Terms and Conditions (“Agreement”)
1. DEFINITIONS
“OSSIM by AlienVault” means the AlienVault security information and event management (SIEM) software distributed to the public under an open source license (GPL Version 3.0, available at http://www.gnu.org/licenses/gpl.html) and including AlienVault USM, including Updates thereof.
“AlienVault USM” means the object code copy of the Alienvault USM software developed by AlienVault to integrate with OSSIM by AlienVault, including Updates thereof.
“Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of Software or any other form in which such Software may be recast, transferred or adapted, which, if used without the consent of AlienVault, would constitute a copyright infringement.
“Documentation” means the user manuals and any other materials in any form or medium made generally available by AlienVault or its Partners to the users of the Software, regarding the proper installation and use of the Software.
“Fees” means the fees for the Software License (including any renewal or extension thereof), Hardware, Support and Maintenance Services, or any other product or service purchased under this Agreement.
“Hardware” means computer hardware devices purchased by Customer under a valid Sales Order Form and installed with the Software by AlienVault on behalf of Customer, providing security information management functionalities.
“Maintenance and Support Services” means the service for the correction of errors and/or support for the Software, and the issuance of any Updates.
“Partners” means distributors and resellers authorized by AlienVault or its distributors to re-sell the Software, or an AlienVault authorized co-branded version of the Software.
“Software” means the AlienVault USM or any other AlienVault software product sold under a valid Sales Order Form, the Documentation, and all third-party software that AlienVault may have purchased or licensed from third parties and delivered to the Customer as part of the Software, as well as any future Updates provided by AlienVault or its Partners.
“Updates” means all subsequent releases and versions of the Software that AlienVault makes generally available to customers who have purchased Maintenance and Support Services from AlienVault .
2. INTELLECTUAL PROPERTY RIGHTS
A. Ownership. Title to the Software, Documentation, Updates and all patents, copyrights, trade secrets and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of AlienVault and its licensors. Customer may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Software, Hardware or Documentation and will not acquire any rights in the Software or Documentation, except the limited license specified in this Agreement. AlienVault and its licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Software, including any improvement or development thereof. AlienVault retains all rights not expressly granted to Customer in this Agreement. Customer shall promptly notify AlienVault in writing upon discovery of any unauthorized use of the Software or Documentation or infringement of AlienVault’s proprietary rights in the Software or Documentation.
B. Open Source Components. OSSIM by AlienVault is provided to Customer under an open source software license, currently the GNU GPL Version 3.0 (http://www.gnu.org/licenses/gpl.html). This software includes certain third-party software as set out in the Documentation, which may be updated from time to time in line with new versions OSSIM by AlienVault (as indicated at http://www.alienvault.com/open-threat-exchange/projects) and which may be used only in accordance with the licenses set forth therein. OSSIM by AlienVault and AlienVault USM, include certain third-party software as set forth in the Documentation, and may be used only in accordance with the licenses set forth therein, which prevail over the terms of this Agreement with respect to such third-party software. Source code for these components is available upon written request to AlienVault. With respect to AlienVault USM, third-party components are integrated by AlienVault for and on behalf of Customer in accordance with this Agreement. Therefore, any third-party software delivered to Customer pursuant to this Agreement, including any third-party's plug-in that may be provided with AlienVault USM is included for use at Customer’s option, solely in accordance with the corresponding third-party software license(s). AlienVault shall have no liability for Customer’s use of any third-party software.
3. LICENSE GRANT AND FEES; HARDWARE
A. Software License. Customer is granted a non-exclusive, non-transferable, non-assignable, non-sublicensable, restricted license during the term set forth in the Order Form, to install and use one production copy, one test copy, and one backup copy of the Software in accordance with the relevant Documentation. The Software and Documentation may not be distributed to any third parties.
The license granted herein is subject to the specific restrictions and limitations set forth herein, the terms of the open source licenses governing the components included in the Software, and/or any additional licensing restrictions and limitations specified in the Documentation, or by notification and/or policy change posted at www.alienvault.com.
Customer may use the Software for internal business purposes only in relation to its own computer systems and any computer systems or facilities owned or managed exclusively by or for Customer. Customer may not use the Software for providing hosted or service bureau services to the general public or any third-party entities that are not managed facilities for which Customer provides integral IT services.
If the Software is a version that Customer has converted or exchanged from a valid licensed prior version (i.e. an Upgrade), Customer agrees that by using the Upgrade, Customer will no longer use the prior version. AlienVault reserves the right to require the certification of the destruction of such previous version of the Software.
B. Restrictions on Use. Subject to the terms of the open source licenses governing the open source components referred to in Section 2(B), Customer shall not (i) allow third parties or develop methods for third parties to use the Software; (ii) sell, rent, lease, use collectively, record, license, sublicense, share, distribute, publicly communicate, transfer or exploit in any other manner the Software or Documentation, unless otherwise expressly provided for in this Exhibit; (iii) except as provided by applicable law, decompile, disassemble, or reverse engineer the Software, in whole or in part, and Customer shall not attempt to obtain in any other manner any Software source code, and shall not carry out any action to the detriment of AlienVault’s intellectual property rights or those of its suppliers; (iv) make copies, execute, publish, or reproduce Software or Documentation, unless expressly authorized in this Exhibit (and all copies must maintain AlienVault’s copyright notices); (v) develop any Derivative Works or any type of software program based on Software, the Documentation, or any other Confidential Information of AlienVault; (vi) make available, reveal, disclose, offer, or allow the use of Software by third parties, without the prior written consent of AlienVault; (vii) alter or modify the Software without the prior written consent of AlienVault; (viii) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Software, including without limitation any mechanism used to restrict or control Software functions; (ix) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by AlienVault for downloading Software; or (x) disclose to any third party any benchmarking or comparative study involving the Software or Documentation.
C. Fees. Customer agrees to pay AlienVault Fees for the licenses and associated services as provided in the pertinent Sales Order Form.
E. Hardware. To the extent that Customer purchases any Hardware, the following terms of this Section 3E shall apply. Title to the Hardware passes to Customer when the price for each Hardware is paid for in full. Customer shall install the Hardware in its own facilities in the location indicated in the Sales Order Form, in accordance with AlienVault’s instructions. Customer shall notify AlienVault of any change of the location of the Hardware from the original place of installation. The Hardware may not be purchased for resale purposes by Customer unless Customer is an authorized reseller of AlienVault.
4. SUPPORT, INFORMATION, AND AUDITS
Support. Subject to Customer paying the Fees for Support and Maintenance Services per a pertinent Sales Order Form, AlienVault will provide Support and Maintenance Services to Customer per the Support and Maintenance Addendum attached hereto.
B. Information. Customer will keep and maintain commercially reasonable written records and accounts regarding Customer’s use of Software for at least two (2) years after expiration of the applicable Software license term.
C. Audits. AlienVault, or a certified public accountant designated by AlienVault, shall have the right, upon ten (10) days written notice to Customer, to conduct an inspection and audit of all relevant facilities and records of Customer relating to this Agreement. Such audit shall be conducted during regular business hours at Customer’s offices and data centers and in such manner so as not to unreasonably interfere with Customer’s normal business activities. In no event shall audits be conducted more frequently than once every six (6) months. The audit shall be conducted at AlienVault’s expense; provided, however, that if the audit reveals that Customer has failed to comply with any material term of this Agreement, Customer shall pay all reasonable costs and expenses incurred by AlienVault in conducting the audit, and any applicable unpaid fees
5. WARRANTY AND WARRANTY DISCLAIMERS
AlienVault warrants, for a period of ninety (90) days from the original delivery date, that the Software and Hardware will be free from defects in materials and workmanship and substantially conform to the specifications set forth in the Documentation. All specifications are provided based on testing of the Software in a laboratory setting, and actual performance may be affected by network connections, software and hardware configuration and hardware specifications. This limited warranty does not apply to third-party open source software. AlienVault’s entire liability and Customer’s exclusive remedy in case of a breach of the foregoing warranty shall be correction of the error or, at AlienVault’s option, replacement of the Software. This limited warranty is void if the defect has resulted from accident, abuse, negligence, misapplication, or where the Software has not been properly installed or used in accordance with the Documentation.
The Software is not designed, manufactured, or intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property or environmental damage (collectively, “High Risk Activities”). AlienVault and its suppliers expressly disclaim any express or implied warranty with respect to any High Risk Activities.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, HARDWARE, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALIENVAULT DOES NOT WARRANT THAT THE SOFTWARE, HARDWARE, OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALIENVAULT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6. LIMITATION OF LIABILITY
IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ALIENVAULT OR ITS LICENSORS, PARTNERS, OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, DAMAGE TO NETWORKS, EQUIPMENT, OR HARDWARE, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY), OR ANY AMOUNTS IN EXCESS OF THE ORIGINAL PURCHASE PRICE OF THE SOFTWARE, PROFESSIONAL SERVICES OR OTHER AMOUNTS PAID UNDER A PERTINENT SALES ORDER FORM. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7. CONFIDENTIALITY, CUSTOMER INFORMATION, AND COMMUNICATIONS
A. Confidentiality. Customer acknowledges and agrees that the Software incorporates confidential and proprietary information developed or acquired by AlienVault including, but not limited to, technical and non-technical data, formulas, patterns, compilations, devices, methods, techniques, drawings and processes related to the Software, which constitutes the valuable intellectual property of AlienVault and its suppliers.
The parties may use confidential information solely in accordance with this Agreement and will take all reasonable precautions necessary to safeguard the confidentiality of such information. The parties will hold in confidence and not disclose, reproduce, distribute or transmit the confidential information, directly or indirectly, in any form, by any means, or for any purpose, except to those of its employees, agents, consultants or subcontractors who require access for Customer’s authorized use of the Software in accordance with the terms of this Agreement. Customer will implement reasonable security measures to protect such confidential information at a level no less restrictive than used to protect its own confidential information.
The parties shall not be restricted under this Section 7 with respect to confidential information that the receiving party affirmatively establishes that (i) has or becomes generally available to the public other than as a result of an act or omission of the receiving party or any of its employees, agents, subcontractors or consultants, (ii) was in the possession of the receiving party before receiving the information, (iii) is independently developed by the receiving party without use of the confidential information, or (iv) is required to be disclosed by law, court order or other legal process, provided that the receiving party shall first provide the disclosing party with prompt written notice thereof.
Customer acknowledges that (i) any use or threatened use of the Software in a manner inconsistent with this Agreement, or (ii) any other misuse of the confidential information of AlienVault will cause immediate irreparable harm to AlienVault for which there may be no adequate remedy at law. Accordingly, Customer agrees that AlienVault shall be entitled to seek injunctive relief in the event of any such breach or threatened breach by Customer. Nothing contained herein shall limit AlienVault’s right to any remedies at law.
B. Customer Information. AlienVault may use any technical information Customer provides to AlienVault for any of AlienVault’s reasonable business purposes, including product support and development. Customer acknowledges that the Software may include a monitoring capability that sends anonymous statistics about performance, device utilization and network size remotely to AlienVault. AlienVault will not use technical information in a form that personally identifies the Customer.
C. Notices. AlienVault may send Customer required legal notices and other communications about the Software, including special offers and pricing or other similar information, customer surveys or other requests for feedback (“Communications”). AlienVault will send Communications via in-product notices or email to registered email addresses of named contacts, or will post Communications on its Website. Customer may notify AlienVault of its desire not to receive any such Communications (which may have a technical impact on Customer’s use of the Software and the provision of any Maintenance and Support Services) by writing to legal@alienvault.com.
8. EXPORT CONTROLS
Customer hereby represents, certifies and warrants that it is now and will remain in the future compliant with all export control statutes, regulations, decrees, orders, guidelines and policies of the United States Government and the Government of any country in which Customer conducts business pursuant to this agreement including but not limited to the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774) of the U.S. Department of Commerce; the U.S. antiboycott regulations and guidelines, including those under the EAR and U.S. Department of the Treasury regulations; the various economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”), and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended; and restrictions against dealings with certain prohibited, debarred, denied or specially designated entities or individuals under statutes, regulations, orders, and decrees of various agencies of the United States Government. Customer certifies that it (1) is not a Person described or designated in the Specially Designated Nationals and Blocked Persons List of OFAC; (2) does not engage in any prohibited dealings or transactions with any such Person and; (iii) does not engage in any dealings or transactions which would cause AlienVault to be in violation of any economic sanctions regulations and guidelines of OFAC. Customer shall indemnify and hold AlienVault harmless arising out of a breach by Customer of this Section 8.
9. TERM AND TERMINATION
This Agreement and the licenses granted hereunder shall remain in effect for the period specified in any applicable Sales Order Form, unless earlier terminated as set forth herein. AlienVault may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement that Customer fails to cure within thirty (30) days following written notice specifying such breach. Customer may terminate this Agreement and the licenses granted hereunder upon written notice for any material breach of this Agreement that AlienVault fails to cure within thirty (30) days following written notice specifying such breach. Except as expressly provided herein, Sections 1, 2, 4C, 5, 6, 7, 8, 9 and 13 of this Agreement shall survive termination.
10. INDEMNIFICATION
AlienVault shall indemnify and hold harmless Customer and its officers, employees, agents and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the Software infringes or violates any United States patents, copyrights, trade secrets, or other proprietary rights of a third-party. Customer may, at its own expense, assist in such defense if it so chooses, provided that AlienVault shall control such defense and all negotiations relating to the settlement of any such claim. Customer shall promptly provide AlienVault with written notice of any claim which Customer believes falls within the scope of this Section 10. In the event that the Software or any portion thereof is held to constitute an infringement and its use is enjoined, AlienVault may, at its sole option and expense, (i) modify the infringing Software so that it is non-infringing, (ii) procure for Customer the right to continue to use the infringing Software, or (iii) replace said Software with suitable, non-infringing software. Notwithstanding the foregoing, AlienVault will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Software made by or for Customer or any other party that were not provided by AlienVault or authorized by AlienVault in writing; (ii) use outside the scope of the license granted hereunder, (iii) use of a superseded or previous version of the Software if infringement would have been avoided by the use of a newer version which AlienVault made available to Customer, or (iv) use of the Software in combination with any other software, hardware or products not supplied by AlienVault. This indemnity obligation is subject to the limitation of liability and does not apply to any open source components of the Software.
11. PROFESSIONAL SERVICES (applicable only if Customer has purchased any professional service under a valid Sales Order Form or SOW)
A. General. In the event of any conflict between this Agreement and an applicable SOW, the SOW shall govern, but only as to that specific SOW. A consulting day shall be equivalent to eight (8) hours. Customer shall be responsible for all fees and expenses as set forth in the applicable SOW.
B. Customer’s Duties and Responsibilities. Customer shall make available in a timely manner at no charge to AlienVault all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by AlienVault for the performance of the Services. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to AlienVault, office space, services and access to equipment (such as copiers, fax machines, and modems) as AlienVault may reasonably require to provide the Services.
C. Intellectual Property Rights. AlienVault retains all right, title and interest in and to the materials, deliverables, Services and work product provided under each SOW, including patents, trademarks, copyrights (including the right to any derivative works), and all other intellectual property rights. The materials, deliverables, Services and work product shall not constitute "works made for hire" as that term is defined in Section 101 of the U.S. Copyright Act. To the extent that any materials, deliverables, Services or work product are considered to be "works made for hire," Customer agrees to assign all right, title, and interest in the foregoing to AlienVault. Notwithstanding anything to the contrary in this Agreement, AlienVault shall obtain no right, title or interest in any of Customer’s Confidential Information. AlienVault grants to Customer a nonexclusive, non-transferable, royalty-free license to use the deliverables solely for Customer’s internal use, pursuant to the applicable license agreement relating to the AlienVault software product at issue. Support for customizations or deliverables is not provided under the AlienVault support agreement (or any SOW unless specified therein) unless any issues also apply to the generally-available product.
D. Customer Security Regulations and Work Policy. Customer shall provide to AlienVault, and AlienVault shall ensure that its personnel or subcontractors make commercially reasonable efforts to comply with Customer’s security regulations. Unless otherwise agreed to by both parties, AlienVault’s personnel (including its subcontractors) will observe the working hours, working rules, and holiday schedules of Customer while working on Customer’s premises provided that AlienVault’s personnel are provided reasonable prior notice of all such hours, rules and schedules.
E. Training. To the extent that Customer purchases any Professional Services related to training, the following terms of this Section 11E shall apply. Training engagements must be rescheduled or cancelled at least ten (10) business days prior to the training event; failure to do so may result in Customer being responsible for any cancellation or change fees AlienVault may incur in connection therewith. AlienVault warrants that it will perform training services in a reasonable manner using generally accepted industry standards and practices. THE EXPRESS WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. All materials provided to Customer for training purposes (and all intellectual property rights related thereto) are owned exclusively by AlienVault ("Training Materials").
12. PUBLICITY
During the term of this Agreement, Customer and AlienVault may engage in co-marketing and publicity programs, including advertisements in trade and other publications, upon written approval (not to be unreasonably withheld or delayed). AlienVault may also use Customer's name and logo as a reference, on AlienVault's website, and in marketing materials.
13. GENERAL
A. Assignment. Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent. However, AlienVault may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
B. Force Majeure. AlienVault will not be held responsible for any failure, delay or interruption caused by circumstances outside of its control, such as network failure, network connection failure, earthquake, flooding, strikes, embargos or acts of government. If such event giving rise to Force Majeure lasts for more than 30 days, then either party may terminate this Agreement without such termination giving rise to any liability or right to any refund.
C. Amendments. Except as expressly stated herein, the terms of this Agreement may not be modified except by a written agreement signed by both parties.
D. Severability. If any provision of this Agreement is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed severed from the remaining provisions of this Agreement and shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.
E. Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.
F. Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of California without giving effect to the conflicts of law provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Customer hereby irrevocably consents to jurisdiction of both the state and federal courts located in San Francisco County, California.
G. Relationship of the Parties. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer with the other party, and neither party will by virtue of this Exhibit have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Support and Maintenance Services Addendum
*This section shall apply to the extent that Customer has paid for Support and Maintenance Services under a valid Sales Order Form for the current term.
1. DEFINITIONS
“Coverage Period”: 9:00am to 5:00pm PST, Monday through Friday, and excluding US national holidays for customers in the Western Hemisphere; 9:00am to 5:00pm CEST, Monday through Friday, and excluding Irish and Spanish national holidays for customers in the Eastern Hemisphere
“Maintenance Patch”: A release of or for a Supported Product that includes the most recent Resolutions.
“Resolution”: Either a software modification or addition that, when made or added to the Supported Product, corrects a Supported Incident; or a work-around, procedure or routine that, when observed in the regular installation or operation of the Software, eliminates the practical adverse effect of such Supported Incident on Customer; or replacement of the Supported Product. (Resolutions may include patches and bug fixes).
“Supported Incidents”: A material defect in materials and workmanship of the Supported Products, or failure of the Supported Product to conform to the specifications set forth in the documentation (“Documentation”) relating to that version of the Supported Product, resulting in the inability to use, or restriction in the use of, the Supported Product.
“Supported Products”: Current version of the Software and any prior version for which AlienVault provides support.
2. SERVICE DESCRIPTION AND SCOPE
A. Scope of Maintenance Services.
Supported Product Maintenance: The provision of Resolutions, Maintenance Patches, and Upgrades/Updates in relation to the Supported Product during the Support Period, as set forth below.
B. Scope of Support Services. The scope of Support Services includes the following two services:
1. Technical Support: Help with regard to installation, configuration and administration of the Software and/or Hardware. The telephone support is provided 5 days a week, 8 hours a day.
2. Customer Support Portal: Online platform for customers to submit and track support tickets and access the support knowledge database.
Support Services do not include development, consulting or technical training. Any additional tasks derived from the ticket beyond knowledge transmission, and not specified hereunder, such as development, documentation, specific testing or remote access will be charged on an hourly basis unless otherwise agreed in writing by the parties. The Support Services and Maintenance Services are collectively referred to as the “Services.”
C. Service Modification. Modifications to the scope of the Maintenance Services and/or Support Services may be made from time to time by AlienVault and will be notified to Customer in writing.
D. Exclusion from Services. AlienVault is not obligated to provide Maintenance Services and/or Support Services in the following situations:
- Unsupported Incidents;
- Improper installation or operation of the Supported Product not in accordance with AlienVault’s specifications or the Documentation;
- The Supported Product has been damaged or the Supported Incident is caused by Customer’s negligence, or other causes beyond the reasonable control of AlienVault;
- The Supported Incident is caused by third party hardware or software not sold or licensed by or through AlienVault;
- Customer has not installed and implemented a Maintenance Patch/Update or Upgrade so that the Software is not a release supported by AlienVault;
- Customer has broken the AlienVault hardware seal, except under instructions of AlienVault support staff or as part of an upgrade process.
Such issues may be addressed separately upon request to AlienVault or an AlienVault authorized partner at the applicable hourly rates for consulting.
3. Maintenance Service and Support Service Period
The Maintenance and Support Service period shall be for a period of time as set forth in a valid Sales Order Form.
4. Means of providing the Maintenance and Support Services
AlienVault will provide the Services by remote assistance. Except in the case of emergencies, requests for Services must be made to AlienVault’s customer service portal. In response to requests, support technicians will respond via email or phone. Severity 1 and 2 issues may be reported by phone.
5. Response Criteria
AlienVault’s initial response may result in resolution of the request or form the basis for determining what additional actions may be required to achieve Resolution. For Service requests received outside of the Coverage Period, AlienVault will use commercially reasonable efforts to respond within the timeframe designated in Section 10 below based on the Severity level as determined by AlienVault. AlienVault is not responsible for delays in response delivery caused by systems and network problems.
6. Maintenance Patches and Upgrades/UPDATES
In addition to Resolutions, during the term of this Exhibit, AlienVault shall make Maintenance Patches and Upgrades/Updates available if and when made generally available by AlienVault. If a question arises as to whether a product offering is an Upgrade/Update or a new product or separate component, AlienVault’s determination will prevail, provided that AlienVault treats the product offering as a new product or feature for its end user customers generally.
7. Customer Responsibilities
Customer agrees to:
- Pay the applicable Services fees and any communications charges associated with accessing the Services (unless AlienVault specifies otherwise);
- Ensure that any access codes AlienVault provides are used only by Customer’s authorized personnel;
- Designate an AlienVault certified representative (a “Primary Technical Contact”) to be the focal point to whom AlienVault may direct general technical information pertaining to Customer’s Supported Products. Customer’s Primary Technical Contact must have sufficient technical knowledge of Customer’s Supported Product environment to enable effective communication with the AlienVault support center;
- Provide AlienVault with all relevant and available diagnostic information (including product or system information) pertaining to software problems for which Customer requests assistance;
- Provide AlienVault with appropriate remote access to Customer’s system if necessary to assist in isolating the software problem cause. Customer will remain responsible for adequately protecting the system and all data contained therein whenever it is remotely accessed by AlienVault with Customer’s permission;
- Use the information obtained under these Services only for the support of the information processing requirements within Customer’s enterprise;
- Ensure that Services are used only in relation to duly licensed Supported Products;
- Make reasonable efforts to correct any issue and deploy corrections after consulting with AlienVault;
- Promptly install all Maintenance Patches and Resolutions;
- Inform AlienVault promptly of any changes in hardware location.
8. Charges and Payment
A. Charges (“Support Fees”) for either or both Maintenance and/or Support Services during the Coverage Period, are invoiced in advance, or in the case of a renewal term, no later than the date of commencement of the applicable Coverage Period.
B. The Support Fees may vary, depending on, for example, the services engaged, the Coverage Period (Prime Shift or Full Shift) and the term of this Exhibit. Customer’s Support Fee is set forth in the Order Form and any renewal order form.
C. Any additional tasks derived from the Services beyond knowledge transmission, and not specified under Section 2, such as development, documentation, specific testing, etc., will be charged at AlienVault’s professional services rates and performed pursuant to the Consulting Exhibit or as mutually agreed in writing by the parties.
D. Maintenance Services and Support Services expire on termination of the AlienVault Professional SIEM License or otherwise in accordance with the corresponding Order Form.
E. For all replaced hardware, if the defective hardware is not returned to AlienVault within 15 days after receiving the replacement hardware, Customer will be invoiced for the replacement hardware at AlienVault’s then-current replacement price.
9. Support Service Levels
AlienVault will provide Support Services to Customer pursuant to following procedures.
A. AlienVault Online Support Center. The Customer has 24/7 access to AlienVault Support Center. AlienVault shall assign an Incident priority level to the request during Service Hours (Severity levels 1-4).
B. Support Call Logging. AlienVault shall acknowledge receipt of Support Calls by telephone or the same method that the Support Call was received with a tracking number, and with respect to Software Support, within the Support Response Times.
C. Software Support Response Times. Support for the Software is available during Service Hours with the following Support Response Times:
| Incident Priority | Support Response Time |
|---|---|
| Severity 1: prevents operation of the system | 4 Hours |
| Severity 2: significant reduction in specified functionality of the system | 8 Hours |
| Severity 3: minor reduction in specified functionality, but does not impede system operation in a normal manner | 24 Hours |
| Severity 4: minor bugs and errors that do not impede system operation in a normal manner | 36 Hours |
10. LIGHTSPEED REPLACEMENT
This section shall apply where Customer has purchased Lightspeed Replacement (“LSR”) under a valid Sales Order Form for the current term.
If Company confirms a material defect with the Hardware, AlienVault will ship replacement Hardware of like or better quality within two (2) business days. Customer is responsible for returning the defective Hardware to AlienVault within 14 days after receiving the replacement Hardware.
Lightspeed Replacement does not apply if one of the following conditions applies:
- Damage from external causes such as abuse, misuse or problems with electrical power
- Servicing of Hardware not authorized by AlienVault
- Usage that is not in accordance with Documentation or this Agreement
- Failure to follow the product instructions or failure to perform preventive maintenance
- Problems caused by using accessories, parts, or components not supplied by Company
- Products with missing or altered serial numbers
- Products for which AlienVault has not received payment
- Products that have been physically damaged
Hardware Refresh
- If Customer pays for more than three consecutive years of LSR, Customer will be eligible for a Hardware upgrade if the Hardware they currently use has become obsolete.
RMA Procedure
An RMA number is required for all returns. The procedure for swapping hardware is as followings:
- Open up a support ticket with AlienVault customer support
- Upon verification of the issue by AlienVault customer support, an RMA number will be issued
- AlienVault Customer Support will instigate the RMA procedure and deliver to Customer an RMA number via email provided that Customer has given all necessary information
- The equipment will be shipped and Customer will be notified with a tracking number. It is the responsibility of Customer to rack the replacement Hardware.
- The old Hardware will need to be sent back to AlienVault’s supply center. As such, a pre-paid label will arrive with the replacement Hardware which Customer will use to return the defective Hardware to AlienVault’s supply center.
Threat Intelligence Subscription Addendum
*This section shall apply to the extent that Customer has paid for the Threat Intelligence Subscription under a valid Sales Order Form for a current term.
1. SUBSCRIPTION
Subscription to the AlienVault Labs Threat Intelligence Subscription (“Subscription”) may include new or updated URL lists for content filtering and antiphishing products; firewall rules for firewall products; updated intrusion detection data for intrusion detection products; lists of authenticated web pages for website authentication products; policy compliance rules for policy compliance products; and vulnerability signatures for vulnerability assessment products, among other data feeds.
2. GRANT OF LICENSE; RESTRICTIONS
Subject to Customer’s compliance with the terms of this Addendum and Agreement, AlienVault hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to use, in conjunction with the Software, the Subcription as and when such data is made generally available to AlienVault’s customers who have purchased such Subscription and for such period of time as indicated in the pertinent Sales Order Form. This license does not by itself otherwise permit access and use of the Software. Customer shall only use the Subscription in conjunction with the Software. Customer shall not disclose, distribute or publicly communicate to any third-party any information contained in the Subscription. Customer shall not use or knowingly permit anyone to use the Subscription for any purpose or in any manner not authorized by this Addendum or for any unlawful purpose.
3. CUSTOMER RESPONSIBILITIES
Customer shall be responsible for, and shall bear all costs associated with, the receipt of the Subscription from AlienVault, whether directly through a TCP/IP or other method approved by AlienVault, including, without limitation, (i) obtaining the requisite quantity and quality of common carrier communication lines, (ii) ensuring the reliability and continued availability of such communications lines, and (iii) interfacing with the AlienVault system.
Customer will use its best efforts to configure and operate its communications network so that it remains at all times secure from unauthorized entry or interference and to prevent data feed Information from being taken from said communications network, or in any way communicated, divulged or published except through the channels of transmission authorized hereunder. Customer will adopt and enforce, as respects persons entering such place or places of business, reasonable requirements in order to prevent the Subscription from being improperly accessed from any of Customer’s offices or places of business.
4. OWNERSHIP
AlienVault shall retain sole and exclusive ownership and all right, title and interest (including, without limitation, all patent, copyright, trademark, and trade secret rights), now existing or hereafter coming into existence, in and to the Subscription and associated information. All rights not expressly granted hereunder are reserved by AlienVault.
5. DISCLAIMERS
ALIENVAULT DOES NOT WARRANT OR GURANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION AND ASSOCIATED DATA. THE SUBSCRIPTION AND ASSOCIATED DATA IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALIENVAULT DOES NOT WARRANT THAT THE SUBSCRIPTION AND ASSOCIATED DATA WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE AVFeed data feeds will operate in combinations with any particular hardware, software, systems, or data which Customer may select for use other than ALIENVAULT PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALIENVAULT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
The Subscription availability, data definition and data accuracy are all subject to change. The Subscription data is collected from various sources and will change over time without notice. AlienVault assumes no responsibility or legal liability for the accuracy, completeness, reliability, timeliness, or usefulness of such information. Furthermore, although AlienVault reasonably believes that making the information available for Customer is not an infringement or other violation of any third party’s intellectual property rights, AlienVault makes no warranty or guarantee as to the ownership of any intellectual property or other property interest contained in the information.