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Professional Services Terms & Conditions

By ordering Professional Services (“Services”) from Nozomi Networks Inc. (“Nozomi Networks”), the customer (“Customer”) agrees to be bound by these Terms and Conditions (“T&C’S”). Such Services are delivered by Nozomi Networks or by one or more of its affiliated entities in accordance with the Statement of Work, which will form a part of this Agreement, and will be subject to the terms and conditions contained herein.

1. Professional Services; Statements of Work (“SOWs”).

Customer engages Nozomi Networks to provide consulting, training, and other professional services (the “Professional Services“) set forth on Statements of Work or Agreements executed by both parties or orders for standard packaged offerings (“SOWs”), each of which shall contain, at a minimum, a reasonably detailed description of the Professional Services to be performed and the fees therefor. Each SOW shall be incorporated into and shall form a part of these T&C’S. In the event of a conflict between the provisions of these T&C’S and a SOW, the relevant provisions of the SOW shall prevail.

2. Performance of Professional Services.

Unless otherwise specified on a SOW, all Professional Services shall be performed at Nozomi Networks premises. For Professional Services performed at Customer’s premises, Customer shall (a) provide Nozomi Networks personnel with reasonable office space and necessary access to hardware and other systems and (b) comply in all material respects with applicable laws relating to the treatment of Nozomi Networks personnel who are on Customer’s premises.

3. No Hardware or Licenses to Software.

These T&C’s govern only the provision of Professional Services. Any hardware, software, and/or subscription services, including maintenance and support to be provided by Nozomi Networks to Customer shall be governed by a separate T&C’s.

4. Fees, Taxes and Expenses.

(a) In consideration of the Professional Services, Customer will pay Nozomi Networks (or Nozomi Network’s authorized reseller), in U.S. dollars (unless otherwise quoted in a different currency in either a SOW or a separate quote), the fees set forth in each SOW. Nozomi Network’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on Nozomi Network’s income. If Nozomi Networks has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Nozomi Networks with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to reimburse Nozomi Networks for its reasonable out-of-pocket expenses and costs, including travel and lodging incurred in connection with providing the Professional Services under any SOW (“Expenses”).

(b) Customer and Nozomi Networks will schedule a mutually agreed time for Professional Services delivery. If Customer cancels or postpones such time for any reason without providing Nozomi Networks at least fifteen (15) business days advance written notice, if such notice is not provided in accordance with this Section, then Customer will be responsible for the Professional Services fees as follows: (i) written notice is received by Nozomi Networks between ten (10) and one (1) business day before the scheduled commencement of the Services, then Customer shall pay fifty percent (50%) of the fees for the cancelled and/or rescheduled Services; (ii) Written notice is received by Nozomi Networks on the scheduled day of Services or Customer is not available or present (no show) on the scheduled day of Services, then Customer shall pay one hundred percent (100%) of the fees for the cancelled and/or rescheduled Service. In addition, Professional Services must be utilized within twelve (12) months from the purchase date and, if not so utilized, Nozomi Networks will have no obligation to provide such Professional Services and Customer will not be entitled to a refund of any amounts relating thereto.

5. Payment Terms.

This Section 5 applies only to engagements where Customer issues a purchase order directly to Nozomi Networks. Nozomi Networks will invoice Customer for Professional Services for the fees set forth in the SOW and all Expenses at actual cost.  Customer shall pay invoices within thirty (30) days of the date of invoice.  Amounts that remain unpaid as of the applicable due date shall accrue interest at the lesser of one and a half percent (1.5%) per month or the maximum rate allowed under applicable law. In addition to any other rights and remedies that Nozomi Networks may have, in the event that Customer’s payments are more than thirty (30) days past due, Nozomi Networks may cease providing the applicable Professional Services until such time as Customer’s account is paid in full.

6. Confidentiality.

(a) As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), 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 shall not include any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

(b) The Receiving Party agrees that it will (i) use Confidential Information for the sole purpose of exercising its rights and performing its obligations under these T&C’s , (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 these T&C’S, and (iii) not disclose any Confidential Information to any third party. The Receiving Party shall notify and cooperate with the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information of the Disclosing Party.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  Notwithstanding the foregoing, Customer acknowledges and agrees that Nozomi Networks will, as part of its provision of the Professional Services to Customer, collect, store and use information obtained from Customer, including, but not limited to, information about Customer’s users and customers (“Information”) for the purposes of (i) providing the Professional Services to Customer and (ii) analyzing and improving Nozomi Network’s products and services.  Customer represents and warrants that Customer has all rights and permissions necessary to grant Nozomi Networks access to such Information.

(c) Upon termination of these T&C’S for any or no reason, the Receiving Party shall (i) immediately cease all use of the Disclosing Party’s Confidential Information and (ii) upon request from the Disclosing Party, either return or destroy all Confidential Information of the Disclosing Party.

(d) If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party 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.

7. Proprietary Rights.

(a) Customer shall solely own all right, title and interest in and to its Confidential Information. Nozomi Networks shall solely own all worldwide right, title and interest in and to its Confidential Information and the Deliverables.

(b) Customer will, subject to the terms of these T&C’S, have a perpetual, worldwide, non-transferable, non-sublicensable, non-exclusive license to use any Deliverables delivered as part of the Professional Services.

(c) Notwithstanding any other provision of these T&C’S: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Nozomi Networks to develop the Deliverables, and (ii) the term “Deliverables” shall not include the Tools. To the extent necessary to use the Deliverables, Tools that are delivered with or as part of the Deliverables, are licensed, not assigned, to Customer, on the same terms as the Deliverables.  As used herein, “Deliverables” shall mean any configurations, reports, and/or written documentation generated for Customer in connection with the performance of the Professional Services.

8. Warranty and Disclaimer.

(a) Nozomi Networks warrants that the Professional Services shall be performed in a professional and workmanlike manner. In the event of a breach of the foregoing warranty, Nozomi Networks shall at its sole option and expense, either: (i) re-perform the applicable Professional Services in a manner that is compliant with such warranty, or (ii) in the event Nozomi Networks is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable SOWs and upon such termination, Nozomi Networks shall promptly refund Customer all fees paid for the non-compliant Professional Services. The rights and remedies granted Customer under this Section 8(a) state Nozomi Network’s entire liability, and Customer’s exclusive remedy, with respect to any breach of the warranty set forth in this Section 8(a).

(b) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(a), NOZOMI NETWORKS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NOZOMI NETWORKS HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Limitations of Liability.

(a) IN NO EVENT WILL EITHER PARTY’S (AND ITS SUPPLIERS’) LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS TO BE PAID UNDER THE SPECIFIC SOW OR SOWS AT ISSUE.

(b) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

(c) The limitations and exclusions on liability set forth in Sections 9(a) and 9(b) above shall not apply to damages arising from a breach of a party’s obligations of confidentiality under Section 6.

10. Term and Termination.

(a) These T&C’s shall commence on the date of the engagement set forth in an SOW and shall remain in effect until terminated in accordance with the terms of these T&C’s.  Either party may terminate these T&C’s upon sixty (60) days advance written notice to the other party; provided, if there is a SOW for which the parties have obligations that extend beyond such termination date, the terms of these T&C’s shall continue to apply until all obligations have been satisfied or until terminated in accordance with section 10(b).

(b) Either party may terminate these T&C’s or any SOW hereunder immediately upon written notice (i) if the other party fails to perform its material obligations under these T&C’s or any SOW and such failure is not corrected within thirty (30) days of written notice of the breach from the non-breaching party; or (ii) in the event the other party breaches any of its obligations of confidentiality as set forth in Section 6. In addition, Nozomi Networks may terminate these T&C’s or any SOW hereunder in the event Customer is more than thirty (30) days past due in its payments to Nozomi Networks.

(c) In addition to any payment obligations due by either party to the other party hereunder, the following sections shall survive termination of these T&C’s for any or no reason: Sections 4, 5, 6, 7, 8(b), 9, 10(c) and 12.

11. Subcontractors.

Customer acknowledges that Nozomi Networks may either perform the Services directly using Nozomi Networks personnel, or in whole or in part, through any of its affiliates, subsidiaries or parent companies in its group, or a local subcontractor on its behalf.

12. Miscellaneous Provisions.

(a) The parties are independent contractors under these T&C’s and nothing in these T&C’s authorizes a party to act as an agent of the other or bind the other to any transaction or T&C’s.

(b) These T&C’s will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or transfer these T&C’s 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 these T&C’s without such written consent will be null and void.  Notwithstanding the foregoing, however, either party may assign these T&C’s without consent to the acquiring or surviving entity in a merger or acquisition in which such party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of such party’s assets.

(c) Throughout the term of these T&C’s, Nozomi Networks will maintain the following minimum amounts of insurance: (i) workers’ compensation at statutory minimums and employers liability with $1,000,000 each accident, (ii) commercial general liability with a minimum of $1,000,000 per occurrence and $2,000,000 general aggregate; (iii) automobile liability for all hired and non-owned automobiles with $1,000,000 combined single limit; and (iv) errors and omissions (E&O) coverage at $5,000,000 policy aggregate.  A certificate of insurance evidencing the above will be presented to Customer upon Customer’s written request.

(d) All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) two (2) days after it is sent if by overnight delivery by a major commercial delivery service. Either party may by like notice specify or change an address to which notices and communications shall thereafter be sent.

(e) Neither party will be liable to the other for any delay or failure to perform any obligation under these T&C’s (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the date in which  these T&C’s are entered into and 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.

(f) These T&C’s will be interpreted and construed in accordance with the laws of the State of California, without regard to conflict of law principles. 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 these T&C’s.

(g) In the event any provision of these T&C’s shall be determined to be invalid or unenforceable under law, all other provisions of these T&C’s shall continue in full force and effect.  These T&C’s, together with any SOW executed hereunder, contains the entire T&C’S of the parties with respect to the subject matter of these T&C’s and supersedes all previous communications, representations, understandings and T&C’s, either oral or written between the parties with respect to said subject matter. Any additional or inconsistent terms on any purchase order, invoice, or any form of communication shall be null and void.  These T&C’s and any SOW may be modified or waived only in a written instrument signed by both parties. A waiver of any breach under these T&C’s shall not constitute a waiver or any other breach or future breaches. These T&C’s may be executed in counterparts and by facsimile, each of which will constitute an original and together shall constitute one instrument.