These Support Terms and Conditions (“Support T&C’s”) govern Nozomi Networks, Inc. (“Nozomi Networks”) Support obligations along with any Support Response Level Objectives and Service Level Agreements supplied by Nozomi Networks. These Support T&C’s are in addition to and supplement the Nozomi Networks End User License Agreement, “EULA,” which is available at: https://www.nozominetworks.com/eula/. Unless defined below, all capitalized terms herein shall have the same meaning as in the EULA. As it relates to the provision of support services under these Support T&C’s, in the event of a conflict between these Support T&C’s and any other agreements or contracts the order of precedence shall be; 1) These Support T&C’s; 2) any Support Response Level Objectives and applicable Service Level Agreements; 3) the EULA along with any applicable policies referenced therein; and 4) an Order (as defined in the EULA).
a. Entitlement. Customer is entitled to support only with a paid for Support and Maintenance contract and for the length of term as provided for or identified in an Order. For duration of the term Customer has purchased, Nozomi Networks, will use commercially reasonable efforts to provide Support as described in these Support T&C’s. A support term commences upon Product shipment. Nozomi Networks may suspend performance of Support if Nozomi Networks does not receive payment when due or if Customer is in breach of any contractual obligation to Nozomi Networks. Nozomi Networks’ Support contact information is available at https://www.nozominetworks.com/company/contact-us/.
b. Provision of Support. Support is contacted primarily through Nozomi Networks’ web support portal (generally accessible on a 24x7x365 basis excepting periodic maintenance or network unavailability) and secondarily through telephone support. Nozomi Networks’ Support obligation is limited to using reasonable efforts to remedy a reported failure of the Products to substantially operate in accordance with Nozomi Networks’ official specifications or Documentation (i.e., the then-current, generally available, written user manuals and online help and guides for Software provided by Nozomi Networks). Support does not include Hardware or Software installation, training, consulting services or preventative maintenance.
c. Product Support
Nozomi Networks shall supply support services for its products as follows:
For Software problems requiring advanced or higher-level engineering support, then Nozomi Networks will provide such support in accordance with estimated timelines as provided by the Nozomi Networks Support Technician. If Nozomi Networks determines the issue or problem is the result of a defect in services provided directly by Nozomi Networks, then at its sole discretion, Nozomi Networks may provide on-site technical support. If such support is deemed necessary by Nozomi Networks, then Nozomi Networks will be responsible for travel and related expenses incurred in providing the on-site Support. If Nozomi Networks determines that Customer’s problem was not caused by Nozomi Networks Products or if the on-site Support was requested by Customer, then Customer is responsible for paying the support technician or engineers time billed at Nozomi Networks’ then-current daily time and materials rate, plus reasonable travel and lodging expenses for the on-site Support.
Nozomi Networks will have no Support obligations for any conditions attributable to:
(i) negligence, misuse or abuse of the Product or accident or neglect by Customer or any third party;
(ii) installation, operation or use of the Product other than in accordance with Nozomi Networks’ specifications, instructions and the applicable Documentation provided by Nozomi Networks;
(iii) modifications, alterations or repairs to the Product made by a party other than Nozomi Networks or a party expressly authorized or designated by Nozomi Networks;
(iv) use of a Product in an environment, in conditions, in a manner or for a purpose for which Product was not intended or designed or failure to maintain in accordance with Nozomi Networks’ instructions, specifications or the applicable Documentation;
(v) use of the Product in combination with any non-Nozomi Networks apparatus, data or programs outside Nozomi Networks’ typical, recommended or reasonably anticipated use of the Products within its official Product specifications; or
(vi) causes beyond Nozomi Networks’ control.
In order to receive Support from Nozomi Networks, Customer must: (i) pay all applicable fees; (ii) designate from time to time a reasonable number of authorized persons trained by Nozomi Networks who can contact Nozomi Networks for Support, and these are Customer’s only personnel entitled to contact Nozomi Networks for Support; (iii) provide Nozomi Networks access to Customer’s network and personnel as Nozomi Networks reasonably requests to assist Nozomi Networks in performing the Support; (iv) use the Products in a supported configuration and maintain the Software within the then-current prior two (2) Releases; (v) refrain from arbitrarily changing Product settings or configurations reasonably recommended by Nozomi Networks; (vi) ensure that proper licenses have been obtained for all Software and adhere to all licensing terms and conditions as set forth in the EULA; and (vii) make available to Nozomi Networks any of Customer’s systems data, information and other materials reasonably required by Nozomi Networks for the Support (“Customer Materials”), the accuracy of which is solely Customer’s responsibility.
Subject to Customer’s propriety rights in the Customer Materials, Nozomi Networks will exclusively own all rights, title and interest in and to any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Nozomi Networks or Nozomi Networks’ personnel in connection with performing Support (“Nozomi Networks Materials”), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Customer will have no rights in the Nozomi Networks Materials except as expressly agreed to in writing by Nozomi Networks and Customer. Customer agrees that it may be necessary for Nozomi Networks to collect, process and use Customer’s data in order to perform Nozomi Networks obligations to provide Support. Customer consents to these activities and to the transfer of the data to Nozomi Networks affiliated companies and service providers located throughout the world who are subject to confidentiality agreements with Nozomi Networks.
See Section 7 of the EULA.
If Customer has not continuously purchased and complied with the terms and conditions of Support, Customer may request that Nozomi Networks perform an inspection of the Products and any professional services Nozomi Networks reasonably determines are required for the Products to be certified as substantially operating within their official Product specifications. After Nozomi Networks’ certification, Customer may re-instate Support if Nozomi Networks then offers it in general commercial availability and upon payment to Nozomi Networks of: (i) time and materials services payment for certification described above; (ii) the Support fees that would have been payable at Nozomi Networks’ then applicable annual rate of Support for the period the Products were not covered by Support; and (iii) the Support fees for the annual period commencing upon the re-in statement of Support.
If Customer sells or otherwise transfers any Hardware to any third party, Customer will either de-install and remove the Software from such Hardware prior to sale or transfer or provide Nozomi Networks with reasonable written notice and an opportunity to remove or disable such Software prior to any sale or transfer of the Hardware. Subject to availability of resources, Nozomi Networks will provide de-installation services to Customer at Nozomi Networks’ then current time and materials rates and entered into a separate agreement with Nozomi Networks to receive such de-installation services. Subject to availability of resources, Nozomi Networks will provide re-installation and re-certification services to a third party purchaser or transferee of Nozomi Networks Hardware, in each case at Nozomi Networks’ then current time and materials rates provided the purchaser or transferee has: (i) met Nozomi Networks credit requirements; (ii) obtained a Software license from Nozomi Networks; (iii) entered into a separate agreement with Nozomi Networks to receive re-installation and re-certification services; (iv) obtained re-certification of the Products as installed; and (v) paid any Support reinstatement fees and purchased at least a one (1) year term of annual Support from Nozomi Networks commencing upon the date of Product transfer. Customer’s remaining outstanding term of Support is not transferable. Notwithstanding the foregoing, Nozomi Networks reserves the right to refuse to grant a Software license or provide Services to a proposed purchaser or transferee as determined in Nozomi Networks’ sole discretion.