FireEye iSIGHT End User License Agreement

IMPORTANT NOTE: PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING ANY FireEye iSIGHT PRODUCTS. THE INDIVIDUAL OR ENTITY (“CUSTOMER”) WHO USES ANY FIREEYE iSIGHT PRODUCTS OR WHO DOWNLOADS, INSTALLS AND/OR USES ANY ACCESS METHOD AGREES TO BE LEGALLY BOUND BY THE TERMS OF THIS EULA. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS EULA, THEN CUSTOMER MUST NOT USE ANY FIREEYE iSIGHT PRODUCTS OR ACCESS METHODS. PLEASE CONTACT FIREEYE (“FireEye”) WITH ANY QUESTIONS.

RECITALS

WHEREAS, FireEye is in the business of cyber threat intelligence and offers subscriptions to its FireEye iSIGHT products;

WHEREAS, Customer is an individual or entity, or an agent or representative of an individual or entity, who has contracted with FireEye for a subscription to FireEye iSIGHT products (the “Subscription”);

WHEREAS, FireEye currently offers various methods to access the Subscription and may develop new methods to access the Subscription;

WHEREAS, Customer is not required to purchase and/or use all methods by which it could access the Subscription;

WHEREAS, this EULA defines the terms and conditions of Customer’s use of the Subscription and use of the methods to access the Subscription.

DEFINITIONS

“Access Method(s)” or “Access Methods” means the iSIGHT FIIP Portal (“FIIP”), Software Development Kit (“SDK”), Application Programming Interface (“API”), Browser Plugin, iSIGHT App for Splunk, or any other method provided by FireEye for Customer to access the Subscription, individually or collectively.

“Application Programming Interface” or “API” means the latest version of the iSIGHT Application Programming Interface software developed by FireEye, with its Developer’s Guide and other related material ( http://www.isightpartners.com/doc/sdk-bp-docs/#/ ).

“Application” is a software program designed to access the Content which the Customer creates, or causes to have created on its behalf, that includes the features of the SDK/API but adds significant functionality besides that provided by the SDK/API.

“Browser Plugin” means the FireEye iSIGHT Browser Plugin which a Customer may install on Firefox and/or other commercially available and supported browsers that allows the Customer to access and view the Content when licensed to do so. The Browser Plugin displays the FireEye logo and links to FIIP. The Browser Plugin includes the latest version of the Browser Plugin software, its documentation and any html embedded code.

“Confidential Information” is defined in Section 15.

“Content” means the cyber threat intelligence data and any reports, threat indicators, trends, events, information, documentation or functionality provided in connection with the Subscription.

“Derivative Work(s)” are a customer-developed work that uses FireEye products, services, ideas, inventions, research, methods, or other information in any form or manner. To qualify as a Derivative Work, the work must contain a substantial amount of new material different from the FireEye Content and may contain only a minimal amount of the FireEye Content, whether, static images, referenced source material, quoted excerpts or conversations, video, written text, or other material taken from FireEye. For clarity, this definition does not apply to client created software solutions resulting from the use of the licensed Software Development Kit.

“End User” means the Customer and the Customer’s employees, officers, directors, agents, representatives, contract labor or a Managed Security Service Provider (MSSP) directly hired to support the Customer’s information systems and security.who are granted access to the Subscription for internal use only, regardless of the Access Method, under the terms of this EULA.

“FireEye iSIGHT Products” includes but is not limited to, Cyber Crime, Cyber Espionage, Critical Infrastructure, Enterprise, Hacktivism, Vulnerability and Exploitation, FIIP Portal, Global Response, Analyst Access, SDK, API, Research Reports, or the current offering(s) as listed on the FireEye Webpage.

“Order(s)” means the Customer’s purchase order(s), statement(s) of work, the FireEye order form(s), or any other agreement that contains the term, fee amount, and specific terms of the purchase duly executed between the two parties.

“Proprietary Information” is defined in Section 11.

“Service Level Agreement” means the written agreement pursuant to which FireEye provides the Subscription and the Access Methods

“Software Development Kit” or “SDK” shall mean the latest version of the iSIGHT Software Development Kit and any associated documentation, tools, libraries, technical notes, software code, or other materials.

“Term” means the period equal to Customer’s current Subscription period for the FireEye iSIGHT Products, during which the Customer remains in good standing with FireEye.

iSIGHT App for Splunk” means the application which a Customer may install on Splunk that allows the Customer to access and view the Content when licensed to do so. The iSIGHT App for Splunk includes the latest version of the iSIGHT App for Splunk software, its documentation and any html embedded code.

1. Grant of Limited License. During the Term, FireEye grants to Customer in strict accordance with the terms of this EULA, a limited, worldwide, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable royalty-free right and license to:
   
   1. use FIIP, the Subscription, and any Content provided by FireEye for internal use only. The Subscription can be used by the Customer’s End Users who have a valid "need to know" within Customer’s organization, typically defined as a person or group that has a direct role in securing information system or networks. Customer can provide access to the Content under this license to third-party information security providers for the sole and exclusive purpose of aiding in the Customer’s information security activities during the term of the Subscription. FireEye agrees to provide support for the Subscription in accordance with the latest version of the iSIGHT Service Level Agreement.
   2. use the Application Programming Interface (“API”) to search, display, and otherwise access the Content. The API can be used to develop, display, or integrate applications, scripts, tools or workflows that interoperate with FireEye iSIGHT Products for the Customer’s internal use. FireEye agrees to provide support for the latest version of the API in accordance with the latest version of the iSIGHT Service Level Agreement.
   3. download, install and use the Software Development Kit (“SDK”) to design, develop and test an Application(s), for the Customer’s internal use only, for the purpose of customized access to the Content. The Customer may modify the source code versions of sample files, if any, included with the SDK for the purpose of creating Customer’s Application(s) and make a reasonable number of copies of the SDK as necessary to develop Customer’s Application(s), provided that Customer reproduces complete copies of the SDK, including without limitation all "read me" files, copyright notices, and other legal notices and terms. FireEye agrees to provide support for the iSIGHT SDK in accordance with the latest version of the Service Level Agreement. Support services do not include FireEye performing custom programming services, on-site support, including installation of hardware or any software or training.
   4. use the Browser Plugin to search, display and otherwise access the Content for the Customer’s internal use only. This EULA allows Customer to install and use one copy of the Browser Plugin on a single computer per license. FireEye agrees to provide support for the latest version of the Browser Plugin in accordance the Service Level Agreement.
   5. use the iSIGHT App for Splunk to search, display and otherwise access the Content for the Customer’s internal use only. This EULA allows Customer to install and use one copy of the iSIGHT App for Splunk on a single computer per license. FireEye agrees to provide support for the latest version of the App for Splunk in accordance the Service Level Agreement.
2. Access Keys. Use of the Access Methods and access to the Subscription and the Content by Customer’s End Users is provided through access keys or login credentials. Access keys in association with the Access Methods and Subscription shall be kept in confidence by Customer and Customer’s End Users. Access keys will be issued to individual End Users by FireEye in accordance with each particular Access Method’s parameters and will not be shared between End Users. Group accounts will not be established. Any unauthorized disclosure or dissemination of access keys by Customer or Customer’s End Users shall be deemed a material breach of this EULA and shall be a basis for potential termination of the Subscription and/or Access Methods if not rectified upon notification. Customer shall inform FireEye of any data breach concerning login credentials in a timely manner. FireEye reserves the right to change, suspend, remove, or disable Customer’s access keys to the Access Methods, Subscription, and Content upon notice if a material breach is suspected and not rectified upon notification.
3. Latest Version. The license granted to Customer under this EULA is for the current version of the Access Methods. FireEye may release future versions of the Access Methods as determined in the sole discretion of FireEye. Nothing in this EULA is a commitment to Customer of compatibility between the existing Access Methods and any future versions of the Access Methods. FireEye reserves the right to discontinue offering particular Access Methods (or any updates thereto) or to modify the Access Methods at any time in its sole discretion.
4. Multiple Copies. Customer may receive software for an Access Method in more than one medium and/or in multiple copies. The Customer’s license rights are in accordance with the Order regardless of the number of copies received.
5. Additional Licenses. Customer may purchase additional licenses for the Browser Plugin for its authorized End Users through the Firefox add-on Store (https://addons.mozilla.org/en-US/firefox/addon/isight-threatscape-extension). Customer may purchase additional licenses for the iSIGHT App for Splunk for its authorized End Users through Splunk (https://apps.splunk.com/apps/#/type/app/page/1). Additional licenses for the Browser Plugin and iSIGHT App for Splunk may be purchased and will be for the current Term as provided in the Order.
6. Intellectual Property Rights. FireEye retains all ownership rights (including copyrights, other intellectual property rights, any adaptations, modifications, translations, Derivative Works or copies) to the Subscription, Access Methods, and Content, in any form, revision or version (the “Intellectual Property”), and Customer obtains only such rights as are explicitly granted in this EULA. Nothing in this EULA shall be construed to convey any title or ownership rights in any Intellectual Property to Customer. No right in or license to use any of FireEye trademarks, logos, trade name or service marks is granted to Customer. Customer agrees not to remove any copyright notice or other similar legend from any Content within the Subscription. All rights not expressly granted in this EULA to Customer are reserved by FireEye.
7. Customer Application. The Customer may allow Customer’s employees, consultants or other third-party developers (“Developer”) to access and use the SDK/API on Customer’s behalf to design an Application, provided that Customer shall be responsible for ensuring that Customer’s Developer complies with this EULA. The Customer may not rent, lease, sell, transfer, sublicense or time-share the Customer’s Application to any third-party without the express consent of FireEye. Customer shall retain all right, title or interest in the Application and as such, Customer agrees to indemnify and hold harmless FireEye for any claims of infringement made against FireEye in accordance with Section 17 below. The Customer’s Application(s) must perform in accordance with the terms of this EULA and must ensure the security and confidentiality of Proprietary Information. Customer assumes full responsibility for any breach of security caused by Customer’s Application(s) in connection with the Content, API, SDK, and specifically to any unauthorized disclosure of any FireEye Intellectual Property or Proprietary Information.
8. Content Modifications. Customer may access the Content from the FIIP Portal, via email, SMS, HTML, API, any other Access Methods as officially distributed by FireEye or an FireEye sanctioned third-party integration. FireEye reserves the right to modify, amend, augment, reduce or alter the Content’s format, or Access Methods, or mode of retrieval of the Content, that in the sole judgment of FireEye is in its customer’s best interests. Customer will be entitled to retrieve the Content with any updates, modifications, additions or changes in the Content. These changes may require Customer to upgrade its systems, hardware or software and FireEye will not be responsible for the costs of any such changes.
9. Data Integrity. FireEye shall use every reasonable effort to ensure the accuracy and correctness of the Content. If Customer notifies FireEye that the Content is in some way defective, or if FireEye becomes aware that the Content is defective, FireEye will evaluate the deficiency and, as necessary, use commercially reasonable efforts to correct such defect and repost the Content. The sole obligation of FireEye to Customer or any third-party is to repost the Content if a deficiency is found.
10. Proprietary Information. From time to time, Customer End Users may discuss with FireEye issues and developments related to the Subscription, the Access Methods, and the Content. Customer and End Users may also receive or be exposed to FireEye’s confidential, proprietary information (“Proprietary Information”), which includes all finished and raw cyber threat intelligence products. Customer agrees to maintain and protect the confidentiality of the Proprietary Information and agrees not to disclose the Proprietary Information or use it for any purpose not expressly authorized by this EULA. Customer agrees to adopt commercially reasonable safeguards to protect the confidentiality of the Proprietary Information. The restrictions on disclosure set forth in this section will not apply when, and to the extent that Proprietary Information (a) is publicly known at the time of a proposed disclosure without a breach of this EULA, (b) is provided on a non-confidential basis by a third-party that is not itself under any confidentiality obligation with respect to the Proprietary Information, (c) is previously known by Customer free of any obligation to keep it confidential, or (d) is independently developed by Customer without use of or reference to the Proprietary Information. Customer will promptly notify FireEye if it becomes aware of any apparent violation of the confidentiality requirements set forth in this section.
11. Prohibited Usage. Customer and End Users must adhere to any Intellectual Property rights asserted in any materials contained in the Content. The following conduct and usage restrictions apply during Customer’s download, installation, and use of the Content and/or Access Methods. Customer and its authorized End Users may not:
    1. Rent, lease, lend, sell, redistribute or sublicense any part of the Subscription or Access Methods to any other party;
    2. Share the Subscription, Access Methods, Content or Proprietary Information with any third-parties, except as expressly authorized in advanced by this EULA or by FireEye in writing;
    3. Use the Subscription or Access Methods in the operation of a service or in any way to provide services to any third-party not covered in the license or specified between the parties in writing;
    4. Create Derivative Works for external distribution or use based upon the Content, unless agreed to in writing by FireEye;
    5. Create apps, extensions, or other products and services that use our Content except for licensed use;
    6. Display, post, frame, or scrape the Content for use on another web site, app, blog, product or service, except as otherwise expressly permitted by this EULA;
    7. Use the Access Methods for any other purpose than to access the FireEye iSIGHT Products and the Content without prior written consent from FireEye;
    8. Use the Access Methods for any illegal or unauthorized purpose to promote or provide instructional information about illegal activities or to promote stalking, physical harm or injury against any group or individual, or any use that violates the rights of privacy and publicity of others;
    9. Create, place, or disseminate any materials or other items that are inappropriate, defamatory, obscene, pornographic, harassing, threatening, abusive, hateful or otherwise offensive, or is unlawful (including any content that infringes any patent, trademark, service mark, copyright, trade secret or other proprietary right of any third-party without appropriate permissions);
    10. Transmit any viruses, worms, defects, Trojan horses, time-bombs, malware, spyware, or any other computer code of a destructive or interruptive nature in connection with use of the Access Methods;
    11. Use the Access Methods in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, unsolicited mass distribution of email ("spam"), hacking, surveillance, interception, descrambling equipment, stolen products and items used for theft;
    12. Create any Application that exposes or provides functionality of the Access Methods to a non-licensed end user;
    13. Charge any fees or require payment for use of or access to Access Methods or the Content, even if such use or access is offered as part of a bundle of services being offered by Customer unless expressly agreed to in writing between the parties;
    14. Interfere, restrict or inhibit any other Customer from using the Access Methods or Content or disrupt any services offered by FireEye through any medium;
    15. Attempt to exceed or exceed the usage limits established by FireEye for the Customer (http://www.isightpartners.com/doc/sdk-bp-docs/#/rate_limiting).
12. Restrictions. FireEye expressly reserves the right to limit the number and/or frequency of requests for Content made through the Access Methods in its sole discretion in line with technical design and performance standards as documented in the publicly available developers guide. iSIGHT may limit the number of network calls that any Application may make via the Access Methods, the maximum file size, or the maximum amount of iSIGHT material that may be accessed. FireEye may change such usage limitations at any time and without notice. In addition to any other rights under this EULA, FireEye may utilize technical measures to prevent over usage or to stop usage of any Access Methods or any Application after any usage limitations are exceeded. API/SDK documentation and developers guide can be found at http://www.isightpartners.com/doc/sdk-bp-docs/#/ and details the current rates and capabilities of the API.
13. Limited Warranty. FireEye DOES NOT WARRANT THAT USE OF THE SUBSCRIPTION, CONTENT AND/OR ANY ACCESS METHOD WILL BE UNINTERRUPTED OR THAT THE IMPLEMENTATION OF THE SUBSCRIPTION, CONTENT AND/OR ANY ACCESS METHOD WILL BE ERROR-FREE OR SECURE, AND FireEye HEREBY DISCLAIMS ANY AND ALL LIABILITY THEREOF. FireEye WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SUBSCRIPTION, CONTENT, AND ACCESS METHODS IN ACCORDANCE WITH THE ORDER(S). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION, CONTENT, AND ACCESS METHODS ARE PROVIDED “AS IS” AND FireEye ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE SUBSCRIPTION, CONTENT, OR ACCESS METHODS. THE SUBSCRIPTION, CONTENT AND ACCESS METHODS ARE SUBJECT TO CHANGE WITHOUT NOTICE. USE OF THE CONTENT AND/OR ACCESS METHODS IS AT CUSTOMER’S SOLE RISK. FireEye DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SUBSCRIPTION, CONTENT AND/OR ANY ACCESS METHOD, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
14. Confidential Information, Access Data, and Aggregate Data.
    1. Customer may provide information to FireEye that Customer considers confidential. Customer agrees to clearly mark and designate any such information as “CONFIDENTIAL” (properly designated information shall be referred to as “Confidential Information”). FireEye agrees to maintain and protect the confidentiality of the Confidential Information and agrees not to disclose or use the Confidential Information for any purpose other than for providing services to Customer related to the Subscription, Content, and/or Access Methods. The restrictions on disclosure set forth in this section will not apply when, and to the extent that Confidential Information (a) is publicly known at the time of a proposed disclosure without a breach of this EULA, (b) is provided on a non-confidential basis by a third-party that is not itself under any confidentiality obligation with respect to the information, (c) is previously known by FireEye free of any obligation to keep it confidential, or (d) is independently developed by FireEye without use of or reference to the Confidential Information. FireEye will promptly notify Customer if it becomes aware of any apparent violation of the confidentiality requirements set forth in this section. FireEye agrees to return or destroy Confidential Information upon Customer’s written request. Unless specifically instructed by Customer to destroy or return the Confidential Information, or to retain the Confidential Information for a longer period of time, FireEye will retain Confidential Information in its possession for three (3) years after the termination of Customer’s business relationship with FireEye, at which time the Confidential Information will be destroyed.
    2. Customer recognizes and agrees that certain information and data that will be provided by Customer to iSIGHT pursuant to this EULA is not owned by Customer and is not Confidential Information subject to designation as set forth in Section 15(a). Malware submitted by Customer to FireEye for analysis under iSIGHT Global Response, and other information submitted by Customer to FireEye that is not unique to and/or developed by Customer (collectively “Submissions”) shall not be considered Confidential Information. FireEye may use the Submissions, aggregate the Submissions with submissions from other FireEye customers as well as original research and analysis, and share that aggregated intelligence with Customer and with other FireEye customers to enhance the services FireEye provides to its customers. FireEye will make every reasonable effort to ensure that the source of the Submission as well as victim identification is not disclosed.
15. Compliance. Customer shall enforce the provisions of this EULA and shall adequately monitor and audit compliance of its End Users.
16. Indemnification. To the fullest extent permitted by law, Customer shall indemnify, defend, and hold harmless FireEye, its service providers, licensors and customers, and their respective officers, directors, employees, agents, successors and assigns, and any individuals (collectively, the “Indemnified Parties”), from any and all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties), arising from or in connection with allegations of: (a) Customer’s illegal or negligent use of the Subscription, Content, and/or Access Methods which may result in damage to third parties, including but not limited to redistribution of the Content and/or Derivative Works and their use by End Users; and/or (b) Customer’s infringement of a patent, copyright, or trade secret through a Derivative Work and/or Application (the “Indemnified Matters”). Customer shall not settle any Indemnified Matters without prior written consent from FireEye if such settlement would be adverse to FireEye or its interest. The Indemnified Parties shall have the right to choose their own attorneys to represent them in connection with any Indemnified Matters. Upon the Customer’s receipt of a demand letter relating to any Indemnified Matters, Customer shall provide a copy of the letter to FireEye and shall pay to the Indemnified Parties’ attorneys a retainer. Customer shall pay the Indemnified Parties’ attorneys’ invoices, including fees and expenses, on a monthly basis or as otherwise agreed by the Indemnified Parties’ attorneys. Customer’s obligations under this Section 17 shall apply regardless of any negligence on the part of the Indemnified Parties.
17. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, EXCEPT FOR BREACHES OF SECTION 7 – INTELLECTUAL PROPERTY RIGHTS AND/OR SECTION 11 – PROPRIETARY INFORMATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNT GREATER THAN THE TOTAL AMOUNT PAID BY CUSTOMER TO FireEye FOR ALL PRODUCTS AND SERVICES FOR ONE YEAR OF THE TERM, WHETHER BASED IN CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOSS OF THE INCOME, PROFIT OR SAVINGS OF THE OTHER PARTY OR ITS AFFILIATES; (II) FOR ANY CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (III) FOR ANY ERRORS CONTAINED IN THE SUBSCRIPTION, CONTENT, OR ACCESS METHODS; OR (IV) FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF THE SUBSCRIPTION, CONTENT, OR ACCESS METHODS. THIS LIMITATION OF EACH PARTY’S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
18. Infringement. FireEye shall indemnify and hold harmless Customer, its subsidiaries and affiliates, their respective directors, officers, employees, customers, agents, attorneys, affiliates, successors, and assigns from any and all claims, losses, liabilities, damages, suits, actions, government procedures, taxes, penalties or interest, associated auditing and legal expenses and other costs incurred by Customer (including reasonable attorneys’ fees and costs of suit) arising from any action brought against Customer that is based on a claim that the Subscription, Content, or Access Methods, when used within the scope of this EULA, infringes a patent, copyright, or trade secret, unless such alleged infringement is caused by modification to the Subscription, Content, or Access Methods by any party other than FireEye and the alleged infringement is caused by such modification. In such event, Customer shall give FireEye prompt written notice of any claim and FireEye shall have sole control of the defense, settlement or compromise. Customer may elect to participate in any such action with an attorney of its own choice at its own expense. Should the Subscription, Content, or any Access Method become, or in the opinion of FireEye, is likely to become, the subject of a claim of infringement, FireEye may at its option (a) procure for Customer the right to continue using the Subscription, Content, or Access Method, (b) replace or modify the Subscription, Content, or Access Method to make it non-infringing, or (c) terminate the EULA. Upon termination of the EULA under this Section 19, FireEye will refund to Customer, as FireEye’s sole liability and Customer’s sole remedy, the fixed fee paid by Customer according to the Order(s) less an amount equal to one twelfth of such fee for each month that has elapsed since the Effective Date.
19. Payment. Customer agrees to pay the fees and any other charges incurred in connection with the Subscription and Access Methods (including any applicable taxes) at the rates in effect when the charges were incurred. If Customer’s use of the Subscription and Access Methods includes access to premium content or services, Customer access to such areas may be subject to additional fees, terms and conditions. Fees will be billed at the beginning of Customer’s Subscription and/or use of the Access Methods and payment is due net thirty (30) days from the applicable start date. FireEye may change fees for the next Term by providing notice to Customer at least thirty (30) days prior to the effective date of the change in fees. Customer is responsible for any fees or charges incurred to access the Subscription and Access Methods provided through a third-party provider. Customer shall not disclose the negotiated pricing or terms of this, or any Order, to any third-party. Past due balances on the amounts due to FireEye pursuant to this EULA will be subject to an interest charge of one and one-half percent (1-1/2%) per month or the maximum interest rate permitted by applicable law (whichever is less), computed from the due date of such payment and FireEye retains the right to suspend or terminate the Subscription and/or Access Method upon notice to cure due to any delinquency of payment to Customer and Customer does not correct the delinquency within ten (10) days then FireEye may suspend or terminate the Subscription and/or Access Method.
20. Termination. FireEye may terminate this EULA immediately in the event of a violation of any of the following sections: 3 – Access Keys; 7 – Intellectual Property Rights; 11 – Proprietary Information; or 12 – Prohibited Usage. This EULA may be terminated upon thirty (30) days’ prior written notice, provided the basis for such termination is a material failure by the other party to perform its obligations hereunder and such failure is not corrected within the thirty (30) days’ notice period. All subscription fees are non-refundable and therefore in the event of Termination no refund will be due, except as provided in Section 19. Upon termination of this EULA for any reason, Customer agrees that Customer and Customer’s End Users will not exercise the rights granted under this EULA from and after termination of this EULA.
21. Survival. The rights and obligations contained in the following sections will survive any termination or expiration of this EULA: 3 – Access Keys; 7 – Intellectual Property Rights; 11 – Proprietary Information; 12 – Prohibited Usage; 14 – Limited Warranty; 16 – Indemnification; 17 – Limitation of Liability; 18 – Infringement; 21 – Survival; and, 28 – Governing Law.
22. Notices. Any notices, requests and other communications required or permitted by this EULA shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing by notice as provided by this section.
23. Publicity. Neither party will make any public statement, including but not limited to any press releases, regarding the terms of this EULA, or any aspect thereof or the relationship of the parties without the other party’s prior written approval which may be withheld in such other party’s sole discretion; provided that to the extent such disclosure is required by law, rule, regulation, or governmental or court order, the party requesting disclosure will furnish the other party with sufficient time to address such request with any such governmental agency and seek confidential treatment and such disclosure will not be a breach of this EULA. Nothing herein will require either party to approve the issuance of a public statement or obligate a party to participate in any public statement.
24. Export. Customer agrees not to export, directly or indirectly, any U.S. source technical data acquired from FireEye or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
25. Assignment. FireEye may assign its rights and delegate its duties and obligations hereunder upon written notice to Customer. Customer may not assign any of Customer’s rights nor delegate any of Customer’s duties or obligations hereunder without the prior written consent of FireEye.
26. Compliance with Laws. Without limiting any other provision of this EULA, each party shall be solely responsible for its own compliance with all applicable laws and regulations (whether federal, state, or local), but in no event shall a party be responsible for such compliance by the other party.
27. Governing Law. This EULA shall be governed in all respects by the laws of the United States of America and by the laws of the State of Texas, without respect to its conflicts of laws principles. Any action or proceeding related to this EULA shall be brought only in, and the parties hereby expressly consent to the personal jurisdiction of, the federal and state courts located in Dallas County, Texas.
28. Severability. In case any one or more of the provisions contained in this EULA shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or un-enforceability shall not affect the other provisions of this EULA, and this EULA shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If any one or more of the provisions contained in this EULA shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law, as it shall then appear.
29. Force Majeure. Neither party will not be liable for any loss, damage or delay resulting from any event beyond the party’s reasonable control (“Force Majeure”) and delivery and performance dates will be extended to the extent of any delays resulting from a Force Majeure. A party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this EULA.
30. Waiver. Any act or omission by a party with respect to a breach of any provision of this EULA by the other party shall not operate or be construed as a waiver of any other or subsequent or preceding breach by the other party. No waiver by a party of any right under this EULA shall be construed as a waiver of any other right.
31. U.S. Government. If Customer is part of the U.S. Government, or any contractor therefore, Customer will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227.7202 3 (for the Department of Defense). The Access Methods, Subscription and its Content are a “Commercial Item” as defined at 48 C.F.R. Section 2.101 and is licensed to U.S. Government End Users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the commercial terms and conditions herein.
32. Authorized Resellers. FireEye authorized resellers do not have the right to make modifications to this EULA or to make any additional representations, commitments, or warranties binding on iSIGHT.
33. Entire Agreement. This EULA constitutes the entire agreement between the parties relating to the use of the Subscription, Content, and Access Methods, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This EULA may only be amended by mutual agreement of authorized representatives of the parties in writing. No modification of or amendment to this EULA, nor any waiver of any rights under this EULA, will be effective unless in writing and signed by the authorized representative of the party to be charged. To the extent this EULA contradicts any later agreement of the parties with respect to the matters addressed herein this EULA shall control.