BY ACCESSING, OR USING THE CLOUD SERVICES, LICENSEE AGREES TO BE BOUND BY THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES SO ON BEHALF OF AN ENTITY, THAT INDIVIDUAL REPRESENTS THAT THEY HAVE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THIS AGREEMENT, LICENSEE MUST NOT ACCESS OR USE THE CLOUD SERVICES.

These Terms of Service for FireMon (“Agreement”) are a binding agreement between FireMon, LLC (“FireMon”), with offices at 8801 Renner Blvd., Suite 200, Lenexa, KS 66219, and the customer (Licensee”) accessing or using the cloud-based software services made available by FireMon as identified in Exhibit A (“Cloud Services”). This Agreement becomes effective on the date Licensee clicks to accept this Agreement, the date Licensee accesses or uses the Cloud Services (the “Effective Date”). If FireMon and Licensee have a separate written agreement that governs the use of the Cloud Services by Licensee, that agreement will control any conflicting terms.

1. Grant of Subscription Rights and Support

Subject to the terms and conditions of this Agreement and Licensee’s payment of any applicable fees as set forth in the applicable Order (“Fees”), FireMon grants to Licensee a limited, non-exclusive, non-transferable right during the applicable Subscription Term to access and use the applicable Cloud Services identified in Exhibit A, solely for Licensee’s own internal business purposes in accordance with this Agreement and the applicable documentation (the “Subscription”)

Subject to Licensee’s payment of applicable Fees for subscriptions that require payment of Fees as set forth in an Order (“Fee-based Subscriptions”), FireMon will provide standard support for the Cloud Services during the Subscription Term in accordance with FireMon’s then-current support policies.

2. Term and Termination

The subscription term for the Cloud Services shall be (i) as set forth in the applicable FireMon Quote and/or Purchase Order for Fee-based Subscriptions (hereinafter “Order”) or (ii) ongoing until terminated in accordance with this Agreement (in each case a “Subscription Term”). Unless otherwise specified in the applicable Order, the Subscription Term for any Fee-based Subscriptions will automatically renew for successive one (1) year periods unless either party provides written notice of non-renewal at least forty-five (45) days before the end of the then-current Subscription Term.

Either party may terminate this Agreement or any applicable Subscription for material breach by the other party if such breach remains uncured thirty (30) days after written notice thereof, except that FireMon may terminate Fee-based Subscriptions for Licensee’s failure to pay undisputed Fees if such failure remains uncured five (5) days after written notice.

Either party may terminate without cause any Subscription which is made available by FireMon for no Fee by providing the other party with five (5) days written notice.

Upon expiration or termination of a Subscription, Licensee shall cease all access to and use of the applicable Cloud Services, and each party shall comply with its return, deletion, and retention obligations under this Agreement.

3. Restrictions and Obligations

Licensee agrees to:

– Use the Cloud Services solely for Licensee’s own internal business purposes and in compliance with applicable law;

– Not making any unauthorized modifications to the Cloud Services or copies of any related documentation;

– Not decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Cloud Services;

– Not sublicense, rent, lease, assign, or otherwise transfer the Cloud Services;

– Protect the Cloud Services and its contents as Confidential Information;

– Prevent any unauthorized access, use, or disclosure of the Cloud Services; and

– Not use the Cloud Services to store, transmit, or process malicious code, to interfere with or disrupt the integrity or performance of the Cloud    Services, or to gain unauthorized access to the Cloud Services or related systems or networks.

4. Service Warranty; Disclaimer

FireMon warrants that during the applicable Subscription Term: (a) the Cloud Services will materially conform to the then-current documentation made available by FireMon; (b) FireMon will provide any support and related services in a professional and workmanlike manner using commercially reasonable care and skill; and (c) FireMon has the right to provide the Cloud Services under this Agreement. Licensee’s exclusive remedy and FireMon’s sole liability for breach of the foregoing warranty will be for FireMon to use commercially reasonable efforts to correct the non-conformity or re-perform the affected services and, if FireMon is unable to do so within a reasonable period, Licensee may terminate the Subscription for the affected Cloud Services and if the Cloud Services are subject to a Fee-based Subscription, receive a pro rata refund of prepaid Fees for the terminated portion of the then-current Subscription Term. THE FOREGOING WARRANTIES ARE IN ADDITION TO ANY NON-WAIVABLE RIGHTS LICENSEE MAY HAVE UNDER APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLOUD SERVICES AND ANY SERVICES ARE PROVIDED “AS IS.” FIREMON DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT LIMITS ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. FIREMON DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, BUT FIREMON WILL USE COMMERCIALLY REASONABLE EFFORTS TO MINIMIZE MATERIAL SERVICE INTERRUPTIONS.

5. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, FIREMON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS PAID OR PAYABLE BY LICENSEE TO FIREMON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT FOR THE APPLICABLE FEE-BASED SUBSRIPTIONS GIVING RISE TO LIABILITY OR (B) $1000 USD FOR ANY APPLICABLE SUBSCRIPTIONS PROVIDED AT NO FEE .

TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSEE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) TOTAL FEESPAID OR PAYABLE BY LICENSEE TO FIREMON FOR FEE-BASED SUBSCRIPTIONS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY OR (B) $10,000 USD FOR ANY APPLICABLE SUBSCRIPTIONS PROVIDED AT NO FEE.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, OR BUSINESS INTERRUPTION, OR LOSS, CORRUPTION, OR INACCURACY OF DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY ARISING OUT OF OR RELATING TO: (i) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (ii) LICENSEE’S PAYMENT OBLIGATIONS; (iii) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (iv) A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (v) LICENSEE’S VIOLATION OF THE USE RESTRICTIONS IN THIS AGREEMENT.

6. Export Control

Licensee shall comply with all applicable U.S. export control laws and regulations.

7. Proprietary Rights

7.1 FireMon and our licensors own all worldwide right, title and interest in the Cloud Services, including all related copyrights, trademarks, service marks, patents, trade secrets, know-how, moral rights and all other proprietary rights, including registrations, applications, renewals and extensions of such rights existing anywhere in the world, whether registered or unregistered (“Intellectual Property Rights”). The Cloud Services embody valuable trade secrets and constitute our Confidential Information. Except for the rights explicitly granted to Licensee in this Agreement, all right, title and interest in the Cloud Services are reserved and retained by FireMon and/or our licensors. Licensee does not acquire any intellectual property or other rights in the Cloud Services as a result of accessing or using the Cloud Services except as specified in this Agreement.

7.2 As between the parties, Licensee or Licensee’s licensors retain all rights, title and interest in and to data, content, and other information submitted by or on behalf of Licensee to the Cloud Services, including any personal data contained therein. Subject to this Agreement, Licensee grants FireMon the non-exclusive right to host, copy, transmit, display, process, and otherwise use such data solely as necessary to provide, secure, support, and improve the Cloud Services and to perform its obligations under this Agreement.

7.3 If Licensee chooses to give FireMon any ideas, suggestions, enhancement requests, recommendations or any other materials in connection with this Agreement or Cloud Services (collectively, “Feedback”), Licensee grants FireMon a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use, reproduce, modify, and otherwise exploit the Feedback without restriction or obligation to Licensee.

8. Confidential Information

8.1 Confidential Infor (d) is independently developed by the receiving party without reference to Confidential Information. Subject to applicable law, FireMon Confidential Information includes, but is not limited to, this Agreement, Cloud Services, trade secrets, know-how, Cloud Services roadmap, source code, software, Cloud Services and technology-related information, customer lists, financial information, sales, pricing information, marketing and business plans.

8.2 Treatment. Confidential Information shall remain the property of the Discloser. Each party shall have the right to use the other’s Confidential Information solely for the purpose of fulfilling its obligations or exercising its rights under this Agreement. Each party agrees: (a) to hold the other party’s Confidential Information in confidence for a period of three (3) years from the date of disclosure, except confidentiality obligations will continue indefinitely regarding Confidential Information considered as trade secrets under applicable law to the extent such Confidential Information remains a trade secret; and (b) to disclose the other party’s Confidential Information only to those employees, contractors, agents, or affiliates (meaning any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means ownership of more than 50% of the voting securities or other ownership interest) (“Affiliates”) and their employees or contractors on a need to know basis provided that they are required to protect such Confidential Information against unauthorized disclosure under terms no less restrictive than those specified herein. Recipient shall protect the Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own confidential or proprietary information of a similar nature, and in any event with at least a reasonable degree of care. Recipient may disclose the other party’s Confidential Information to the extent that such disclosure is required pursuant to a judicial or administrative proceeding, provided that, prior to such disclosure, Recipient gives Discloser prompt written notice thereof, unless prohibited by law, and the opportunity to seek a protective order or other legal remedies.

8.3 Return or Destruction. Upon termination of this Agreement or Discloser’s written request, all Confidential Information (including all copies thereof) of Discloser shall be returned or destroyed and Recipient shall provide written certification of such destruction, unless Recipient is required to retain such information by law or bona fide backup, archival, or record retention policies, in which case this Agreement will continue to protect such retained information. Recipient shall certify its compliance with this Section 8.3 upon request.

8.4 Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information may cause irreparable harm to the disclosing party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 8, without the necessity of posting any security. Recipient will notify Discloser in writing upon becoming aware of any unauthorized use or disclosure of Confidential Information.

8.5 Telemetry Data; Privacy and Data Protection. Licensee acknowledges that FireMon may collect and process technical and usage information generated by or through the Cloud Services (“Telemetry Data”) in connection with the provision, security, support, maintenance, and improvement of the Cloud Services. Telemetry Data may include system and performance data, user activity data, device identifiers, and online identifiers such as Internet Protocol addresses. To the extent FireMon processes personal data on behalf of Licensee in connection with the Cloud Services, FireMon will: (a) process such personal data only on documented instructions from Licensee as necessary to provide the Cloud Services, perform this Agreement, comply with applicable law, or as otherwise permitted by applicable data protection laws; (b) comply with applicable data protection laws with respect to such processing; (c) implement and maintain appropriate technical and organizational measures designed to protect personal data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, such personal data; (d) ensure that personnel authorized to process personal data are subject to appropriate confidentiality obligations; (e) notify Licensee without undue delay after becoming aware of a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data processed by FireMon on behalf of Licensee; (f) provide reasonable cooperation to assist Licensee in responding to requests from data subjects, regulators, or other competent authorities, taking into account the nature of the processing and the information available to FireMon; (g) upon termination or expiration of the Agreement, delete or return personal data in accordance with Licensee’s written instructions, unless retention is required by applicable law; and (h) require any permitted subprocessors that process personal data on FireMon’s behalf to be bound by data protection obligations no less protective than those set forth in this Agreement. Where required by applicable data protection laws for transfers of personal data, the parties will cooperate in good faith to implement appropriate transfer mechanisms. FireMon may also use Telemetry Data that has been de-identified and aggregated so that it does not identify Licensee or any individual for analytics, benchmarking, security, and product improvement purposes.

8.6 Aggregated Anonymous Data. FireMon shall own all rights, title and interest (including, without limitation, all Intellectual Property Rights) in and to data derived from the Cloud Services that has been aggregated and anonymized or de-identified so that such data does not identify Licensee or any individual and cannot reasonably be used to re-identify Licensee or any individual (“Aggregated Anonymous Data”). For the avoidance of doubt, FireMon may use, access, disclose, modify, and create derivative works of the Aggregated Anonymous Data for lawful internal business purposes, including, without limitation, to generate industry benchmarks and to develop, secure, support, and improve FireMon’s products and services.

8.7 Compliance Responsibilities. Each party shall comply with the data protection and privacy laws applicable to its performance under this Agreement. As between the parties, Licensee is responsible for providing all notices and obtaining all consents and other rights necessary for FireMon to lawfully process personal data on Licensee’s behalf in connection with the Cloud Services.

8.8 Subprocessors and International Processing. Licensee authorizes FireMon to engage subprocessors to support delivery of the Cloud Services, provided that FireMon remains responsible for their compliance with the applicable obligations of this Agreement. Licensee acknowledges that FireMon and its subprocessors may process personal data in the United States and other jurisdictions where FireMon or its subprocessors operate, subject to appropriate safeguards required by applicable data protection laws.

8.9 Security Information and Assistance. Upon Licensee’s written request, FireMon will make available reasonable information regarding its security practices relevant to the Cloud Services and, to the extent required by applicable data protection laws, provide reasonable assistance to enable Licensee to conduct any required data protection impact assessments or prior consultations, in each case taking into account the nature of the processing and the information available to FireMon.

9. Governing Law and Jurisdiction

9.1 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas, United States of America, without regard to its conflict of laws rules. The parties consent to the non-exclusive jurisdiction of the state and federal courts located in Johnson County, Kansas for any and all claims or disputes arising under this Agreement or in connection with the Cloud Services.

9.2 Exclusion. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

10. General

10.1 Third-Party and Open-Source Software. The Cloud Services may contain components of copyrighted third-party software or open-source software. Third party and open-source software that is provided in connection with the Cloud Services is included in the warranty, support and indemnification provisions applicable to the Cloud Services. Licensee’s internal use of open-source software included in the Cloud Services without modification and in compliance with this Agreement will not result in the imposition of “copyleft” obligations with respect to Licensee’s intellectual property.

10.2 Entire Agreement. This Agreement (including any documents expressly referenced herein, the terms of which are hereby incorporated by reference) sets forth the entire agreement and understanding between the parties pertaining to the subject matter hereof and merges all prior written or oral discussions between them.

10.3 Feedback. Licensee hereby acknowledges and agrees that any feedback, suggestions, or ideas provided by Licensee relating to the Cloud Services (‘Feedback’) may be used by FireMon without restriction or obligation to Licensee. To the extent Licensee holds any rights in such Feedback, Licensee grants FireMon a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use, modify, incorporate, and otherwise exploit such Feedback for any lawful purpose.

10.4 Modifications. Except as otherwise provided herein, FireMon may modify this Agreement from time to time by posting an updated version or otherwise providing notice to Licensee. Any such modification will apply prospectively upon Licensee’s renewal of a Subscription Term or purchase of additional Subscriptions after the updated Agreement is posted or notice is given; provided, however, that any modification that materially and adversely affects Licensee’s rights or obligations during a then-current paid Subscription Term will not become effective for that Subscription Term unless Licensee affirmatively accepts the modified Agreement. Any terms and conditions in any purchase order or other correspondence submitted by Licensee that purport to differ from or vary these terms are rejected and shall have no force or effect unless expressly agreed by FireMon in writing.

10.5 Serverability. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. In the event such provision cannot be reformed to make it enforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such unenforceable provision shall be deemed not to be part of this Agreement.

10.6 Assignment. Neither party may assign this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign this Agreement without such consent in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets or business to which this Agreement relates. Any permitted assignee shall be bound by this Agreement. Any assignment in violation of Section 10.6 shall be void.

10.7 No Waiver. Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement.

10.8 Force Majeure. Neither party will be liable for failure to fulfill its obligations hereunder to the extent such failure is due to causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, pandemics, epidemics, or strikes, work stoppages or other labor difficulties; provided that the affected party uses commercially reasonable efforts to mitigate the effects of the event and resume performance as soon as reasonably practicable. This Section does not excuse Licensee’s obligation to pay for Cloud Services provided before the force majeure event.

10.9 Parties Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement. The parties remain independent contractors and have no power or authority to bind the other or to create any obligation or responsibility on behalf of the other party. Under no circumstances will any employee of one party be deemed to be the employee of the other for any purpose.

10.10 Non-exclusive Dealings. Each party acknowledges and agrees that the rights granted to the other party in this Agreement are nonexclusive and that without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

10.11 Headings, In this Agreement: (a) any headings are for reference purposes only and shall not be used in the construction and interpretation of this Agreement; (b) the singular number shall include the plural, the plural number shall include the singular; (c) if a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb); (d) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; (e) any monetary amount is in U.S. dollars; and (f) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement. English (as commonly interpreted in the United States) will be the language used in all written communications between the parties pursuant to this Agreement, including all notices, reports, reviews, consents, authorizations, and approvals under this Agreement.

10.12 Notices. All notices required or permitted to be given pursuant to this Agreement shall be given in writing and will be effective upon receipt if delivered personally, by electronic mail, through the Cloud Services or Licensee’s account portal, by overnight courier, or by registered or certified United States mail, postage prepaid. FireMon may provide notices to Licensee using the contact information associated with Licensee’s account.

 

EXHIBIT A

CLOUD SERVICES AVAILABLE FROM FIREMON

• FIREMON INSIGHTS