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Last Updated: July 26, 2024
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 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, UNLESS OTHERWISE EXPRESSLY AGREED TO AND SIGNED BY BOTH PARTIES.
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.”
The following capitalized terms shall have the meanings set forth below:
1.1 “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.
1.2 “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 Hardware, when the Hardware has been tendered by Nozomi Networks for shipment in accordance with Incoterms Ex Works shipping terms.
1.3 “Documentation” means Nozomi Networks' technical specifications that accompany and describe the installation, use, and operation of a Product.
1.4 “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 or authorized Managed Services Provider. The Products ordered through an Authorized Partner (defined below) are licensed directly to the End User subject to the terms and conditions herein.
1.5 “Hardware” means the physical Nozom Networks branded hardware on which the Software operates.
1.6 “Nozomi Networks Vantage” or “Nozomi Networks Vantage Cloud Service” refers to a global cloud-based SaaS solution which works in conjunction with an installed base of one or multiple sensors (Guardian / CMC) Appliances, Guardian virtual instances, and Arc endpoint sensors (if purchased). Vantage unifies the management of multiple sensor deployments into a single web interface and provides global visibility, vulnerability reports, and detection of cyber threats in the Customer OT and IoT networks.
1.7 "Order” means either a signed Nozomi Networks quotation and/or Purchase Order. A Purchase Order shall reference a Nozomi Networks quotation number and identify the agreed-upon Products and Services to be purchased, mutually agreed-upon pricing arrangements, license period, and other terms and conditions as may be mutually agreed upon by the “Parties.”
1.8 “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:
1.9 “Products” means the Nozomi Networks branded Hardware, Software, or Subscription Services.
1.10 “Professional Services” means the installation, configuration, and training services that Nozomi Networks may provide to an End User.
1.11 “Services” means Professional Services or Support.
1.12 “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 Hardware or on a standalone basis. The term “Software” does not include Open-Source Software, which is further described in Section 21 below.
1.13 “Subscription Services” means the subscription services, SaaS services, term software license, and hardware/software term license bundles, including content updates and upgrades thereto, made available to End User by Nozomi Networks directly or through its partners and suppliers. Subscription Services include, without limitation, 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.
1.14 “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.
2.1 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, non-transferable, irrevocable (provided End User complies with these terms and conditions), without the right of sublicense, to execute the Software (in object code format ("License"). Such License shall be limited to 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).
2.2 Nozomi Networks Vantage (“Vantage”) or “Nozomi Vantage Service Subscription” is presented as a web portal and designed for self-management by the customer, which includes an easy application programming interface (“API”), integration of sensor deployments with Vantage, the integration of Security Assertion Markup Language (“SAML”)-based Single Sign-On (“SSO”) and certificate authorities for enterprise customers. The service is available in multiple geographic regions with customer selectable data storage locations. It is a subscription which entitles Authorized Users to access and use Nozomi Networks Vantage and the related documentation in accordance with this Agreement. In either case, access to Vantage is granted to End User for the term (“Subscription Term”) identified in a purchase order or other ordering document and in accordance with these terms and conditions, any Documentation supplied by Nozomi Networks and solely for End User’s and its Affiliate’s internal business purposes, Nozomi Networks grants End User a non-exclusive, non-transferable, non-sublicensable, revocable right to use and access the Subscription Services. For the duration of a Subscription Term, Subscription Services shall also include Nozomi Networks premium (24x7) support. Such support services are governed by Nozomi Networks Support Terms and Conditions (https://www.nozominetworks.com/legal/customer-support-terms-and-conditions), the Nozomi Networks Support Global Data Sheet: (https://www.nozominetworks.com/resources/data-sheet/global-customer-support/) and the Terms of Use and Service Level Agreement available at: (https://www.nozominetworks.com/legal/vantage-tsla).
End User is solely responsible for acquiring and maintaining all the equipment, software, services, and items necessary to access and make use of the Subscription Services, including, without limitation, paying all fees, charges, taxes, and other costs related to internet access, and for configuration changes that may be required to route activity to the Products.In addition, Vantage services interoperate with third-party services (e.g., Amazon Web Services or “Third-Party Services”) and depend on continuing availability of and access to such Third-Party Services, including application programming interfaces. The third-party services may collect certain usage analytics to enhance Vantage functionality. End User is not required to purchase or use such third-party services for Vantage to function and may opt out of such usage. Additional details and information are provided for in the Vantage TSLA as well as by those third-party services. If, for any reason, a Third-Party Service ceases to be available on reasonable terms, then Nozomi Networks may be unable to continue to provide all the functions of its Vantage services. If a Third-Party Service for which End User has purchased services becomes permanently unavailable for interoperation with the services (other than as a result of an act or omission of End User), then End User may terminate the affected Orders and Nozomi Networks will refund to End User any prepaid and unused fees for such Orders.
2.3 Nozomi Networks Arc™ and Other Subscription Services or Add-Ons. 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-premises Guardian installation or cloud Vantage instance. Arc may be installed on any machine and licenses may be reused forEnd User’s and its own Affiliates’ internal business purposes, provided EndUser 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.
3.1 Limitation on Use. End User may not:
3.2 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.
3.3 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:
4.1 Hardware with Embedded Software. End User acknowledges that the Software included with Hardware is licensed and not sold. Although Hardware is owned by the End User, the embedded Software is licensed solely in conjunction with Hardware (and not separately or apart from Hardware). If End User sells, leases, lends, rents, distributes, or otherwise transfers any Hardware to any third party or if Nozomi Networks terminates this Agreement for a violation of applicable law and/or regulation or for a material breach of this Agreement or breach of the Licenses in Section 2, then End User will erase all Software from the Hardware.
4.2 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, Hardware shall be owned by the End User and does not need to be returned. Hardware 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 Hardware. 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.
4.3 Nozomi Networks Guardian Air. Nozomi Networks Guardian Air (“NN Guardian Air”) is a wireless sensor hardware device that monitors wireless connected devices in OT and IOT environments and requires a Vantage subscription to function. NN Guardian Air only monitors wireless assets, frequencies, and protocols. It does not collect any Personal Identifiable Information or other sensitive data from wireless devices. A Guardian Air sensor is owned by the End User; however, any embedded software is licensed to the End User and not sold. If End User sells, leases, lends, rents, distributes, or otherwise transfers the Guardian Air Hardware 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 Guardian Air Hardware.
4.4 Guardian Compliance with Union General Export Authorization EU001
4.4.1. End User acknowledges and understands that Guardian Air is classified as a dual-use item for the purposes of Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit, and transfer of dual-use items (recast) (the “EU Dual-Use Regulation”), the export of which is controlled and subject to the requirement for export authorization in accordance with the EU Dual-Use Regulation.
4.4.2. End User acknowledges and understands that export of Guardian Air is done on the basis of Union General Export Authorization No EU001 set out in Annex II to the EU Dual-Use Regulation (“UGEA EU001”). Accordingly, the End User commits to ensuring that any and all further activities undertaken in relation to Guardian Air, whether by the End User or any other third party, are in strict compliance with UGEA EU001 and that Guardian Air remains subject to UGEA EU001.
4.4.3. In particular, End User shall ensure that Guardian Air is not in any way:
4.4.4. End User shall be responsible for ensuring compliance with UGEA EU001 and any other third party in relation to Guardian Air and shall set up and maintain an appropriate monitoring mechanism for this purpose.
4.4.5. End User shall provide accurate and complete information and documentation that is requested by Nozomi Networks for the purposes of monitoring ongoing compliance with UGEA EU001 in relation to Guardian Air.
4.4.6. In the event that End User sells, transfers, or otherwise disposes of or makes Guardian Air available for end-use to a third party that is not the original purchaser or end user, then End User shall notify Nozomi Networks of such and shall share accurate and complete information with respect to the identity and location of that end-user of Guardian Air, the end-use of Guardian Air, and the details of any transaction relating to Guardian Air, including but not limited to invoices, contracts, purchase orders, and end-user statements as soon as possible after this becomes available to the End User.
4.4.7. The End User shall inform Nozomi Networks without delay if it becomes aware of or suspects potential non-compliance by the end-user or any other third party with UGEA EU001 in relation to Guardian Air.
4.4.8. Any failure by the End User to strictly comply with this Section shall be a material breach of this Agreement. In the event that Nozomi Networks considers that such a material breach has occurred or is likely to occur, Networks may terminate this Agreement in whole or in part, effective immediately by written notice and shall be discharged from any and all liability or obligations to the End User.
4.4.9. The End User shall indemnify Nozomi Networks against all claims by third parties in relation to a failure by the End User to strictly comply with this Section and shall furthermore compensate Nozomi Networks for any damages incurred in connection with this.
Nozomi Networks provides a limited warranty for its Product(s) only to an End User identified as the original licensee of the Products and/or Services from Nozomi Networks. Warranties provide the repair and/or replacement of Products affected by manufacturing defects. The Product Warranties are generally limited in both duration and the support they offer. Nozomi Networks or its designated representative will repair or replace the warranted Product(s) as further described below.
5.1 Hardware. Except in the European Union or European Economic Community and subject to applicable laws in such region, Nozomi Networks warrants its Hardware for a period not to exceed twelve (12) months following receipt by End User (the “Warranty Period”). During the Warranty Period, Nozomi Networks warrants that the Hardware is free from material defects in manufacture and materials. However, Nozomi Networks is not liable for defects in the Hardware notified by End User after expiration of the Warranty Period. Further, this Warranty does not apply to Hardware for malfunctions attributable to extrinsic causes such as:
i. RMA Replacement. The Hardware warranty includes replacement or repair for Hardware provided the product is either still under the Warranty Period or End User maintains either a valid and current Nozomi Networks Support contract or purchased an applicable bundled 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 warranty but can be reworked (new label, erasure of all data), Nozomi Networks 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 will be at Nozomi Networks’ or its service centers’ option either shipment of a replacement at a cost to be quoted by Nozomi Networks or provision of a cost estimate to repair the Hardware. 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.
5.2 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.
5.3 Limitations on Warranties. The warranties 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; therefore, 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.
6.1 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.
6.2 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:
6.3 Additional Evaluation Terms. Except for Nozomi Networks' indemnity obligation below in Section 16 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 8 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.
8.1 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; and (b) fees for other Software licenses and Hardware 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.
8.2 Delivery. For orders placed by End User directly with Nozomi Networks, Nozomi Networks will use commercially reasonable efforts to ship the Hardware 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 Hardware and risk of loss shall pass to End User upon Delivery, and Products shall be deemed accepted by End User upon Delivery. Purchased Hardware shall be delivered Incoterms 2020 Ex Works (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 Hardware to End User. At its discretion, Nozomi Networks may advance shipping charges on behalf of End User on Hardware shipped to End User, and End User agrees to reimburse Nozomi Networks for any such advanced charges and expenses.
9.1 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,
9.2 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.
9.3 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.
9.4 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”).
End User represents and warrants that End User may, under all applicable data protection and privacy regulations, including the General Data Protection Regulation (“Data Regulations”), and all applicable written or oral contracts, agreements, commitments, policies or other obligations or representations, transfer any and all personally identifiable information to Nozomi Networks as necessary to allow Nozomi Networks to fulfill its obligations hereunder, including transfer of such data from the European Union to the United States and vice versa, without obtaining any further consent or approval (whether explicit, unambiguous, express or implied) from any individual, labor organization, government authority, or other third party, and without taking any other steps prior to such transfer. End User shall indemnify and hold Nozomi harmless from any damage or expense (including attorney’s fees and costs) resulting from End User’s contravention or other violation of these provisions or any applicable Data Regulations.
Nozomi uses any such personally identifiable information solely to perform its obligations under the Agreement and in accordance with its privacy policy as available at: https://www.nozominetworks.com/privacy-legal-notices/. Any End User data or information processed or collected by Nozomi Networks in connection with Vantage shall be subject to and governed by the Nozomi Networks Data Processing Agreement (“DPA”) which incorporates the Standard Contractual Clauses by reference is available at: https://www.nozominetworks.com/legal/dpa-addendum. Nozomi Networks and its partners do not provide backup services for End User data and if End User’s use of the Subscription Services terminates for any reason, Nozomi Networks and its partners may, without notice, delete or deny End User access to any of content or meta data that may remain in its/their possession or control. In addition, End User agrees that if, at Nozomi Networks’ and its partners’ sole determination, End User is using the Subscription Services in a manner that violates laws, rules or regulations or creates an excessive burden or potential adverse impact on Nozomi Networks’, its partners’ or its suppliers’ systems, business or End Users, Nozomi Networks, its partners or its suppliers may suspend or terminate End User’s access to the Subscription Services without notice to or liability to End User.
As it relates to any SaaS Services provided to End User by Nozomi Networks, Nozomi Networks will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of End User data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of End User data (other than by End User or its users). The terms of the DPA at https://www.nozominetworks.com/legal/dpa-addendum posted as of the Effective Date are hereby incorporated by reference. To the extent personal data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Nozomi Networks the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, End User and its applicable Affiliates are each the data exporter, and End User’s acceptance of this Agreement, and an applicable Affiliate's execution of an Order, shall be treated as its execution of the Standard Contractual Clauses and Appendices.
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 ANY OTHER WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SOFTWARE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR EXPRESS WARRANTIES, INCLUDING ANY 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 ACKNOWLEDGES AND AGREES THAT NO VENDOR CAN ASSURE COMPLETE SECURITY AND NOTHING HEREIN OR ELSEWHERE SHALL BE DEEMED TO IMPLY A SECURITY GUARANTEE OR ASSURANCE.
13.1 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 in an. Order. Subscriptions for any SaaS services, other subscription-based products and/or services, and Support for any Software and/or Hardware 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.
13.2. This EULA and any licenses granted and/or Services (including Support) hereunder will immediately terminate if End User either materially breaches this Agreement and such breach cannot be cured, or if End User fails to pay any portion of the applicable license fees directly to Nozomi or Partner and fails to cure the payment breach within thirty (30) days written notice issued to End User. 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 9 (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 16, AND 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 WARRANTY IN SECTION 4, 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 NOZOMI NETWORK’S BREACH OF THE WARRANTY IN SECTON 5 IS REPAIR, REPLACEMENT OR REFUND OF THE DEFECTIVE OR NON- CONFORMING PRODUCT AS SPECIFICALLY STATED THEREIN.
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 Nozomi Networks Product(s) or Services or the use thereof according to this Agreement and any user documentation infringes any intellectual property right of a third party. If the Product(s) or Services, 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 Product(s) or Services, (ii) replace or modify the Product(s) or Services so they are non- infringing or, if neither (i) nor (ii) is reasonably practicable, then (iii) accept return of the applicable Product(s) or Services and refund to End User the amounts paid for such Product(s) or Services less depreciation based on a 5-year straight-line depreciation schedule. Nozomi Networks shall have no indemnity obligation to End User under this Section 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 SHALL BE THE 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 AND SERVICES.
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, 4.4, 16(b) any Excluded Activities, or 17.
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 to any country, jurisdiction, entity, persons (individuals) subject to any trade embargoes, identified as restricted or denied parties, or where such is 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.
If the Product(s) 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, 4.4, 9, 12, 14-17, and 19-22 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. 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 may be amended or supplemented only by a writing that refers explicitly to this Agreement signed by both parties. 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: legal@nozominetworks.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.
