable (the "Acceptance Period") to determine whether there are any material defects in the Deliverables which prevent the Deliverables from substantially conforming to the written specifications set forth in the Statement of Work or Services Package, as applicable (the "Specifications"). After Customer has completed the testing described in this Section, Customer will notify FireEye in writing either that: (i) the Deliverable conforms to the Specifications and acceptance has occurred ("Acceptance"); or (ii) the Deliverable does not so conform to the Specifications. Acceptance shall also be deemed to occur if Customer does not notify FireEye of its acceptance or rejection of a Deliverable prior to the expiration of the Acceptance Period. Upon receipt of such notice of non-conformance, FireEye will correct and re-deliver such Deliverable.
5.2 Back-Up. Customer shall be solely responsible for, and shall follow proper backup procedures for all data and records to protect against loss or error resulting from use of any or all parts of the Deliverables.
6. License.
6.1 License Grant. Subject to Customer's timely payment of applicable fees, and subject to the terms of this Agreement, Customer shall have a perpetual, non-exclusive, non-transferable, right and license to (unless otherwise set forth in a Statement of Work) use, display and reproduce the Deliverables for its internal business purposes.
6.2 License Restrictions. Customer shall not, and shall ensure that its sublicensees do not: (i) decompile, reverse engineer, disassemble, or otherwise reduce the Deliverables to human-readable form; or (ii) modify, adapt, translate, rent or sublicense (except as otherwise expressly provided herein), or create derivative works of the Deliverables.
6.3 Customer-Owned Property. Customer will be and remain, at all times, the sole and exclusive owner of the Customer-Owned Property (including, without limitation, any modification, compilation, derivative work of, and all intellectual property and proprietary rights contained in or pertaining thereto). "Customer-Owned Property" means any technology, software, algorithms, formulas, techniques or know-how and other tangible and intangible items that were owned by Customer, or developed by or for Customer prior to the effective date of the Statement of Work or Services Package, as applicable, that are provided by Customer to FireEye for incorporation into or used in connection with the development of the Deliverables.
6.4 Ownership. All rights, title and interest in and to the Deliverables (except any Customer-Owned Property), and related intellectual property rights, remain in and/or are assigned to FireEye. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise ("Tools") used by FireEye to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term "Deliverables" shall not include the Tools. The parties will cooperate with each other and execute such other documents as may be appropriate to achieve the objectives of this Section.
6.4 Competitive Materials. This Agreement shall not preclude FireEye from developing materials outside of this Agreement which are competitive, irrespective of their similarity to materials which might be delivered to Customer pursuant to this Agreement. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of FireEye to provide consulting, development, or other services of any kind or nature whatsoever to any individual or entity as FireEye in its sole discretion deems appropriate.
7. Change Orders.
Customer may from time to time desire to make changes to the Statement of Work or Services Package, as applicable. In such case, FireEye will, at Customer's written request, prepare an estimate setting out the proposed changes, the cost, and the time frame for delivery and/or completion ("Change Order"). If Customer accepts the Change Order, it will be made an addendum to this Agreement or a new Statement of Work shall be prepared and agreed to between the parties in writing.
8. Indemnity.
Customer will defend, indemnify and hold FireEye harmless from all costs, damages and claims incurred by FireEye arising from Customer's performance under this Agreement.
9. Limitation on Damages.
9.1 FIREEYE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR LOSS OF DATA, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
9.2 FIREEYE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO FIREEYE FOR THE SERVICES.
9.3 Disclaimer of Warranties. THE DELIVERABLES AND SERVICES ARE PROVIDED "AS IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIREEYE DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS AND WARRANTIES REGARDING THE DELIVERABLES AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES RELATING TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND TITLE. FIREEYE DOES NOT WARRANT THAT THE DELIVERABLES ARE FREE FROM BUGS, ERRORS OR OTHER PROGRAM LIMITATIONS.
9.4 THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND NOTHING IN THIS AGREEMENT PURPORTS TO LIMIT FIREEYE'S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
10. Termination.
10.1 Breach. If Customer fails to comply in material respects with all covenants, agreements or conditions herein and such failure continues for thirty (30) days after written notification from the non-breaching party, FireEye may then, at its sole discretion, upon twenty-four (24) hours notice to the breaching party, terminate the Statement of Work or Services Package, as applicable.
10.2 Effect of Termination. Upon termination or other expiration of this Agreement: (i) Customer shall pay FireEye for all unpaid fees and expenses, including those related to Services performed prior to such termination or expiration (including any cancellation fees set forth in the Statement of Work or Services Package, as applicable); (ii) Customer's license to the Deliverables will immediately terminate; (iii) sublicenses to the Deliverables granted by Customer to its end user customers hereunder will continue, subject to such customers' continued compliance with the terms of the license agreement governing use of the Deliverables; (iv) each party shall forthwith return to the other party all papers, materials and other properties of such other party, including, without limitation, Confidential Information, held by each for purposes of performance under this this Agreement; and (v) each party will assist the other in termination of this Agreement as may be necessary for the orderly, non-disrupted business continuation of each party.
10.3 Survival. The obligations of any party which have been incurred prior to the effective date of termination (including, without limitation, the obligations of Customer under Section 3), and other provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, shall continue in full force and effect.
11. Independent Contractor. FireEye's relationship with Customer during the term of this Agreement will be that of an independent contractor. Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this Agreement shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party's activities or those of its employees or agents in the performance of this Agreement.
12. Export Control; Anti-Corruption; U.S. Government Restricted Rights.
12.1 Export Control. Customer represents and warrants that it shall comply with all laws and regulations applicable to Customer with respect to the purchase and use of the Deliverables. Customer further acknowledges and agrees that the Deliverables purchased, and licensed, under this Agreement may be subject to restrictions and controls imposed by the United States Export Administration Act, the regulations thereunder and similar laws in other jurisdictions. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, Customer covenants that it shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from FireEye under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States or any other jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. These prohibitions include, but are not limited to the following: (i) the Deliverables cannot be exported or re-exported to any countries embargoed by the United States (currently including Cuba, Iran, North Korea, Sudan or Syria) which includes nationals of these countries employed by Customer; (ii) the Deliverables cannot be exported or re-exported for military use in country group 'b' prior to valid 'export license' or valid 'license exception'; (iii) engineers cannot have access to FireEye's proprietary encryption source code; and (iv) the Deliverables cannot be used for any prohibited end uses including any 'nuclear, biological or chemical weapon related activities'. Customer agrees to notify FireEye of any suspicious activities by any employee related to the Deliverables. Customer agrees to indemnify, to the fullest extent permitted by law, FireEye from and against any fines or penalties that may arise as a result of Customer's breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
12.2 Anticorruption Laws. Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the "FCPA") and the U.K. Bribery Act of 2010 ("UKBA") and agrees to comply with its terms as well as any provisions of local law or FireEye's corporate policies and procedures related thereto. Customer further understands the provisions relating to the FCPA and UKBA's prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the Deliverables. Customer agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or antibribery law.
12.3 U.S. Government Restricted Rights. The Deliverables may be "commercial items", "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Deliverables by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. The Deliverables were developed fully at private expense.
13. Miscellaneous.
13.1 Publicity and Advertising. Notwithstanding any other provision of this Agreement, Customer may not issue press releases or endorsements which reference FireEye or include statements attributable to FireEye without the prior written consent of FireEye.
13.2 Assignment. Customer may not assign this Agreement, in whole or in part, without FireEye's prior written consent. Any attempt by Customer to assign this Agreement other than as permitted above will be null and void. FireEye shall have the right to assign all or part of this Agreement without Customer's approval. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of both parties, their successors and permitted assigns.
13.3 Right to Subcontract. FireEye may subcontract the performance of its obligations under this Agreement (including the provision of the Services) in whole or in part, without Customer's consent, to its affiliates and its approved third parties.
13.4 Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts in San Francisco County, California.
13.5 Force Majeure. FireEye shall not be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, any law, order or requirement of any governmental agency or authority, or any act or omission of employees or agents of Customer. In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of this Agreement and the schedule and the due dates of Services and Deliverables shall be adjusted accordingly.
13.6 Notice. Unless otherwise stated, all notices required under this Agreement shall be in writing and shall be considered given: (i) when delivered personally; (ii) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid; (iii) one (1) business day after dispatch, when sent via a commercial overnight carrier, fees prepaid; or (iv) upon delivery when sent by facsimile transmission confirmed by telephone. All communications will be addressed at the locations set forth above or as otherwise instructed.
13.7 Severability. If any provision of this Agreement is found illegal or unenforceable under the laws of any jurisdiction, such provision will be deemed restated, to the maximum extent permissible in accordance with applicable law, to reflect as nearly as possible the original intention of the parties, and the remainder of the Agreement will continue in full force and effect.
13.8 Entire Agreement. This Agreement represents the entire agreement of the parties hereto related to the subject matter hereof, and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement are superseded and of no force and effect. The terms and conditions of this Agreement supersede any terms or conditions of any purchase order, invoice or other document relating to the subject matter hereto. This Agreement may be modified only in a writing signed by authorized representatives of both parties. There are no oral or written collateral representations, agreements or understandings except as provided herein. Each party acknowledges that it is not entering into this Agreement on the basis of any representations not expressly contained in this Agreement.
13.9 Non-Solicitation. During the term of this Agreement, and for a period of one (1) year after completion of the most recent Deliverable, Customer will not solicit or encourage any of FireEye's employees to work elsewhere and Customer will not directly or indirectly hire or retain the services of any of FireEye's employees without the prior written consent of FireEye. In the event that Customer violates this provision, Customer will immediately remit to FireEye an employment fee equal to fifty percent (50%) of the employee's starting salary.
13.10 Security Clearance. Customer shall provide the necessary security specifications and/or DD254 to FireEye if security resources are required.
13.11 License Agreement. In the event the Services involve FireEye products licensed to Customer under a separate license agreement, unless otherwise provided herein, the terms set out in such separate license agreement shall apply with respect to each such FireEye product.
13.12 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
