REVISED MARCH 28, 2023
THE NOZOMI NETWORKS PRODUCTS END USER LICENSE AGREEMENT (THIS “AGREEMENT” OR “EULA” APPLIES TO THE DOWNLOAD, USE, OR INSTALLATION OF NOZOMI NETWORKS PRODUCT(S) AND ANY UPDATES THERETO, INCLUDING HARDWARE APPLIANCE PRODUCTS AND FIRMWARE INCLUDED THEREIN, SOFTWARE, SUBSCRIPTION SOFTWARE OR SERVICES, SUBSCRIPTION HARDWARE OR HARDWARE AS A SERVICE, AND SOFTWARE-AS-A-SERVICE PRODUCTS SOLD BY NOZOMI NETWORKS. INSTALLATION, ACTIVATION, AND/OR USAGE OF THE PRODUCTS CONSTITUTES ACCEPTANCE BY END USER OF THE TERMS IN THIS AGREEMENT, AS AMENDED OR UPDATED FROM TIME TO TIME OR UNLESS OTHERWISE EXPRESSLY AGREED TO AND SIGNED BY BOTH PARTIES.
PRODUCT LICENSE AGREEMENT
This is a license agreement between “End User” or “Customer” and Nozomi Network, Inc., a Delaware corporation, and/or its Affiliates (together referred to herein as “Nozomi Networks”). Each party may be referred to herein as a “Party” or together the “Parties.”1. Definitions.The following capitalized terms shall have the meanings set forth below:
a. “Affiliate(s)” means an entity controlled by either party by ownership of at least fifty percent (50%) of the voting equity interests of such entity.
b. “Appliance” means the Nozomi Networks branded computer hardware on which the Software operates.
c. “Delivery” shall mean, (i) in the case of Software, when the Software is made available by Nozomi Networks for End User to electronically download; (ii) in the case of Subscription Services, when the Subscription Service has been provisioned and made available to End User to access; and (iii) in the case of an Appliance, when the Appliance has been tendered by Nozomi Networks for shipment.
d. “Documentation” means Nozomi Networks technical specifications that accompany and describe the installation, use and operation of a Product.
e. “End User”or “Customer” means the party that has purchased or licensed the Products for its own use, either directly from Nozomi Networks or through an authorized third-party reseller. The Products ordered through an Authorized Partner (defined below) are licensed directly to the End User subject to the terms and conditions herein.
f. “Hardware”means the physical Nozomi Networks appliance on which the Software operates.
g. “Order” means either a signed Nozomi Networks quotation and Purchase Order referencing a Nozomi Networks quotation number, or other written ordering document accepted by Nozomi Networks identifying the agreed upon the Products and Services to be purchased, pricing arrangements, license period, and other terms and conditions as may be mutually agreed upon by the “Parties.”
h. “Open-Source Software” means third party software that Nozomi Networks distributes with the Software pursuant to a license that requires, as a condition of use, modification and/or distribution of such software, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
i. “Products” means Appliances, Software, or Subscription Services.
j. “Professional Services” means the installation, configuration, and training services that Nozomi Networks may provide to an End User.
k. “Services” means Professional Services or Support.
l. “Software” means Nozomi Networks (in object code format) or content, any updates or upgrades thereto provided to End User by Nozomi Networks or its Affiliates and any Documentation pertaining thereto. Software may be delivered to End User on Appliances or on a standalone basis. The term “Software” does not include Open-Source Software.
m. “SaaS” means the Nozomi Networks Software-as-a-Service products sold on a term or subscription basis, including but not limited to Nozomi Networks Vantage™.
n. “Subscription Services” means the subscription services, SaaS services, term software license, and hardware/software term license bundles, including content, updates and upgrades thereto, that may be made available to End User by Nozomi Networks directly or through its partners and suppliers. Subscription Services include, without limitation include Nozomi Networks Arc™, OT Threat Feed service, Nozomi Networks Vantage™ or other subscription and software services offered by Nozomi Networks on a term or subscription basis.
o. “Support” means the technical support and maintenance services for the Product and periodic bug fixes and updates to the Software that Nozomi Networks may make generally available at an annual subscription cost to End Users.
a. On-Premise Guardian™ Term and Subscription Software License. For the term (including a subscription term) confirmed by Nozomi Networks in an Order, Nozomi Networks grants End User a non-exclusive, limited, royalty-free license, without the right of sublicense, to execute the Software (“License”). The License is non-exclusive, non-transferable and limited to the use of the object code version of the Software program (“Program”) for End User’s and its Affiliate’s internal business purposes only in accordance with these terms and conditions, the user manual, registration card and accompanying documents solely in conjunction with End User’s use of the Hardware (except where no Hardware has been delivered).
c. Arc™ and Other Subscription Services or Add-Ons.i. Nozomi Networks Arc™. Nozomi Networks Arc (“Arc”) is a subscription-based artificial intelligence software add-on to either Guardian or Vantage and is a floating license that is sold in concurrent packets in minimum quantities of five (5) per license packet. End Users may purchase as many concurrent license packets from Nozomi Networks or an Authorized Partner as needed to satisfy their internal business needs.Arc is installed on an End User’s local machines either utilizing on an on-premise Guardian installation or cloud Vantage instance. Arc may be installed on any machine and licenses may be reused for End User’s and its own Affiliates’ internal business purposes, provided End User maintains sufficient licenses and such licenses remain active and current in End User’s install base. End User and its user Affiliates assume full and sole responsibility for the installation and administration of Arc, as well as for any activities, actions, or any other operations, acts, or exploits performed by utilizing Arc in End User’s or its Affiliates’ internal networks.
i. Embedded Software. End User acknowledges that the Software included with Hardware is licensed and not sold. Such Software is licensed solely in conjunction with such Appliance (and not separately or apart from such Appliance). If End User sells, leases, lends, rents, distributes, or otherwise transfers any Appliance to any third party or if Nozomi Networks terminates this Agreement under Section or for a breach of Section 2.c, then End User will erase all Software from the Hardware.
ii. Subscription Hardware Products or Hardware as Service (“HwaaS”). End User may choose from a select group of Nozomi Networks Hardware options to run its subscription or term-based Software licenses. Term-based license subscription Software is only licensed for the duration of the Subscription Term and must be renewed to maintain functionality. At the expiration of the Subscription Term, the Appliance shall be owned by the End User and does not need to be returned. If the Appliance reaches the end of its useful life (as described in Nozomi Networks’ End of Life Policy available at: https://www.nozominetworks.com/legal/end-of-life-policy) at any time during the paid Subscription Term, then Nozomi Networks may upon End User’s written request, supply to End User an equivalent and updated Appliance. During the Subscription Term, the warranties set forth below in Section 4 shall apply. For HwaaS programs additional HwaaS terms apply. Such terms shall be provided upon enrollment into the HwaaS program.
a. Limitation on Use. End User may not (i) make unauthorized copies of the Products, (ii) disclose, distribute, transfer or market the Program to third parties, (iii) remove or modify any proprietary notices, labels or marks on or in any copy of the Program, (iv) distribute, sell, sublicense, rent, lease or use the Program(s) or Hardware (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Program available to third parties, (v) translate, reverse engineer, decompile or disassemble the Program, or (vi) use a previous version or copy of the Program after having received an upgraded version as a replacement of the prior version. All copies of the prior version must be destroyed by End User.
b. Proprietary Rights. All intellectual property rights (including but not limited to copyrights, patents, and trademarks), title, interest, and any other rights to the Products and any copy made thereof by End User and to any Product remain with Nozomi Networks. End User acknowledges that no title to the intellectual property in the Software or other Products is transferred to End User and End User will not acquire any rights to the Software or other Products except for the specific license as expressly set forth in section 2 (“License Grant”) above. End User agrees to keep confidential all Nozomi Networks confidential information and only to use such information for the purposes for which Nozomi Networks disclosed it. Any ideas, suggestions, modifications and the like made by End User with respect to a Product will be the property of Nozomi Networks regardless of whether Nozomi Networks chooses to exercise its rights to incorporate such ideas, suggestions or modifications into the Product.
e. Transfer by Authorized Partners to End User. If End User is a Nozomi Networks authorized reseller or distributor of Products (“Authorized Partner”), Authorized Partner may transfer (not rent or lease unless specifically agreed to in writing by Nozomi Networks) the Software to one End User on a permanent basis, provided that: (i) Authorized Partner ensure that End User receives a copy of this Agreement, is bound by its terms and conditions, and, by selling the Product or Software, Authorized Partner hereby agree to enforce the terms in this Agreement against such End User, (ii) Authorized Partner at all times comply with all applicable export control laws and regulations of the US and corresponding jurisdictions, and (iii) Partner agrees to refund any fees paid by an End User who purchased Product(s) from Authorized Partner but does not agree to the terms contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Further, if reseller or distributor are not authorized resellers or distributors of the Products (“Unauthorized Party”), but regardless by selling Product(s) or Software, End User hereby agrees bound by the restrictions and obligations herein. Notwithstanding anything to the contrary, distributors, resellers and other Nozomi Networks partners or suppliers (a) are not agents of Nozomi Networks and (b) are not authorized to bind Nozomi Networks in any way.
4. Limited Warranty Terms.
Nozomi Networks provides this limited warranty for its product only to End User identified in an Order and who is also the original licensee of the Products and/or Services from Nozomi Networks. Warranties provide limited liability for Nozomi Networks or its designated representative to repair and/or replace manufacturing defects in the Products. They are generally limited in both the duration and the support they offer. It is the responsibility of Nozomi Networks or Nozomi Networks’ designated representative to repair the warrantied product as described below.
a. Hardware. Except in the European Union or European Economic Community and subject to applicable law in such region, Nozomi Networks warrants for a period of twelve (12) months following receipt by End User (the “Warranty Period”), that the Hardware is free from material defects in manufacture and materials (“Limited Warranty”). Nozomi Networks is not liable for defects in the Hardware notified by End User after expiration of the Warranty Period. This Limited Warranty does not apply to Hardware for malfunctions attributable to extrinsic causes, such as: (a) natural disasters including fire, smoke, water, earthquakes or lightning; (b) electrical power fluctuations or failures; (c) abuse, misuse, accident, alteration, neglect, including End User’s failure to maintain the system, improper transport or storage, mechanical or electrical shock or operation outside of the environmental specifications;(d) repair, correction or modification not provided or authorized by Nozomi Networks; (e) the combination or use of the Hardware with software not provided by Nozomi Networks or not authorized by Nozomi Networks, or (f) uses that are not consistent with the Product documentation supplied by Nozomi Networks. Nozomi does not warrant that the Hardware operates without interruption or without error. This limited warranty extends only to the original user of the Product.
i. RMA Replacement. Hardware warranty includes replacement or repair for Hardware provided the product is either still under the Warranty Period or End User maintains a valid and current Nozomi Networks Support contract or purchased an applicable subscription product. Nozomi Networks or its Authorized Partner will either repair or replace the defective Hardware in accordance with its RMA Policy as available at: https://www.nozominetworks.com/legal/rma-procedures-and-policies.
ii. Out of Warranty Hardware. For Hardware which is not covered by above Limited Warranty but can be reworked (new label, erasure of all data), Nozomi will submit an offer to End User for such reworking. End User’s sole and exclusive remedy and the entire liability of Nozomi Networks and its Authorized Partner under this limited warranty will be, at Nozomi Networks’ or its service centers’ option, shipment of a replacement within the Warranty Period. Nozomi Networks’ obligations hereunder are conditioned upon the return of affected Hardware in accordance with Nozomi Networks or its service centers’ then-current RMA procedures available at: https://www.nozominetworks.com/legal/rma-procedures-and-policies.
b. Software. For stand-alone software, Nozomi Networks warrants that the Software will substantially conform to the applicable Documentation for ninety (90) days following the date the Software is made available to End User.
a. Evaluation Products. Nozomi Networks grants to End User a non-exclusive, worldwide, non-transferable, non-sublicensable license during the applicable Term to install and use the evaluation Software solely at the location identified in writing by End User and solely for End User’s internal evaluation of the evaluation Product. Notwithstanding anything to the contrary in this Agreement, Nozomi Networks does not provide maintenance and support, or warranty with respect to Evaluation Software. End User may only grant access to the Evaluation Product to employees, contractors, agents or consultants who are bound to confidentiality and non-use obligations no less protective of Nozomi Networks’ proprietary rights in this Agreement. Notwithstanding anything to the contrary as stated in this Agreement, all worldwide right, title and interest to the Evaluation Product, and all intellectual property rights in and to them, are and will remain the exclusive property of Nozomi Networks.
b. Evaluation Period. Unless otherwise agreed to by the parties in writing or terminated earlier in accordance with this Agreement, an evaluation shall commence upon delivery of the Evaluation Product and continue for ninety (90) days thereafter or for such length of time as mutually agreed upon between the parties in writing (“Evaluation Period”). Upon the expiration or termination of the Evaluation Period, (i) all licenses granted under this Section 3 for such evaluation will cease, and (ii) End User will immediately return the Evaluation Product to Nozomi Networks and destroy or erase any intangible copies of the Evaluation Product and upon written request certify in a writing signed by an officer of End User and delivered to Nozomi Networks that all such copies of have been returned, destroyed or erased.
c. Additional Evaluation Terms. Except for Nozomi Networks indemnity obligation below in Section 14 and notwithstanding anything else to the contrary as contained in this Agreement, End User acknowledges and agrees that the Evaluation Product is provided for evaluation “AS-IS” and Nozomi Networks and its suppliers make no representations or warranties of any kind, express or implied, with respect to the Evaluation Product, including, without limitation, any implied warranties of merchantability, title, fitness for a particular purpose, informational content, system integration, enjoyment, non-infringement or any other warranties arising out of course of dealing, usage or trade shall arise with respect to an Evaluation Product.
Nozomi Networks may make certain Software available for license without charge, and such Free Software may have limited features, functions, or other limitations of any kind. Subject to End User’s compliance with this Agreement, Nozomi Networks grants to End User a non-exclusive, worldwide, non-transferable, non-sublicensable license during the applicable Term to install and use the Free Software within the Licensed Capacity solely for End User’s internal business purposes. Notwithstanding anything to the contrary in this Agreement, Nozomi Networks does not provide maintenance and support, warranty, or indemnification with respect to Free Software.
Except for renewals, the following terms in this Section 6 may only apply to End User’s or customers ordering directly from Nozomi Networks. If the Products or Services are purchased or licensed through an Authorized Partner, then the payment and delivery terms negotiated between End User/customer and Authorized Partner shall apply as between those parties and not Nozomi Networks.
a. Fees and Payment Terms. For orders accepted directly by Nozomi Networks, End User shall pay to Nozomi Networks the applicable fees and charges designated by Nozomi Networks in an invoice (“Fees”). Any Fees payable to Nozomi Networks are non-refundable and payable in US Dollars. End User shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against End User, except for taxes based on Nozomi Networks’ income. If End User is required under any law or regulation of any governmental entity or authority outside of the United States, to withhold or deduct any portion of the payments due to Nozomi Networks, then End User shall increase the sum payable to Nozomi Networks by the amount necessary to yield to an amount equal to the sum it would have received had no withholdings or deductions been made. Fees shall be invoiced as follows: (a) fees for all Subscription Services, including term Software licenses and Support shall be invoiced for the entire Subscription Term at the time of the initial order and in advance of each renewal period. Exceptions to payment terms may only be applied upon mutual written agreement between the parties; (b) fees for other Software licenses and Appliance purchases will be invoiced upon Delivery. All payments from End User to Nozomi Networks are due net thirty (30) days after the date of invoice. If End User’s account for Subscription Services or Support is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Nozomi Networks reserves the right to suspend such services to End User, without liability to End User, until such amounts are paid in full. Nozomi Networks may conduct and/or direct an independent accounting firm to conduct, during normal business hours and not more than once yearly, an audit of End User’s relevant computers and records to confirm End User’s use of Products compliance with this Agreement. End User shall provide reasonable cooperation with any such audit or at least provide reasonable cooperation in answering written questions provided by Nozomi Networks to assist Nozomi Networks in satisfying its compliance obligations.
b. Delivery. For orders placed by End User directly with Nozomi Networks, Nozomi Networks will use commercially reasonable efforts to ship the Appliances and the Software license keys at the times requested in Orders (in partial or full shipments); provided, however, that Nozomi Networks shall in no event be liable for any delay in Delivery or for failure to give notice of delay. Without liability to any person and without prejudice to any other remedy, Nozomi Networks may withhold or delay shipment of any Order if End User is late in payment or is otherwise in default under this Agreement. Title to purchased Appliances and risk of loss shall pass to End User upon Delivery, and Products shall be deemed accepted by End User upon Delivery. Purchased Appliances shall be delivered FCA (Nozomi Networks dock). End User may specify shipping instructions with the Order. In the absence of specific shipping instructions from End User, Nozomi Networks will ship through its common courier. End User shall pay and be exclusively liable for all costs associated with shipping and delivery including without limitation, freight, shipping, customs charges and expenses, cost of special packaging or handling and insurance premiums incurred by Nozomi Networks in connection with the shipment of Appliances to End User. At its discretion, Nozomi Networks may advance shipping charges on behalf of End User on Appliances shipped to End User, and End User agrees to reimburse Nozomi Networks for any such advanced charges and expenses.
a. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Discloser”) disclosed to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the Products, their performance (including any benchmarking information) and Nozomi Networks’ pricing of the Products and Services. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) was independently developed by the Recipient without breach of any obligation owed to the Discloser; or (iv) is received from a third party without breach of any obligation owed to the Discloser.
b. The Recipient agrees that it will (i) use Confidential Information for the sole purpose of exercising its rights and performing its obligations under this Agreement, (ii) divulge Confidential Information only to those of its employees, directors, independent consultants or agents who have a need to know such Confidential Information and who are bound by professional duty or in writing (in advance) to confidentiality and non-use obligations at least as protective of such information as this Agreement, and (iii) not disclose any Confidential Information to any third party. The Recipient shall notify and cooperate with the Discloser immediately upon discovery of any unauthorized use or disclosure of Confidential Information of the Discloser. The Recipient may disclose Confidential Information to comply with an order from a court of competent jurisdiction or with a mandatory requirement of a governing regulatory body, provided such party, to the extent permitted by law and as soon as reasonably practicable under the circumstances, informs the Discloser and allows the Discloser the opportunity to object to the disclosure order or to take action to preserve the confidentiality of the information. The Recipient shall cooperate with the Discloser in such party’s reasonable efforts to limit the disclosure of the information. End User acknowledges, understands and agrees that Nozomi Networks may, as part of its provision of the Product and/or Services to End User, collect, store and use information obtained from End User, including, but not limited to, information about End User’s users and End User (“Information”) for the purposes of the provision of the Product, Services and other services to End User and may use such information for analysis and improvement of Nozomi Networks’ products and services. End User represents and warrants that it has all rights and permissions necessary to transfer such Information and grant Nozomi Networks access to such Information as contemplated herein.
c. Upon termination of this Agreement for any or no reason, the Recipient shall (i) immediately cease all use of the Discloser’s Confidential Information, (ii) at the instruction of the Discloser, either promptly destroy all Confidential Information of the Discloser or return all Confidential Information of the Discloser.d. If the Recipient discloses or uses (or threatens to disclose or use) any Confidential Information of the Discloser in breach of this Section 8, the Discloser shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Professional Services, if any, to be provided by Nozomi Networks to an End User will be subject to Nozomi Networks Professional Services Terms and Conditions available at: https://www.nozominetworks.com/privacy-legal-notices/professional-services-terms-conditions/ and a separate written statement of work (“SOW”).
EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED HEREIN, THE PRODUCTS AND SERVICES ARE OFF-THE-SHELF AND ARE NOT CUSTOMIZED SOLUTIONS DEVELOPED SPECIFICALLY FOR ANY SPECIFIC END USER OR INDUSTRY. EXCEPT FOR THE LIMITED WARRANTY FOR PURCHASED OR LICENSED PRODUCTS SPECIFIED IN SECTION 4 ABOVE, THE PRODUCT AND SOFTWARE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY, IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, OR WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF ANY IMPLIED WARRANTY CANNOT BE DISCLAIMED IN ANY TERRITORY WHERE A PRODUCT IS SOLD, THE DURATION OF SUCH IMPLIED WARRANTY SHALL BE LIMITED TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL SHIPMENT FROM NOZOMI NETWORKS. EXCEPT AS EXPRESSLY COVERED UNDER THE LIMITED WARRANTY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE OF THE PRODUCT IS WITH THE PURCHASER OR LICENSEE OF THE PRODUCT. END USER HEREBY ACKNOWLEDGE AND AGREE THAT NO VENDOR CAN ASSURE COMPLETE SECURITY AND NOTHING HEREIN OR ELSEWHERE SHALL BE DEEMED TO IMPLY A SECURITY GUARANTEE OR ASSURANCE.The warranties in Section 4 (a) through (b) above do not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Nozomi Networks or its authorized representative; (b) has not been installed, operated, repaired, updated to the latest version, or maintained in accordance with instructions or Documentation supplied by Nozomi Networks; (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; (d) is licensed for evaluation, testing or demonstration purposes or for which Nozomi Networks does not charge a purchase price or license fee. In the case of evaluation, testing, evaluation, or free Software or Product, the End User acknowledges and agrees that such Software or Product may contain bugs or errors and could cause system failures, data loss and other issues, and the End User agrees that such Software or Product is provided “as-is” without any warranty whatsoever, and Nozomi Networks disclaims any warranty or liability whatsoever.
a. The term of this EULA commences upon Delivery of the Products to End User and will remain effective for such time as End User continues to have the right to access the Software, Subscription, or other Products or until the expiration of the applicable license or subscription term. Term based licenses shall remain effective for the duration or length of term stated on a purchase order. Subscriptions for any SaaS services, other subscription-based products and/or services, and Support for any Software and/or Appliances will automatically renew at the end of the applicable Support term unless either party give the other at least thirty (30) days’ written notice of non-renewal prior to the end of the current term. Upon the renewal of a term or subscription period of any Term License, Subscription Product or Service, and/or Support/Maintenance, Nozomi Networks may increase renewal Fees at least 5% over the previous term or periods’ Fees for any such Product, Service and/or separately provided Support/Maintenance related to any hardware or virtual appliance, perpetual software, and/or other unbundled solutions. End User may terminate the EULA at any time by ceasing use of or destroying all copies of Software.
b. This EULA and any licenses granted and/or Services (including Support) hereunder will immediately terminate if End User breach its terms, or if End User fail to pay any portion of the applicable license fees directly to Nozomi or Partner and End User fails to cure that payment breach within thirty (30) days of from the date of a written notice issued to End User by Nozomi Networks. Upon termination of this EULA, End User shall destroy all copies of Software in End User’s possession or control. Nozomi Networks may terminate this Agreement and/or all licenses granted to End User hereunder immediately upon written notice to End User if End User breaches any provision of Section 2 (License Grant), Section 3 (Limitations on Use) or Section 8 (Confidentiality).
This Agreement will be governed in all respects by the laws of the State of California, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California for resolution of any disputes arising out or relating to this Agreement.
The Products and Services are passive solutions and function only as an OT/IOT security monitoring device as part of and in connection with a cybersecurity framework operated and managed by End User. THEREFORE SUBJECT TO EACH PARTY’S INDEMNITY OBLIGATIONS BELOW IN SECTION 15, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOZOMI NETWORKS IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF ANY PRODUCT OR SERVICE OR ANY DAMAGES OF ANY KIND WHATSOEVER, WHETHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFIT, LOSS OF OPPORTUNITY, LOSS OR DAMAGE RELATED TO USE OF THE PRODUCT OR SERVICE IN CONNECTION WITH HIGH RISK ACTIVITIES, DE-INSTALLATION AND INSTALLATION FEES AND COSTS, DAMAGE TO PERSONAL OR REAL PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFECTION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON, OR INTEGRATED WITH ANY PRODUCT INCLUDING ANY PRODUCT RETURNED TO NOZOMI NETWORKS FOR WARRANTY SERVICE) RESULTING FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THE LIMITED WARRANTY IN SECTION 4 ABOVE, EVEN IF NOZOMI NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NOZOMI EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY END USER TO NOZOMI NETWORKS IN THE 12 MONTHS PRECEDING THE CLAIM FOR THE SPECIFIC PRODUCT OR SERVICE THAT DIRECTLY CAUSED THE DAMAGE. THE SOLE REMEDY FOR A BREACH OF THE LIMITED WARRANTY IS REPAIR, REPLACEMENT OR REFUND OF THE DEFECTIVE OR NON- CONFORMING PRODUCT AS SPECIFICALLY STATED IN SECTION 4 ABOVE.
Nozomi Networks shall indemnify, defend and hold End User harmless against any and all liabilities, losses, settlement costs, fines, penalties, damages, judgments, costs and expenses, including reasonable attorneys’ fees and costs (collectively, “Losses”) actually awarded by a court of competent jurisdiction arising from or in connection with any claim, demand, suit, cause of action or legal proceeding (each, a “Claim”) brought by a third party alleging that the Hardware or the Software or the use thereof according to this Agreement and any user documentation infringes any intellectual property right of a third party. If Hardware or Software, or any part thereof, is or may be held to infringe third party’s rights and its use is or may be enjoined, Nozomi Networks shall, at its option and expense: (i) procure for End User the right to continue using the Hardware or the Software, (ii) replace or modify the Hardware or the Software so they are non- infringing or, if neither (i) nor (ii) is reasonably practicable, (iii) accept return of the applicable Hardware or Software and refund to End User the amounts paid for such Hardware and/or Software less depreciation based on a 5-year straight-line depreciation schedule. Nozomi Networks shall have no indemnity obligation to End User under this Section 15 if the Claim results from: (i) Nozomi Networks’ compliance with End User’s designs, specifications or instructions, (ii) modification of the Hardware or the Software by End User or a third party, (iii) use of the Hardware or Software in a manner not authorized or intended by Nozomi Networks, or (iv) the combination, operation or use of the Hardware or the Software with products or items not furnished by Nozomi Networks (collectively, the “Excluded Activities”). NOZOMI NETWORKS’ OBLIGATIONS IN THIS SECTION 15 SHALL BE SOLE AND EXCLUSIVE LIABILITY TO END USER, AND END USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INVOLVING THE PRODUCTS.End User shall indemnify, defend, and hold Nozomi Networks harmless from and against any and all Losses actually awarded by a court of competent jurisdiction arising from or in connection with any Claim brought by a third party arising from (a) End User’s breach of Sections 2, 3, and 16 or (b) any Excluded Activities.A party seeking indemnification will provide the indemnifying party with prompt written notice of the relevant claim (provided that the failure to provide prompt notice will only relieve the indemnifying party of its obligations to the extent it is materially prejudiced by such failure) and permit the indemnifying party to control the defense, settlement or compromise of such claim. The indemnified party may employ counsel at its own expense to assist it with respect to such claim; provided, however, that if such counsel is necessary because the indemnifying party does not assume control, the indemnifying party will be responsible for the expense of such counsel. The party not controlling such defense may participate at its own expense. The party controlling such defense shall keep the other party advised of the status of such claim and the defense thereof. Neither party shall have authority to settle any claim on behalf of the other.
End User is advised that the Products may be subject to the United States Export Administration Regulations and other import and export laws; diversion contrary to United States law and regulation is prohibited. End User agrees to comply with all applicable international and national laws that apply to the Products as well as End User, end-use, and destination restrictions issued by U.S. and other governments. For additional information on U.S. export controls see www.bis.doc.gov. Nozomi Networks assumes no responsibility or liability for End User’s failure to obtain any necessary import and export approvals, and Nozomi Networks reserves the right to terminate or suspend shipments, services and support in the event Nozomi Networks has a reasonable basis to suspect any import or export violation. End User represents that neither the United States Bureau of Industry and Security nor any other governmental agency has issued sanctions against End User or otherwise suspended, revoked, or denied End User export privileges. End User agrees not to use or transfer the Products for any use relating to nuclear, chemical, or biological weapons, or missile technology, unless authorized by the United States Government by regulation or specific written license. Additionally, End User agrees not to directly or indirectly export, import, or transmit the Products contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. Furthermore, End User represents that End User understands, and End User hereby agrees to comply with, all requirements of the U.S. Foreign Corrupt Practices Act and all other applicable laws. End User represents and warrants the Products and/or Services are not being received for the benefit of, and are not being transferred to, any government entity, representative or affiliate.
The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement and its successors.
Sections 2, 3, 8, 9, 10, 11, 13-16, 18-21 shall survive the termination of this Agreement for any reason.
The parties are independent contractors under this Agreement and nothing in this Agreement authorizes a party to act as an agent of the other or bind the other to any transaction or agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or transfer this Agreement in whole or in part by operation of law or otherwise, without the other party’s prior written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void. Notwithstanding the foregoing, however, Nozomi Networks may assign this Agreement without consent to the acquiring or surviving entity in a merger or acquisition in which Nozomi Networks is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of Nozomi Networks’ assets. In the event any provision of this Agreement shall be determined to be invalid or unenforceable under law, all other provisions of this Agreement shall continue in full force and effect. Except as specifically provided in this Agreement, the exercise by either party of any rights and remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. End User agrees not to assign this Agreement or transfer any of the rights or obligations under this Agreement without the prior written consent of Nozomi Networks. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. The United Nations Convention on Contracts for the International Sales of Goods is expressly excluded.Except as specifically provided in this Agreement, the exercise by either party of any rights and remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. This Agreement may be modified or waived only in a written instrument signed by both parties. Waiver of any breach under this Agreement shall not constitute a waiver or any other breach or future breaches. This Agreement and other Nozomi Networks agreements may be amended or supplemented only by a writing that refers explicitly to the agreement signed on behalf of both parties, or, for this Agreement. Notwithstanding anything to the contrary this Agreement may be amended or updated. Nozomi Networks shall not be bound by any additional and/or conflicting provisions in any order, acceptance, or other written correspondence (including a Customer or Authorized Partner purchase order) or other written or verbal communication unless expressly agreed to in a writing signed by an officer or an authorized representative of Nozomi Networks. No waiver will be implied from conduct or failure to enforce rights nor effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found unenforceable, that part will be enforced to the maximum extent permitted and the remainder shall continue in full force and effect. End User acknowledges it has read this Agreement, understands it, and agrees to be bound by all its terms and conditions.
Open-Source Software is licensed free of charge and without warranty. Except when otherwise stated in writing the copyright holders and/or other parties provide the program “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. In no event unless required by applicable law or agreed to in writing will any copyright holder, or any other party who may modify and/or redistribute the program be liable to end user for damages, including any general, special, incidental or consequential damages arising out of the use or inability to use the program (including but not limited to loss of data or data being rendered inaccurate or losses sustained by end user or third parties or a failure of the program to operate with any other programs), even if such holder or other party has been advised of the possibility of such damage.The Products may include Open-Source Software modules that are licensed (or sublicensed) to the user under the GNU General Public License, Version 2, of June 1991 (“GPL”) or GNU Lesser General Public License, Version 2.1, of February 1999 (“LGPL”) or other open source software licenses which, among other rights, permit the user to use, copy, modify and redistribute modules, or portions thereof, and may also require attribution disclosures and access to the source code. The GPL requires that for any Open-Source Software covered under the GPL, which is distributed to someone in an executable binary format, that the source code also be made available to those users. A list of Open-Source Software utilized or employed by the Products, may obtained by contacting Nozomi Networks’ Legal Department at: email@example.com. None of the Open-Source Software utilized by Nozomi Networks shall require End User to either disclose or make available its proprietary data or information to the public domain.
Nozomi Networks®, Nozomi rhombus logo®, Nozomi, Nozomi Networks Guardian™, Nozomi Networks Vantage™, and Nozomi Networks Arc™ are registered trademarks of Nozomi Networks Inc, or Affiliates, and other Nozomi names may also be trademarks, registered or otherwise, of Nozomi Networks Inc. All other product or company names may be trademarks of their respective owners. Copyright © 2017-2023 Nozomi Networks Inc, All Rights reserved. Contents and terms are subject to change by Nozomi Networks, Inc. without prior notice. No part of this publication may be reproduced in any form or by any means or used to make any derivative such as translation, transformation, or adaptation without permission from Nozomi Networks, Inc.