Nozomi Networks Products End User License Agreement.

Last Updated: April 25, 2025

THE NOZOMI NETWORKS PRODUCTS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) 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, ACTITVATION, 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.

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This Agreement is between End User and Nozomi Networks, Inc., a Delaware corporation, and/or its Affiliates (together referred to herein as "Nozomi Networks"). Each party may be referred to herein as a “Party” or together the “Parties.” 

1. Definitions. The following capitalized terms shall have the meanings set forth below:

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. 
2. “Authorized Partner” means a Nozomi Networks authorized reseller, distributor, or managed services provider. 
3. “Deliverables” means any configurations, reports, and/or written documentation generated for End User in connection with the performance of the Professional Services.
4. “Delivery” means (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 EXW (Nozomi Networks docks) shipping terms (INCOTERMS 2020).
5. “Documentation” means Nozomi Networks technical specifications that accompany and describe the installation, use and operation of a Product.
6. “End User” means the Party that has purchased or licensed the Products for its own use, either directly from Nozomi Networks or through an Authorized Partner. The Products ordered through an Authorized Partner are licensed directly to the End User subject to the terms and conditions herein.
7. “End User Data” means all data that is uploaded, transmitted, automatically collected, or otherwise submitted by End User in connection with End User’s use of the Products. End User Data does not include any Threat Actor Data or publicly available data.
8. “Hardware” means the physical Nozomi Networks branded hardware on which the Software and Subscription Services operate.
9. “Nozomi Networks Vantage” means the global cloud-based SaaS solution which works in conjunction with Hardware. Nozomi Networks 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 End User OT and IoT networks.
10. “Order” means a signed Nozomi Networks quotation, a purchase order accepted by Nozomi Networks, a mutually signed SOW, or another mutually agreed upon order form. A purchase order shall reference a Nozomi Networks quotation number and identify the agreed upon the Products and Services to be purchased, mutually agreed upon pricing arrangements, Order Term, and other terms and conditions as may be mutually agreed upon by the Parties.
11. “Order Term” means the period specified in an Order during which End User is authorized by Nozomi Networks to access and use the Products or during which Services will be performed.
12. “Products” means the Nozomi Networks branded Hardware, Software, or Subscription Services.
13. “Professional Services” means the installation, configuration, and training services that Nozomi Networks may provide to an End User.
14. “Services” means Professional Services or Support.
15. “Software” means Nozomi Networks software (in object code format) or content, any updates or upgrades thereto provided to End User by Nozomi Networks or its Affiliates.  Software may be delivered to End User on Hardware or on a standalone basis.   
16. “SOW” means a mutually executed statement of work describing the Professional Services to be performed by Nozomi Networks for End User.
17. “Subscription Services” means the cloud-based SaaS solutions and other subscription services, including content, updates and upgrades thereto, made available to End User by Nozomi Networks directly or through its Authorized Partners and suppliers.  Subscription Services include, without limitation Nozomi Networks Arc™, OT Threat Feed service, and Nozomi Networks Vantage™.
18. “Support” means the technical support and maintenance services for the Products and periodic bug fixes and updates to the Products that Nozomi Networks may make generally available at an annual subscription cost to End Users. 
19. “Threat Actor Data” means any malware, spyware, virus, worm, Trojan horse, or other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data, in each case that is potentially related to unauthorized third parties associated therewith and that: (i) End User provides to Nozomi Networks in connection with this Agreement, or (ii) is collected or discovered during the course of Nozomi Networks providing Products, excluding any such information or data that identifies End User or to the extent that it includes personally identifiable information.

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2. Software License Grant, Access and Use of the Subscription Services

1. Software License. For the Order Term, and subject to End User’s compliance with the terms of the Agreement, Nozomi Networks grants End User a non-exclusive, limited, non-transferable, revocable, non-sublicensable right 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 the Documentation.  
2. Subscription Services. For the Order Term, and subject to End User’s compliance with the terms of the Agreement, Nozomi Networks grants End User a non-exclusive, limited, non-transferable, non-sublicensable, revocable right to use and access the Subscription Services. Such right shall be limited to End User’s and its Affiliate’s internal business purposes only in accordance with the Documentation. 
3. Support and Service Level Commitments. For the duration of the Order Term, Nozomi Networks shall provide Support to End User subject to Nozomi Networks Customer Support Terms and Condition found here: https://www.nozominetworks.com/legal/customer-support-terms-and-conditions and subject to the Nozomi Networks Support Global Data Sheet found here: https://www.nozominetworks.com/resources/global-customer-support. For Subscription Services, Nozomi Networks shall provide the service level commitments outlined in the Service Level Agreement available at: https://www.nozominetworks.com/legal/sla.
4. 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.
5. Upon registration and/or use of the Subscription Services, End User shall be required to provide certain information (including username, password and billing information). End User agrees to provide true, accurate, complete and current information. End User is solely responsible for maintaining the confidentiality of any passwords and account information required to access Subscription Services, for all acts that occur in connection with End User’s account and to immediately notify Nozomi Networks of any unauthorized use of End User’s account. End User is solely responsible for any information it provides in connection with the Subscription Services and its use thereof.  
6. In addition, Nozomi Networks Vantage interoperates with third-party services such as Amazon Web Services (“Third-Party Services”) and depends on continuing availability of and access to such Third-Party Services, including application programming interfaces. 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 Nozomi Networks Vantage services. If a Third-Party Service becomes permanently unavailable for interoperation with the Nozomi Networks Vantage (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. 

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3. Limitations on Use and Proprietary Rights

1. Limitation on Use. End User may not: (i) make unauthorized copies of the Products; (ii) disclose, distribute, transfer or market the Products to third parties; (iii) remove or modify any proprietary notices, labels or marks on or in any copy of the Products; (iv) distribute, sell, sublicense, rent, lease or use the Products or Hardware (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Products available to third parties; (v) translate, reverse engineer, decompile or disassemble the Products; or (vi) use a previous version or copy of the Products after having received an upgraded version as a replacement of the prior version. All copies of the prior version must be destroyed by End User.  Upon written request by Nozomi Networks, End User shall certify in a writing signed by an officer of End User and delivered to Nozomi Networks that all such copies have been returned, destroyed or erased.
2. Subscription Services Acceptable Use. End User agrees to comply with all applicable rules regarding online conduct and the collection and transmission of data, including all laws, rules, codes and regulations of the jurisdictions in which End User operates and from which it gathers data. In particular, End User agrees that it will not: 
   
   1. Transmit data unless it has obtained all authorizations required by law or by the owners of the data, including any consent required from data subjects for collection, use and transmission to other countries;
   2. Transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
   3. Transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
   4. Interfere with or disrupt the Subscription Services, or servers or networks connected to the Subscription Services;
   5. Transmit, or otherwise make available any content that violates any applicable laws or regulations, including export laws and regulations, transmit any spam or otherwise duplicative or unsolicited messages in violation of any applicable laws, transmit or post content that is harmful, threatening, abusive, defamatory, or libelous or transmit or post any material that encourages conduct that could constitute a criminal offense or promotes harm or injury against any group or individual.

• End User agrees to be solely responsible for compliance with the foregoing by its users, employees, contractors and agents. Further, End User agrees that if, at Nozomi Networks’ or that of any Third-Party Services’ sole determination, End User is using the Subscription Services in violation of this Section, or in violation of applicable laws, or creates an excessive burden or potential adverse impact on Nozomi Networks’, any Third-Party Services’ systems, business or other End Users, Nozomi Networks or such Third-Party Service may flag or block content, block access to End User’s sites from particular jurisdictions or suspend or terminate End User’s access to the Subscription Services without notice to End User and Nozomi Networks will have no liability to End User regarding the deletion, blocking or removal of content or the suspension or termination of Subscription Services. Without limiting the foregoing, where Subscription Services are not available where they are illegal to use, Nozomi Networks reserves the right to refuse and/or cancel such Subscription Services to anyone at its own discretion if it believes that they are being used in violation of an applicable law or if instructed to do so by any applicable legal authority.

3. Proprietary Rights. With exception of Hardware, all intellectual property rights (including but not limited to copyrights, patents, and trademarks), title, interest, and any other rights to the Products, and all updates, improvements, and derivative works, remain with Nozomi Networks. End User acknowledges that no title to the intellectual property in the Products is transferred to End User and End User will not acquire any rights except for rights to Hardware and the specific rights as expressly set forth in Section 2. 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.
4. End User Data.  End User owns all right, title, and interest in all End User Data. During the Order Term, End User grants Nozomi Networks a worldwide, non-exclusive, limited license to access, process, transmit, store, use, and display End User Data in connection with the performance of Nozomi Networks’ obligations under the Agreement. End User further agrees that Nozomi Networks may use End User Data in de-identified form for analysis and improvement of Nozomi Networks’ Products. End User represents and warrants that it has all rights and permissions necessary to transfer End User Data and grant Nozomi Networks access to such End User Data as contemplated herein.‍
5. Deliverables. Nozomi Networks shall solely own all worldwide right, title and interest in and to the Deliverables. Subject to compliance with the terms of this Agreement, Nozomi Networks grants End User a perpetual, worldwide, non-transferable, non-sublicensable, non-exclusive license to use any Deliverables delivered as part of the Professional Services. Notwithstanding any other provision of this Agreement: (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 End User, on the same terms as the Deliverables.

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4. Hardware

1. Hardware with Embedded Software. 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.
2. Subscription Hardware Products or Hardware as a Service (“HwaaS”). End User may choose from a select group of Nozomi Networks Hardware options to run its Software licenses. Term-based license subscription Software is only licensed for the duration of the Order Term and must be renewed to maintain functionality. At the expiration of the Order Term, Hardware shall be owned by the End User and does not need to be returned. If 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 Order Term, then Nozomi Networks may upon End User’s written request, supply to End User an equivalent and updated Hardware. Additional terms applicable to any enrollment into the HaaS program is described at: https://www.nozominetworks.com/legal/hardware-as-a-service-haas-program-guidelines. 

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5. Warranty Terms. 

1. Hardware. Nozomi Networks warrants that the Hardware is free from material defects in manufacture and materials for twelve (12) months following receipt by End User (the “Warranty Period”). 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 malfunctions attributable to extrinsic causes, such as: (a) natural disasters including fire, smoke, water, earthquakes or lightning; (b) electrical power fluctuations or failures; (c) abuse, misuse, accident, alteration, neglect, including End User’s failure to maintain the system, improper transport or storage, mechanical or electrical shock or operation outside of the environmental specifications; (d) repair, correction or modification not provided or authorized by Nozomi Networks; (e) the combination or use of the Hardware with software not provided by Nozomi Networks or not authorized by Nozomi Networks, or (f) uses that are not consistent with the Documentation supplied by Nozomi Networks. Nozomi Networks does not warrant that the Hardware operates without interruption or without error. This warranty is non-transferable.
   
   1. RMA Replacement. The Hardware warranty includes replacement or repair for Hardware provided itis 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. 
   2. 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. 
2. 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.
3. Subscription Services. Nozomi Networks warrants that during the Subscription Term, the Subscription Services will substantially conform to the description set forth in the applicable Documentation and Nozomi Networks shall use commercially reasonable efforts so that Availability Commitment outlined in the Service Level Agreement available at: https://www.nozominetworks.com/legal/sla.  
4. 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; and (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident.
5. Professional Services. (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 End User all fees paid for the non-compliant Professional Services. The rights and remedies granted End User under this Section state Nozomi Network’s entire liability, and End User’s exclusive remedy, with respect to any breach of the warranty set forth in this Section.
6. DISCLAIMER. 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.

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6. Evaluation (Proof of Concept)

1. Evaluation Products. Nozomi Networks may make certain Products available for evaluation purposes (“Evaluation Product”). Nozomi Networks grants to End User a non-exclusive, worldwide, non-transferable, non-sublicensable license during the applicable Evaluation Period to install and use the Evaluation Product 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 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.
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, (i) all licenses granted under this Section will cease, and (ii) End User will immediately return the Evaluation Product to Nozomi Networks and destroy or erase any intangible copies of the Evaluation Product and upon written request certify in a writing signed by an officer of End User and delivered to Nozomi Networks that all such copies of have been returned, destroyed or erased.
3. Additional Evaluation Terms. Notwithstanding anything else to the contrary as contained in this Agreement, End User acknowledges and agrees that the Evaluation Product is provided for evaluation “‍” 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 does not provide maintenance and or Support with respect to Evaluation Software.

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7. Fees, Payment Terms, Delivery (Direct End Users Only). The following terms in this Section 7 only apply to End Users 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 and Authorized Partner shall apply as between those parties and not Nozomi Networks. 

1. Fees and Payment Terms. 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 Order Term at the time of the initial order and in advance of each renewal period. Exceptions to payment terms may only be applied upon mutual written agreement between the Parties; (b) fees for other Software licenses and Hardware purchases will be invoiced upon Delivery; (c) fees for Professional Servies will be invoiced upon execution of the SOW. 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.
2. Delivery. 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 EXW (Nozomi Networks dock) (INCOTERMS 2020). 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.

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8. Confidentiality. 

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 and Services, 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.
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 as the terms in 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 Discloser’s reasonable efforts to limit the disclosure of the information. 
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, and (ii) at the instruction of the Discloser, either promptly destroy all Confidential Information of the Discloser or return all Confidential Information of the Discloser.
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.

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9. Professional Services. 

1. End User may purchase Professional Services as detailed in a SOW. Each SOW 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 this Agreement. In the event of a conflict between the provisions of this Agreement and a SOW, the relevant provisions of the SOW shall prevail.
2. Unless otherwise specified on a SOW, all Professional Services shall be performed at Nozomi Networks premises. For Professional Services performed at End User’s premises, End User 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 End User’s premises.
3. End User and Nozomi Networks will schedule a mutually agreed time for Professional Services delivery. If End User 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 End User 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 End User 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 End User is not available or present (no show) on the scheduled day of Services, then End User 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 End User will not be entitled to a refund of any amounts relating thereto.
4. End User acknowledges that Nozomi Networks may either perform the Professional 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.

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10. Authorization and Data Protection and Security. 

1. 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. 
2. Any personally identifiable information processed or collected by Nozomi Networks in connection with Nozomi Networks Products shall be subject to and governed by the Nozomi Networks Data Processing Agreement (“DPA”) available at: https://www.nozominetworks.com/legal/dpa. Nozomi Networks and its partners do not provide backup services for End User Data other than where it resides and stored in Nozomi Networks Products 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.  
3. Nozomi Networks will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of End User Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of End User Data. 

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11. Term and Termination. 

1. The term of this Agreement commences upon Delivery of the Products to End User and will remain effective for the Order Term. Subscription Services, along with Support for any Software and/or Hardware will automatically renew at the end of the applicable Order Term unless either Party gives the other at least thirty (30) days’ written notice of non-renewal prior to the end of the Order Term. Upon the renewal of a License, Subscription Service, and/or Support, Nozomi Networks may increase renewal Fees at least 5% over the previous Fees. 
2. This Agreement and any licenses or rights 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 Networks or Partner and fails to cure the payment breach within thirty (30) days written notice issued to End User. Upon termination of this Agreement, End User shall destroy all copies of Software in End User’s possession or control, including copies embedded in Hardware. 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 (Software License Grant, Access and Use of the Subscription Services), Section 3 (Limitations on Use and Proprietary Rights) or Section 8 (Confidentiality).

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12. Limitation of Liability. SUBJECT TO EACH PARTY’S INDEMNITY OBLIGATIONS BELOW IN SECTION 13, 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 5, EVEN IF NOZOMI NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NOZOMI NETWORKS 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 NETWORKS’ BREACH OF THE WARRANTY IN SECTION 5 IS REPAIR, REPLACEMENT OR REFUND OF THE DEFECTIVE OR NON- CONFORMING PRODUCT AS SPECIFICALLY STATED THEREIN.

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13. Indemnification. 

1. 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”) 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 an unaffiliated 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.
2. End User shall indemnify, defend, and hold Nozomi Networks harmless from and against any and all Losses arising from or in connection with any Claim brought by a third party arising from End User’s breach of Sections 2, 3, 10.1, 15, or 16, or arising from any Excluded Activities.
3. 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 Party in a manner that requires the other Party to admit fault or attributes liability to the other Party without the other Party’s prior written consent).

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14. Import / Export Requirements; FCPA Compliance. 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. 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.

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15. Guardian Air Compliance with Union General Export Authorization EU001. 

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.
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.
3. In particular, End User shall ensure that Guardian Air is not: 
   
   1. re-exported to a country or territory that is not listed in Part 2 of UGEA EU001 (an “EU001 Country”) or otherwise made available in any way for end-use in a country or territory that is not an EU001 Country;
   2. stored in a customs-free zone or free warehouse;
   3. used in connection with activities relating to chemical, biological, or nuclear weapons or other nuclear explosive devices, or missiles; 
   4. used for a military end-use (within the meaning of the EU Dual-Use Regulation) in a country that is subject to an arms export ban imposed by the European Union; or
   5. used as parts or components of military items listed in the national military list of Italy that have been exported from the territory of Italy without authorization or in breach of an authorization prescribed by the national legislation of Italy.
4. 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.
5. 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.
6. 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. 
7. 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.

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16. Open-Source Software. The Products may use third party software subject to the terms and conditions of open-source software licenses (“Open-Source Software”). Under some of these licenses, Nozomi Networks is required to provide End User with notice of the license terms and attribution to the third party. End User’s right to use such Open-Source Software as part of the Products is subject to any applicable license terms accompanying such Open-Source Software. A list of the Open-Source Software and the licensing terms is available at https://security.nozominetworks.com/licenses/.

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17. Survivability. Sections 2, 3, 5.6, 8, and 12-18, shall survive the termination of this Agreement for any reason.

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18. General Provisions. 

1. Entire Agreement.  This Agreement (together with all addendums and exhibits) constitutes the entire agreement between End User and Nozomi Networks concerning the subject matter of this Agreement, and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. Nozomi Networks shall not be bound by any additional and/or conflicting provisions in any order, acceptance, or other written correspondence (including an End User 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.
2. Waiver, Severability & Amendments.  The waiver by either party of a breach or default by the other party of any provision of this Agreement will not be construed as a waiver by such party of any succeeding breach or default by the other party in the same or other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy.  If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible in order to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.  This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties. 
3. Assignment.  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.
4. Governing Law. 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, U.S.A. for resolution of any disputes arising out or relating to this Agreement.
5. Force Majeure.  Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, epidemic, pandemic, quarantine, or any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the control of the party and which could not have been prevented with reasonable care.  The party experiencing a force majeure event shall use commercially reasonable efforts to provide notice of such to the other party. 
6. Independent Contractors; No Third-Party Rights.  The parties are independent contractors.  This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
7. Consent. End User acknowledges it has read this Agreement, understands it, and agrees to be bound by all its terms and conditions.