Legal Terms and Conditions for FireEye Offerings

Last update October 8, 2021


GENERAL TERMS APPLICABLE TO ALL OFFERINGS

Schedules

FireEye Products

 

These terms and conditions (the “Agreement”) govern the purchase and use of FireEye Offerings by the Customer listed on the Order or Statement of Work that incorporates this Agreement.

Structure and Order of Precedence. The General Terms Applicable to all FireEye Offerings (“General Terms”) provide the terms under which the Customer may use FireEye’s various Offerings. The specific rights for the Customer to use and receive Products, Support Services or Subscriptions or otherwise engage with specific FireEye Offerings are set forth in the applicable ”Schedule." In the event of conflict between any of the General Terms and a Schedule, the Schedule will govern. Purchases of Mandiant solutions, subscriptions, support, and services (collectively, “Mandiant Offerings”) will be governed by the terms for such Mandiant Offerings found at www.mandiant.com/company/legal, and FireEye offers such Mandiant Offerings as an authorized reseller or sales agent of Mandiant, Inc.

If you have arrived at this page via a link provided during the process of installing or logging into your FireEye Offering, you acknowledge that by proceeding with the installation or use of that Offering, you agree to be bound by this Agreement as it applies to Products. If this Agreement is considered an offer, acceptance Is expressly limited to the terms of this Agreement. If you do not unconditionally agree to the foregoing, discontinue the installation or login process. If you proceed with installation or logging in, you are representing and warranting that you are authorized to bind the Customer.


General Terms Applicable to all FireEye Offerings

1.        DEFINITIONS.

1.1     
“Content Feed” means all intelligence and content feeds associated with Products and Subscriptions, which may consist of inbound and outbound feeds that are part of FireEye’s Dynamic Threat Intelligence (DTI) Cloud, downloads of Indicators for use with Products and Subscriptions, and/or intelligence provided as part of Advanced Threat Intelligence (ATI).

1.2      “Deployment and Integration Services” or “D&I Services” means professional services provided by FireEye for the purpose of assisting the Customer in deploying, configuring, and integrating the FireEye Offerings.

1.3      “Documentation” means the user manuals generally provided in writing by FireEye to end users of the Products and Subscriptions in electronic format, as amended from time to time by FireEye.

1.4      “FireEye” means (i) FireEye Security Holdings US LLC, a Delaware limited liability company with its principal place of business at 601 McCarthy Blvd., Milpitas, CA, 95035 with respect to Offerings that are shipped to, deployed or rendered inside of North America (including the United States, Mexico, Canada and the Caribbean), Central America and South America (collectively, the “Americas”); or (ii) with respect to all Offerings that are shipped to, deployed or rendered outside of the Americas, FireEye Ireland Limited, a company incorporated under the laws of Ireland with principal place of business at 2 Park Place, City Gate Park, Mahon, Cork, Ireland.

1.5      "FireEye Materials" means all FireEye proprietary materials, intellectual property related to Products, Services, or Subscriptions, (such as all rights in any software incorporated into a Product or Subscription, copyrights, and patent, trade secret and trademark rights related to Products, and screens associated with Products or Subscriptions), Documentation, any hardware and/or software used by FireEye in performing Services or providing Subscriptions, Content Feeds, FireEye’s processes and methods (including any forensic investigation processes and methods), Indicators of Compromise, materials distributed by FireEye during Training, and any FireEye templates and/or forms, including report and presentation templates and forms. FireEye Materials does not include Third Party Materials.

1.6       "Indicators of Compromise" or "Indicators" means specifications of anomalies, configurations, or other conditions that FireEye can identify within an information technology infrastructure.

1.7       “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

1.8       “Offerings” means, collectively, Products, Subscriptions, Training, D&I Services and Support Services.

1.9       “Order” means a written purchase order or similar ordering document, signed or submitted to FireEye by Customer and approved by FireEye, under which Customer agrees to purchase Offerings.

1.10     “Products” means the FireEye software and hardware products (which may include embedded software or firmware components), provided as an on-premises deployment model, as described in the Product Schedule to this Agreement.

1.11     "Service" or "Services" means the D&I Services, Support Services and Training.

1.12     "Statement of Work" or “SOW” means a mutually agreed-upon document between FireEye and Customer, describing D&I Services, rates and timelines (if applicable) for those Services, and incorporating this Agreement.

1.13     “Subscription” means a service provided by FireEye for a fixed term, under which FireEye provides access to certain features, functionality, and/or information, as described in the applicable Schedule for each Subscription attached to this Agreement.

1.14     “Support Services” means the Product and Subscription support and maintenance services provided by FireEye with respect to each Product and Subscription, as described in the applicable Schedule for each Product or Subscription.

1.15     “Third Party Materials” means software or other components that are licensed to FireEye by third parties for use in FireEye’s Offerings.

1.16     “Training” means training in the use of Products or Subscriptions, or on security-related topics in general, provided by FireEye.

2.        ORDERS AND STATEMENTS OF WORK.

2.1.      Orders.  Customer may purchase Offerings by submitting an Order.  If accepted by FireEye, the “Order Effective Date” will be the date of the Order.  All Orders will be governed by this Agreement. For clarity, FireEye will not be obligated to ship any Product, or provide any Services, Training or Subscriptions until Customer has issued a valid Order for those Offerings. Orders for Offerings will be invoiced by the relevant FireEye entity as described in Section 1.4 above, regardless of the entity that issued the quote or the entity to whom an Order is addressed. 

2.2.      Statements of Work. Each Statement of Work will incorporate and be governed by this Agreement. The “Statement of Work Effective Date” will be the date both Customer and FireEye have agreed to the Statement of Work, either by executing the Statement of Work or by issuing and accepting an Order for the D&I Services described on the Statement of Work. For clarity, FireEye will not be obligated to perform any D&I Services until a SOW describing those D&I Services has been agreed by both parties or an Order listing those D&I Services has been accepted by FireEye.

3.        FEES AND PAYMENT.

3.1      Fees and Expenses. Customer agrees to purchase the Offerings for the prices set forth in each Order and/or Statement of Work, as applicable (“Fees”).  If Customer purchases through a FireEye partner (such as an authorized reseller or distributor, collectively, “FireEye Partners”), all fees and other procurement and delivery terms shall be agreed between Customer and the applicable partner. Customer shall reimburse FireEye for all expenses incurred so long as such expenses are directly attributable to the Services or Subscriptions performed for or provided to Customer.  FireEye will provide appropriate vouching documentation for all expenses exceeding $25. 

3.2      Payment. If Customer purchases directly from FireEye, Customer will make full payment in the currency specified in FireEye’s invoice, without set-off and in immediately available funds, within thirty (30) days of the date of each invoice.  All Fees are non-cancelable and non-refundable.  All Fees described on an Order and in a Statement of Work will be fully invoiced in advance, unless otherwise agreed by FireEye.  Any partial shipments delivered by FireEye may be invoiced or delivered individually. If any payment is more than fifteen (15) days late, FireEye may, without limiting any remedies available to FireEye, terminate the applicable Order or Statement of Work or suspend performance until payment is made current, and all payments then due will accelerate and become immediately due and payable. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by applicable law. 

3.3      Taxes. All Fees are exclusive of all present and future sales, use, excise, value added, goods and services, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the Offerings which shall be invoiced to and paid by the Customer.  If Customer is required by law to make any deduction or withholding on any payments due to FireEye, Customer will notify FireEye and will pay FireEye any additional amounts necessary to ensure that the net amount FireEye receives, after any deduction or withholding, equals the amount FireEye would have received if no deduction or withholding had been required.  Additionally, Customer will provide to FireEye evidence, to the reasonable satisfaction of FireEye, showing that the withheld or deducted amounts have been paid to the relevant governmental authority.  For purposes of calculating sales and similar taxes, FireEye will use the address set forth on the Order or Statement of Work, as applicable, as the jurisdiction to which Offerings and shipments are delivered unless Customer has otherwise notified FireEye in writing as of the Order Effective Date or Statement of Work Effective Date, as applicable. Customer will provide tax exemption certificates or direct-pay letters to FireEye on or before the Order Effective Date or Statement of Work Effective Date, as applicable.

3.4      Increases. FireEye reserves the right to increase Fees at any time, although increases in Fees for Subscriptions or Support Services will not go into effect until the next Renewal Subscription Term or Renewal Support Term, as applicable.

4.        TITLE AND RISK OF LOSS; INSPECTION.  All hardware, including hardware components of Products and any hardware provided for use with Subscriptions, is shipped FOB Origin from FireEye’s designated manufacturing facility or point of origin, and title to such hardware and the risk of loss of or damage to the hardware shall pass to Customer at time of FireEye’s delivery of such hardware to the carrier.  FireEye is authorized to designate a carrier pursuant to FireEye’s standard shipping practices unless otherwise specified in writing by Customer.  Customer must provide written notice to FireEye within five (5) days of delivery of the Products of any non-conformity with the Order, e.g., delivery of the wrong Product or incorrect quantities.

5.        TERMS APPLICABLE TO SPECIFIC OFFERINGS. Products, Support and Subscriptions are governed by these General Terms and the applicable Schedule for each Offering. Evaluations, Training, and D&I Services are governed by these General Terms, including the applicable sections below.

5.1.     Evaluations, Free Offerings, Preview Features, Beta Features.  If Customer receives a Product or Subscription for evaluation purposes (“Evaluation Offerings”) then Customer may use the Evaluation Offerings for its own internal evaluation purposes for a period of up to thirty (30) days from the date of receipt of the Evaluation Offerings (the “Evaluation Period”). Customer and FireEye may, upon mutual written agreement (including via email), extend the Evaluation Period. If the Evaluation Offering includes hardware components, Customer will return the hardware within ten (10) days of the end of the Evaluation Period, and if Customer does not return the hardware within this period, Customer shall be invoiced for the then-current list price for the applicable Evaluation Offering. Customer acknowledges that title to hardware components of Evaluation Offerings remains with FireEye at all times, and that Evaluation Offerings may be used and/or refurbished units. Customer must delete all software and other components (including Documentation) related to the Evaluation Offering at the end of the Evaluation Period, and confirm those deletions in writing to FireEye, or Customer will be invoiced for the then-current list price for the Evaluation Offering.  If the Evaluation Offering is a Subscription, Customer understands that FireEye may disable access to the Subscription automatically at the end of the Evaluation Period, without notice to Customer. Free offerings, preview features and beta features or products may be provided with respect to an existing Offering or on a stand-alone basis, for a limited time, at no additional charge but then licensed for an additional fee at a later date. All such free, preview and beta features or products are considered “Unpaid Offerings,”, and FireEye may discontinue providing such Unpaid Offerings at any time. EVALUATION OFFERINGS AND UNPAID OFFERINGS ARE PROVIDED “AS IS”, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FIREEYE DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION OFFERINGS AND FREE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.

5.2.   Training.  Training delivery dates and location for such Training will be mutually agreed upon by the parties. If an Order does not specify such dates and/or locations, then the parties will mutually agree upon the dates and locations for Training. Customer must request rescheduling of private Training no less than two (2) weeks in advance of the scheduled start date, and any such rescheduled training must be held within one (1) year of the date of the Order on which the original Training was included. FireEye will use reasonable efforts to reschedule the Training, subject to availability, and Customer will pay any expenses associated with the rescheduling, including any expenses associated with cancelling or changing travel plans.  If Customer cancels attendance at a public Training class, Customer must notify FireEye no later than two (2) weeks before the date of the public Training class. If Customer timely notifies FireEye of the cancellation, FireEye will issue Customer a credit for the amount paid for that public Training class, which Customer may apply toward another public Training class of the same duration held within one (1) year of the date of the Order on which the cancelled Training class was included. Customer may substitute a named attendee at a public Training class, but Customer will notify FireEye in advance of any such substitution. FireEye reserves the right to refuse admittance to public Training classes to any person, for any reason, and if FireEye refuses admittance, FireEye will refund the amount paid for that person’s attendance at the public Training class. FireEye does not refund or credit Fees paid for attendees who do not attend Training or who leave before Training concludes. FireEye reserves the right to cancel public Training classes for any reason. Training may not be recorded. All Training must be scheduled and conducted within one (1) year of the date of the applicable Order for that Training.

6.        INTELLECTUAL PROPERTY

6.1.     Ownership of FireEye Materials; Restrictions. All Intellectual Property Rights in FireEye Materials, Products, Documentation, and Subscriptions belong exclusively to FireEye and its licensors. Customer will not (and will not allow any third party to): (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any FireEye Materials (except to the limited extent that applicable law prohibits reverse engineering restrictions); (ii) sell, resell, distribute, sublicense or otherwise transfer, the FireEye Materials, or make the functionality of the FireEye Materials available to any other party through any means (unless otherwise FireEye has provided prior written consent), (iii) without the express prior written consent of FireEye, conduct any benchmarking or comparative study or analysis involving the FireEye Materials (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Products or Subscriptions to interoperate with Customer’s internal computer systems; (iv) disclose or publish to any third party any Benchmarking or any other information related thereto; (v) use the FireEye Materials or any Benchmarking in connection with the development of products, services or subscriptions that compete with the FireEye Materials; or (vi) reproduce, alter, modify or create derivatives of the FireEye Materials. Between Customer and FireEye, FireEye shall retain all rights and title in and to any Indicators of Compromise FireEye developed by or for FireEye in the course of providing Subscriptions or performing Services. FireEye may audit Customer’s use of Offerings to ensure compliance with the terms of this Agreement

6.2.     Third Party Materials.  Customer acknowledges that Products and Subscriptions may include Third Party Materials.  FireEye represents that these Third Party Materials will not diminish the license rights provided herein or limit Customer’s ability to use the Products and Subscriptions in accordance with the applicable Documentation, and neither the inclusion of Third Party Materials in any Product or Subscription or use of Third Party Materials in performance of Services will create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license.

6.3.     Aggregated Data. Customer grants FireEye a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use data derived from Customer's use of the Offerings (the “Aggregated Data”) for FireEye’s business purposes, including the provision of Offerings to FireEye’s other customers; provided the Aggregated Data is combined with similar data from other customers and not identifiable to Customer. The Aggregated Data will not be considered Customer Confidential Information.

7.        WARRANTIES.

7.1.     Product Warranty.  Except as otherwise set forth in a Schedule, FireEye warrants to Customer that during the one (1) year period following the shipment of the Products, the Products will perform substantially in accordance with the applicable Documentation. The warranty stated in this Section 7.1 shall not apply if the Product has: (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by FireEye; (ii) been repaired or altered by persons other than FireEye; (iii) not been installed, operated, repaired and maintained in accordance with the Documentation; or (iv) been used with any third party software or hardware which has not been previously approved in writing by FireEye.  If during the one-year Product warranty period: (a) FireEye is notified promptly in writing upon discovery of any error in a Product, including a detailed description of such alleged error; (b) if applicable, such Product is returned, transportation charges prepaid, to FireEye’s designated manufacturing facility in accordance with FireEye’s then-current return procedures, as set forth by FireEye from time to time; and (c) FireEye’s inspections and tests determine that the Product contains errors and has not been subjected to any of the conditions set forth in 7.1(i)-(iv) above, then, as Customer’s sole remedy and FireEye’s sole obligation under the foregoing warranty, FireEye shall, at FireEye’s option, repair (or correct the error, as applicable) or replace without charge such Product.  Any Product that has either been repaired or replaced under this warranty shall have warranty coverage for the remaining warranty period.  Replacement parts used in the repair of a Product may be new or equivalent to new.

7.2.     Services Warranty.  FireEye warrants to Customer that Services will be performed in a professional manner in accordance with industry standards for like services.  If Customer believes the warranty stated in this Section has been breached, Customer must notify FireEye of the breach no later than thirty (30) days following the date the Services were performed, and FireEye will promptly correct or re-perform the Services, at FireEye’s expense.

7.3.     Subscription Warranty.  FireEye warrants to Customer the Subscriptions will be provided in a professional manner in accordance with industry standards for similar subscriptions.  If Customer believes the warranty stated in this Section has been breached, Customer must notify FireEye of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and FireEye will promptly correct the non-conformity, at FireEye’s expense.

7.4.     Remedies Exclusive.  Except for any Service Level Credits described in applicable Schedules, the remedies stated in Sections 7.1-7.3 above are the sole remedies, and FireEye’s sole obligation, with respect to Products, Subscriptions and Services that fail to comply with the foregoing warranties.   

7.5.     Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS, SUBSCRIPTIONS, FIREEYE MATERIALS, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. FIREEYE AND ITS SUPPLIERS EXPRESSLY DISCLAIM, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. FIREEYE ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT PRODUCTS, FIREEYE MATERIALS, SERVICES OR SUBSCRIPTIONS WILL BE ERROR-FREE.

8.        INFRINGEMENT INDEMNITY.

8.1.     Indemnity. FireEye shall defend Customer, and its officers, directors and employees, against any third party action alleging that the FireEye Materials infringes a valid U.S. patent or copyright issued as of the date of delivery or performance, as applicable, and FireEye shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) finally awarded against such party in connection with such action.  If the FireEye Materials, or parts thereof, become, or in FireEye’s opinion may become, the subject of an infringement claim, FireEye may, at its option: (i) procure for Customer the right to continue using the applicable FireEye Materials; (ii) modify or replace such FireEye Materials with a substantially equivalent non-infringing FireEye Materials; or (iii) require the return of such FireEye Materials or cease providing affected Product, Subscriptions, Deliverables or Services, and refund to Customer, with respect to Products, a pro-rata portion of the purchase price of such Products based on a three-year straight line amortization of the purchase price, and with respect to Subscriptions, a portion of any pre-paid Fees for such Subscriptions, pro rated for any unused Subscription Term, and with respect to Services, any pre-paid Fees for Services that have not been delivered. THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF FIREEYE AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE OFFERINGS, FIREEYE MATERIALS, OR DELIVERABLES.

8.2.     Exceptions. FireEye shall have no indemnification obligations with respect to any action arising out of: (i) the use of any Product, Subscription, or Service, or any part thereof, in combination with software or other products not supplied by FireEye; (ii) any modification of the Products, Subscriptions, or Services not performed or expressly authorized by FireEye; or (iii) the use of any the Products, Subscriptions, or Services other than in accordance with this Agreement and applicable Documentation.

8.3.     Indemnification Process. The indemnification obligations shall be subject to Customer: (i) notifying FireEye within ten (10) days of receiving notice of any threat or claim in writing of such action; (ii) giving FireEye exclusive control and authority over the defense or settlement of such action; (iii) not entering into any settlement or compromise of any such action without FireEye’s prior written consent; and (iv) providing reasonable assistance requested by FireEye.

9.        LIMITATION OF LIABILITY.

9.1.     Consequential Damages Waiver.  EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INFRINGEMENT INDEMNITY),  IN NO EVENT WILL FIREEYE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT FIREEYE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9.2.     Limitation of Monetary Damages. EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INFRINGEMENT INDEMNITY), AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR ANY ORDER OR STATEMENT OF WORK, FIREEYE’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, THE OFFERINGS, AND THE FIREEYE MATERIALS SHALL BE LIMITED TO THE TOTAL AMOUNTS RECEIVED BY FIREEYE FOR THE RELEVANT OFFERINGS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH LIABILITY.

9.3.      Applicability.  THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.

10.       Compliance with Law; U.S. Government Restricted Rights.

10.1.    Compliance with Law. Each party will comply with all laws and regulations applicable to it with respect to the Offerings, including all export control regulations and restrictions that may apply to the Offerings. Customer will not export any FireEye Materials to any countries embargoed by the United States (currently including Cuba, Iran, North Korea, Sudan and Syria). Each Party acknowledges that it is familiar with and will comply with the provisions of the U.S. Foreign Corrupt Practices Act ("the FCPA") and the U.K. Bribery Act of 2010 (“UKBA”), as applicable, and each party agrees that no action it takes will constitute a bribe, influence payment, kickback, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or anti-bribery law.

10.2.    U.S. Government Restricted Rights. The Offerings, Deliverables and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  All Offerings and FireEye Materials are and were developed solely at private expense.  Any use, modification, reproduction, release, performance, display or disclosure of the Offerings, FireEye Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

11.       CONFIDENTIAL INFORMATION.

11.1.    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 of any commercial transaction between the parties (including pricing related to the Offerings) shall be considered Confidential Information.

11.2.    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 persons 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 required authorizations arising from, all U.S. and other applicable export control laws or regulations. Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of an Order or Statement of Work. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information.

11.3.    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, or obtained 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, if possible, 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.

11.4.    Injunctive Relief.  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 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.

11.5.   Return of Confidential Information.  Within thirty (30) days after the date when all Orders and SOWs have expired or been terminated, or after any request for return of Confidential Information, each party will return to the other party or destroy all of such other party’s Confidential Information, at such other party’s discretion, and, upon request, provide such other party with an officer’s certificate attesting to such return and/or destruction, as appropriate. Notwithstanding the foregoing, each party may retain additional copies of, or computer records or files containing, the Confidential Information of the other party that have been created by that party’s electronic archiving and back-up procedures, to the extent created and retained in a manner consistent with the Receiving Party's standard procedures.

11.6.   Privacy. If FireEye is a data processor under this Agreement, and in accordance with applicable data protection laws, including but not limited to the EU General Data Protection Regulation (GDPR), FireEye agrees that it will:

11.6.1  process personal data controlled by Customer when authorized by the Customer and in compliance with this Agreement and will not use or process the personal data for purposes other than those permitted by the Customer, anticipated by the Documentation for the Offerings, or for the purpose of research and development of FireEye’s Offerings;

11.6.2  adopt and maintain appropriate (including organizational and technical) security measures in processing Customer’s personal data in order to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of such data, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing;

11.6.3  take all reasonable steps to ensure that (i) persons employed by it, and (ii) other persons engaged at its place of work, are aware of and comply with applicable data privacy laws and regulations;

11.6.4  provide Customer access to a list of current sub-processors that may handle personal data at FireEye’s direction.

11.6.5  FireEye may process or otherwise transfer any personal information in or to any country outside of the country of origination, including such countries with less restrictive data protection laws, to the extent necessary for the provision of the Offerings. If required and where applicable, FireEye will enter into mutually agreed-upon country-specific data transfer mechanisms, and FireEye has entered into the EU Standard Contractual Clauses as approved by the European Commission, to help ensure an adequate level of data protection for any personal data that will be processed or transferred. FireEye does not react to Do Not Track signals because there is no standard for how those signals are sent; and

11.6.6  Customer agrees it is responsible for obtaining any applicable consents from data subjects for Customer’s use of FireEye to process Customer’s data.

12.       TERM AND TERMINATION.

12.1.    Term. This Agreement will become effective on the Effective Date and will continue in effect for a period of one (1) year (the “Initial Term” of the Agreement). This Agreement will renew for additional periods of one (1) year each (each, a “Renewal Term” and together with the Initial Term, the “Term” of this Agreement) unless either party notifies the other of its intent not to renew this Agreement by giving the other party notice of non-renewal no later than sixty (60) days prior to the end of the then-current Term. The term of each Order will be as set forth below or in the applicable Schedule, and the term of each SOW will be as set forth in the applicable SOW.

12.1.1  Products.  Products will be licensed according to the applicable Schedule, for the period of time stated on the Order (the “Product Term” e.g., if the Order lists a Product as being provided for “3Y,” the license for that Product is provided for three years from the date of the Order). If no period of time is stated on the Order, then the Product Term is perpetual, unless otherwise terminated as set forth herein. If Customer purchases a Product for a non-perpetual fixed Product Term, then the Customer may terminate the license for convenience at any time, on thirty (30) days’ written notice to FireEye. If Customer terminates the Product Term for convenience before the end of the then-current Product Term, Customer will pay any remaining fees owing for the remainder of the then-current Product Term within thirty (30) days of the effective date of termination.

12.1.2  Support Services. Support Services will begin on or shortly after the Order Effective Date (as determined by FireEye) and will continue in effect for the period of time stated in the Order (“Initial Support Term”). Unless otherwise stated on the Order, the Support Services will automatically renew for additional periods of one (1) year each (each, a “Renewal Support Term” and together with the Initial Support Term, the “Support Term”), unless either party notifies the other of its intention not to renew Support Services at least sixty (60) days prior to the expiration of the then-current Support Term. Customer may terminate Support at any time, for convenience, on thirty (30) days’ written notice to FireEye. If Customer terminates Support Services for convenience before the end of the then-current Support Term, Customer will pay any remaining fees owing for the remainder of the then-current Support Term within thirty (30) days of the effective date of termination.

12.1.3  Subscriptions.  The term of each Subscription will begin on or shortly after the Order Effective Date (as determined by FireEye) and will continue in effect for the period of time stated in the Order (“Initial Subscription Term”).  Unless otherwise stated on the Order, the Subscription will automatically renew after its Initial Subscription Term for additional periods of one (1) year each (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”), unless either party notifies the other of its intention not to renew that Subscription at least sixty (60) days prior to the expiration of the then-current Subscription Term. Customer may terminate a Subscription at any time, for convenience, on thirty (30) days’ written notice to FireEye.  If Customer terminates a Subscription for convenience before the end of the then-current Subscription Term, Customer will pay any remaining fees owing for the remainder of the then-current Subscription Term within thirty (30) days of the effective date of termination.

12.1.4  Professional Services; Statements of Work.  D&I Services described on an Order will be provided at mutually agreed-upon times, and will continue until complete, unless otherwise terminated as set forth herein. The term of each SOW will be as set forth in that SOW. If no term is expressed in an SOW, then the term of that SOW will begin on the SOW Effective Date and continue until the D&I Services described in that SOW are complete or the SOW is earlier terminated as set forth herein. Customer may request that FireEye suspend performing D&I Services during the term of a Statement of Work, and FireEye will suspend such D&I Services within 24 hours of Customer’s request. Customer acknowledges that any such suspension will not affect Customer’s obligation to pay fees for D&I Services, and that resumption of D&I Services may be delayed if FireEye redeploys personnel to other engagements during the period of suspension.

12.2.   Termination for Material Breach.  Either party may terminate any Order or any SOW upon written notice of a material breach of the applicable Order or SOW by the other party as provided below, subject to a thirty (30) day cure period (“Cure Period”).  If the breaching party has failed to cure the breach within the Cure Period after the receipt by the breaching party of written notice of such breach, the non‑breaching party may give a second notice to the breaching party terminating the applicable Order or SOW.  Termination of any particular Order or SOW under this Section will not be deemed a termination of any other Order or SOW, unless the notice of termination states that another Order or SOW is also terminated.  Notwithstanding the foregoing, the Cure Period applicable to a breach by Customer of any payment obligations under any Order or any SOW will be fifteen (15) days. Notwithstanding the foregoing, this Agreement shall terminate automatically in the event Customer has breached any license restriction and, in FireEye’s determination, that breach cannot be adequately cured within the Cure Period.

12.3.    Effect of Termination.  Termination or expiration of any Order or SOW will not be deemed a termination or expiration of any other Orders or SOWs in effect as of the date of termination or expiration, and this Agreement will continue to govern and be effective as to those outstanding Orders and SOWs until those Orders and SOWs have expired or terminated by their own terms or as set forth herein.  The provisions of Section 3 (Payment), Section 6 (Intellectual Property), Section 7.5 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Compliance with Law; U.S. Government Restricted Rights), 11 (Confidential Information), and 13 (Miscellaneous), and all accrued payment obligations, shall survive the termination of all Orders and SOWs and the relationship between FireEye and Customer.

13.       MISCELLANEOUS.

13.1.    Assignment. Customer may not assign any Order or Statement of Work, or any rights or obligations thereunder, in whole or in part, without FireEye’s prior written consent, and any such assignment or transfer shall be null and void.  FireEye shall have the right to assign all or part of an Order or Statement of Work without Customer’s approval.  Subject to the foregoing, each Order and Statement of Work shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.

13.2.    Entire Agreement.  This Agreement along with any Order, Statement of Work and the Schedules attached hereto is the entire agreement of the parties with respect to the Offerings and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter thereof.  FireEye does not accept, expressly or impliedly and FireEye hereby rejects and deems deleted any additional or different terms or conditions that Customer presents, including, but not limited to, any terms or conditions contained or referenced in any order, acceptance, acknowledgement, or other document, or established by trade usage or prior course of dealing.  This Agreement may be amended only in writing signed by authorized representatives of both parties.

13.3.    Force Majeure.  Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

13.4.     Governing Law.  This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.  Any legal suit, action or proceeding arising out of or relating to the Offerings, the FireEye Materials, this Agreement, an Order or a Statement of Work will be commenced exclusively in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party hereto irrevocably submits to the jurisdiction and venue of any such court in any such suit, action or proceeding.

13.5.     Independent Contractors.  The parties are independent contractors.  Nothing in these Terms, any Order or any Statement of Work shall be construed to create a partnership, joint venture or agency relationship between the parties.  Customer shall make no representations or warranties on behalf of FireEye.

13.6.    Language.  This Agreement and each Order and Statement of Work are in the English language only, which shall be controlling in all respects.  All communications, notices, and Documentation to be furnished hereunder shall be in the English language only.

13.7.     Notices.  All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the General Counsel/Legal Department of the receiving party, and sent to the party’s address as listed in this Agreement, or as updated by either party by written notice.  Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.

13.8.     Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable under the laws of any jurisdiction, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

13.9.    Third Party Rights.  Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

13.10.   Waiver.  The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.

13.11.   Equal Opportunity.  FireEye is committed to the provisions outlined in the Equal Opportunity Clauses of Executive Order 11246, the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Act of 1974, the Jobs for Veterans Act of 2003, as well as any other regulations pertaining to these orders.

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SCHEDULE FIREEYE
SOLUTIONS - PRODUCTS

FireEye Network Security (NX), FireEye Email Security – Server Edition (EX), FireEye Endpoint Security, FireEye Malware File Storage Scanning (FX), FireEye Detection on Demand, FireEye Central Management Series, FireEye Malware File Scanning (AX), FireEye VX, FireEye Cloud MVX, FireEye Network Forensics Platform (PX, IA), FireEye Cloudvisory

In addition to the General Terms Applicable to all Offerings, which govern this Schedule, the following terms apply to the above-referenced FireEye Products, including hardware-based, cloud and virtual implementations.

1.        Grant of License and Restrictions. Subject to payment of all fees, and any applicable user/use limitations as set forth below, FireEye grants Customer a personal, nonsublicensable, nonexclusive, right, during the Product Term, in accordance with the Agreement and this Product Schedule to (i) install software and hardware components of the Product (including any virtual appliances provided as part of the Product) as set forth in the Documentation; (ii) use the Product as set forth in the Documentation for the Customer’s internal use only. All Products, Documentation, Content Feeds, reports, alerts, and intelligence and content made available through the Products are FireEye Materials. Customer will maintain the copyright notice and any other notices that appear on the Product, including any interfaces related to the Product. Certain Products will be subject to usage and licensing limitations as set forth below (“Usage Restrictions”):

  • FireEye Network Security (NX) – Customers purchasing FireEye Network Security on a subscription basis may purchase either an Enterprise Edition version or a Per-User Edition version. Enterprise Edition versions are licensed according to the aggregated average peak network utilization (the highest average throughput used by the Customer in a fifteen-minute period) , expressed in Mbps (“Throughput”), as shown on the Order. Per-User Edition versions of the Subscription are licensed according to the number of Users in Customer’s environment, as shown on the Order. “Users” means any person whose network traffic is monitored by the Product. Customer’s Throughput for the Per-User Edition of the FireEye Network Security Product may not exceed 1 Mbps per User of Throughput, averaged over all Users (“User Throughput Limit”).
  • FireEye Email Security – Server Edition (EX) – Customers purchasing FireEye Email Security – Server Edition on a perpetual license basis may use the Product in connection with the number of attach/URL engines (i.e., email accounts) (“Attach/URL Engines”) stated on the applicable Order. Customers purchasing FireEye Email Security – Server Edition on a subscription basis may purchase either an Enterprise Edition version or a Per-User Edition version. Enterprise Edition versions are licensed according to the number of mailboxes in the Customer’s environment that are monitored by the Product (“Mailboxes”). Per-User Edition versions are licensed according to the number of Users in Customer’s environment. “Users” means any person for whom a Mailbox is monitored by the Subscription. Customers purchasing Per-User Edition versions may use the Subscription to monitor up to 1.5 Mailboxes per User, averaged across all Users (“User Mailbox Limit”).
  • FireEye Endpoint Security - With respect to the FireEye Endpoint Security Product, Customer may install the “agent” software component of the Product on the number of Endpoints (or “Nodes”) stated on the applicable Order. “Nodes” or “Endpoints” are computing devices owned or controlled by Customer (such as laptops, workstations, and servers), on which Customer installs the agent software. Customers purchasing FireEye Endpoint Security on a subscription basis may purchase either an Enterprise Edition version or a Per-User Edition Version. Enterprise Edition versions of the Product are licensed according to the number of Endpoints purchased. Per-User Edition versions of the Product are licensed according to the number of Users in Customer’s environment. “Users” means any person whose computing activity is monitored by the Product. Customer may use the Subscription to monitor up to 1.5 Endpoints per User, averaged over all Users (“User Endpoint Limit”).
  • FireEye Cloudvisory – Customers purchasing FireEye Cloudvisory on a Subscription basis may use the Product for (i) up to the level of Workloads purchased, as set forth on the applicable Order; (ii) when purchasing a cloud-based deployment, up to 500GB of storage (excess storage may be subject to additional fees). For purposes of this Schedule, “Workloads” means cloud services supported by cloud platform providers, which are included on the list of supported Workloads provided by FireEye, which may be updated from time to time in FireEye’s discretion.
  • FireEye Detection on Demand – with respect to FireEye Detection on Demand, Customer may purchase either on a total Submissions basis, or a Per-User basis. Customers purchasing a total number of Submissions may use the Product for up to the number of submissions purchased, as stated on the applicable Order, during the Product Term stated on the Order (if no Product Term is stated on the Order, the Product Term will be one (1) year from the date of the Order). Customer purchasing on a Per-User basis may use the Product for up to twenty (20) submissions per User per month of the Product Term, aggregated across all of Customer’s Users. “Submissions” are files or other artefacts submitted to the Product by Customer for processing. FireEye reserves the right to limit the volume of submissions within a specific time period in its sole discretion to ensure performance of the Product.
  • FireEye Malware File Storage Scanning (FX) – Customers purchasing FireEye File Analysis (FX) on a subscription basis may use the Product to scan up to the maximum capacity of files as stated in the Documentation.

Exceeding the limitations set forth above or in the Documentation may result in degraded performance. FireEye may use technical measures to prevent over-usage or to stop usage after any usage limitations are exceeded. FireEye reserves the right to audit Customer’s use of the Products to ensure compliance with this Agreement. Updates, preview features, Content Feeds, access to portals, and/or Support Services are not necessarily provided with the Products, may require additional payment or include additional terms and conditions, and may be provided on a “preview” basis for a limited period at no additional charge but then licensed for an additional fee at a later date. Customer acknowledges that Third Party Software distributed with the Products may be subject to separate license terms, and specifically, if the Oracle™ Java® software is included within the Product, that software is subject to the license found here.   

2.        Content Feeds.  Subject to Customer’s payment in full of all associated fees for the applicable FireEye Content Feed, as set forth on the applicable Order, FireEye shall grant a limited, non-exclusive, personal, non-transferable, non-sublicenseable right to use the Content Feed as set forth in the Documentation for the applicable Product, for Customer’s internal business purposes during the active Support Term for the applicable Product. FireEye shall not disclose to any third party any personally identifiable data or Customer Confidential Information in connection with the Content Feed unless expressly authorized to do so by Customer.  The Content Feeds available to the Customer for purchase with respect to the Products may include FireEye Dynamic Threat Intelligence or Advanced Threat Intelligence (ATI), as described in the Documentation. Customers purchasing subscription-based versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis will receive access to the DTI Content Feed in 2-way mode, and may upgrade the DTI Content Feed to 1-way or offline mode upon payment of additional fees.

3.        Support Services. Subject to Customer’s payment in full of all associated fees for FireEye Support Services, FireEye shall provide Support Services for the Products as set forth at FireEye’s Support Programs and Terms page, as may be updated by FireEye in its discretion. Customers purchasing subscription-based versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis will receive access to Platinum Support Services (or Government Platinum Support Services, if applicable), and may upgrade to Platinum Plus Support Services (or Government Platinum Plus Support Services, if applicable) upon payment of additional fees.

4.         Helix Portal Access. Customers purchasing subscription-based versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis will receive access to the FireEye Helix portal (“Helix Portal”), where the Customer can view alerts and other information. The Helix Portal may be used to monitor up to 250,000 alerts per day, and up to 100 Events per Second. Use in excess of this limit may result in degraded performance of the Helix Portal.

5.         Hardware. Customer may purchase hardware appliances for use with subscription versions of FireEye Network Security, FireEye Email Security – Server Edition, FireEye Endpoint Security, and FireEye File Analysis, on either a subscription or perpetual license basis. In either case, hardware is shipped FOB Origin, and title to and risk of loss of the hardware passes to the Customer upon delivery to the carrier. Customers purchasing hardware on a perpetual license basis will receive a perpetual, personal, nonsublicensable, nonexclusive right to use the software installed on the hardware. Customers purchasing hardware on a subscription license basis will receive a personal, nonsublicensable, nonexclusive right to use the software installed on the hardware during the Product Term, which will be a minimum of three (3) years.

6.         True Up. FireEye reserves the right to audit Customer’s use of the Products to ensure compliance with this Agreement.  If at any point during the Product Term, Customer’s usage exceeds the purchased limits as set forth above or on the applicable Order in three (3) or more calendar days in any consecutive thirty-day period, FireEye may issue a true-up invoice for the pro-rated difference between the fees already paid for that Product Term and FireEye’s list prices for the excess usage, pro-rated to reflect that thirty-day period and the remainder of the Product Term.  The fees for any renewal Product Term will be quoted at the usage associated with the actual usage for the immediately preceding year of the Product Term. At the end of each Product Term, FireEye may true-up fees for that Product Term, and if the average monthly usage for that Product Term exceeds the purchased usage limits, then FireEye will issue a true-up invoice reflecting the difference between the fees already paid for that Product Term and the fees for the Customer’s actual usage.

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SCHEDULE: FIREEYE SOLUTIONS
FIREEYE HELIX SUBSCRIPTION

In addition to the General Terms Applicable to all Offerings, which govern this Schedule, the following terms govern the FireEye HelixSubscription (“Helix Subscription”).

1.  Helix Software, Alerts

1.1.1     Helix Software and Hardware.  As part of the Helix Subscription, FireEye may deliver to Customer one or more software files (individually and collectively, “Helix Software”) . Subject to full payment of all Fees associated with the Helix Subscription, FireEye grants to Customer a non-exclusive, limited right and license to install and run the Helix Software during the Subscription Term solely for purposes of using the Helix Subscription in accordance with the Documentation for the Helix Subscription.

1.1.2     Access; Customer Logs.  Access; Customer Logs. FireEye will provide Customer with credentials to enable access to the Helix Subscription. Using the Helix Software, and subject to payment of Fees for the Helix Subscription, Customer may upload Customer Logs to the Helix portal (“Helix Portal”). Service Levels for the Helix Portal will be as set forth on FireEye’s Service Levels for Subscriptions page. “Customer Logs” means any communications, logs and other content and information that Customer or anyone using Customer’s account contributes to or through the Helix Portal. Customer grants to FireEye a perpetual, irrevocable, worldwide, paid-up, non-exclusive license and right to reproduce, modify, create derivative works from, publish, distribute, sell, sub-license, transmit, publicly display and provide access to Customer Logs, for purposes of enhancing FireEye’s products and services, so long as (i) FireEye ensures that any Customer Confidential Information is removed from Customer Logs, and (ii) FireEye’s use of Customer Logs does not in any way identify Customer or its employees or in any other way allow a third party to identify Customer as the source of the Customer Logs. Customer Logs are Customer’s property, and other than the licenses granted in herein, FireEye does not obtain any ownership rights in Customer Logs. FireEye will retain Customer Logs for a period of thirteen (13) months from the earlier of the date the Customer Log was received and the end of the Helix Subscription Term. Subject to Customer’s payment of additional fees, FireEye will store Customer Logs for a longer period, as set forth in the Order for such extended storage.

1.1.3     Helix Alerts. Some features of the Helix Subscription may generate alerts of suspected malicious activity (each, a “Helix Alert”).  Helix Alerts are FireEye Materials.  FireEye hereby grants to Customer a limited, non-exclusive right to use Helix Alerts, and reproduce and distribute those Helix Alerts internally for Customer’s own business purposes.

1.1.4     Support.  Subject to Customer’s payment in full of all associated fees for FireEye Support Services, FireEye shall provide Support Services for the Helix Subscription as set forth at FireEye’s Support Programs and Terms page, which may be updated by FireEye in its discretion. If Customer requests FireEye to create or assist with creating custom parsers for use with the Subscription, then upon mutual agreement, FireEye will accommodate that request at the rates quoted at the time of the request.

2.  Event Volume; True-Up

2.1       Fees for the Helix Subscription are divided into “Tiers” based on the volume of events processed through the Helix Subscription per second (“Event Volume”).  If at any point during the Subscription Term, Customer’s Event Volume exceeds the Tier upon which Customer’s Helix Subscription Fees were based, FireEye will not guarantee that Customer Logs in excess of the purchased Tier will be ingested and processed by the Helix Subscription. In times of Event Volume in excess of the paid Tier, Customer Logs will enter a queue.  Excessive queueing may cause Customer Logs to be lost from the queue.  If at any point during the Subscription Term, Customer’s average Event Volume for any consecutive thirty-day period exceeds the Tier upon which Customer’s Helix Subscription Fees were based, FireEye may issue a true-up invoice for the pro-rated difference between the Fees already paid for that Subscription Term and FireEye’s list prices for the Fees for the Tier associated with Customer’s actual Event Volume for that thirty-day period, pro-rated to reflect that thirty-day period and the remainder of the Subscription Term.  Until such time that the True Up invoice is paid in full, the Helix Subscription will continue to ingest and process only the Event Volume of the purchased Tier, allowing any excess Customer Logs to enter queueing conditions. The Tier for any Renewal Subscription Term will be the Tier associated with the actual Event Volume for the immediately preceding Subscription Term.

2.2       At the end of the Initial Subscription Term and each Renewal Subscription Term, FireEye may true-up Fees for that Subscription Term, and if the average monthly Event Volume for that Subscription Term exceeds the maximum Event Volume for the Tier for which Customer previously paid Fees, then (a) FireEye will issue a true-up invoice reflecting the difference between the Fees already paid for that Subscription Term and the Fees for the Tier associated with Customer’s actual Event Volume.

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SCHEDULE – FIREEYE SOLUTIONS
FIREEYE EMAIL SECURITY – CLOUD EDITION SUBSCRIPTION

In addition to the General Terms Applicable to all Offerings, which govern this Schedule, the following terms govern the Email Threat Prevention Subscription and the FireEye Email Security – Cloud Edition Subscription. 

1.         Definitions.

“Email Subscription" means the scanning, filtering, and delivery of email by the FireEye Email Threat Prevention Subscription or the FireEye Email Security – Cloud Edition Subscription. 

“Customer Data” means data and information originated by Customer that Customer submits to the Email Subscription.

“Customer Representatives” means any employee of Customer to whom Customer provides access to the Email Subscriptions (or any component thereof) for use on behalf of and for the benefit of the Customer and for Customer’s internal business purposes, subject to all the terms and conditions of this Agreement.

“Licensed Inboxes” means the number of email inboxes Customer may have at any time that are registered to the Email Subscription; which maximum number shall be based on the Subscription fees paid by Customer and identified on the relevant purchase order from Customer as approved and invoiced by FireEye. 

2.         Right of Access and Use.  During the Subscription Term, and subject to the terms of this Agreement, FireEye grants to Customer a non-exclusive right to permit those Customer Representatives authorized by Customer to access and use the Email Subscription on Customer's behalf in compliance with the terms of this Agreement and the Documentation for the Email Subscription.  Notwithstanding anything else herein, the number of email inboxes Customer may register to the Email Subscription may not exceed the number of Licensed Inboxes. Service Levels for the Email Subscription will be as set forth on FireEye’s Service Levels for Subscriptions page.

3.         Restrictions.  Except as otherwise expressly permitted under this Agreement, Customer agrees that it shall not, nor shall it permit any third party to, (a) use the Email Subscription (or any portion thereof) in excess of or beyond the Subscription Term, the Licensed Inbox quantity, and/or other restrictions/limitations described in this Agreement; use the Email Subscription to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; or (d) interfere with or disrupt the integrity or performance of the Email Subscription or third-party data contained therein. Unless Customer has purchased the AV/AS version of the Email Subscription, Customer shall route email through a commercially available secure email gateway for anti-spam scanning prior to relay through the FireEye network.  FireEye may, in its discretion, limit the volume of email traffic flowing through the Email Subscription to help avoid Service Outages (as defined below). No rights or licenses are granted other than as expressly and unambiguously set forth herein. 

4.         Support Services.  Subject to Customer’s payment in full of all associated fees for FireEye Support Services, FireEye shall provide Support Services for the Email Subscription as set forth at FireEye’s Support Programs and Terms page, as may be updated by FireEye in its discretion.

5.         True Up.  FireEye reserves the right to audit Customer’s use of the Email Subscription to ensure compliance with this Agreement.  If at any point during the Subscription Term, Customer’s usage exceeds the purchased limits as set forth above or on the applicable Order in three (3) or more calendar days in any consecutive thirty-day period, FireEye may issue a true-up invoice for the pro-rated difference between the fees already paid for that Subscription Term and FireEye’s list prices for the excess usage, pro-rated to reflect that thirty-day period and the remainder of the Subscription Term.  The fees for any renewal Subscription Term will be quoted at the usage associated with the actual usage for the immediately preceding year of the Subscription Term. At the end of each Subscription Term, FireEye may true-up fees for that Subscription Term, and if the average monthly usage for that Subscription Term exceeds the purchased usage limits, then FireEye will issue a true-up invoice reflecting the difference between the fees already paid for that Subscription Term and the fees for the Customer’s actual usage.

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