|
7.4. Remedies Exclusive. Except for any Service Level Credits described in Exhibit B, the remedies
<br />stated in Sections 7.1-7.3 above are the sole remedies, and FireEye's sole obligation, with respect to Products,
<br />Subscriptions and Services that fail to comply with the foregoing warranties.
<br />7.5. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS,
<br />SUBSCRIPTIONS, FIREEYE MATERIALS, DELIVERABLES AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT
<br />ANY WARRANTY WHATSOEVER. FIREEYE AND ITS SUPPLIERS EXPRESSLY DISCLAIM, TO THE MAXIMUM EXTENT
<br />PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT
<br />LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY,
<br />NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. FIREEYE ALSO
<br />MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO
<br />WARRANTY THAT PRODUCTS, FIREEYE MATERIALS, DELIVERABLES, SERVICES OR SUBSCRIPTIONS WILL BE ERROR -FREE.
<br />8. INFRINGEMENT INDEMNITY.
<br />8.1. FireEye shall defend Customer, and its officers, directors and employees, against any third party
<br />action alleging that the FireEye Materials infringes a valid U.S. patent or copyright issued as of the date of delivery
<br />or performance, as applicable, and FireEye shall pay all settlements entered into, and all final judgments and
<br />costs (including reasonable attorneys' fees) finally awarded against such party in connection with such action.
<br />If the FireEye Materials, or parts thereof, become, or in FireEye's opinion may become, the subject of an
<br />infringement claim, FireEye may, at its option: (i) procure for Customer the right to continue using the applicable
<br />FireEye Materials; (ii) modify or replace such FireEye Materials with a substantially equivalent non -infringing FireEye
<br />Materials; or (iii) require the return of such FireEye Materials or cease providing affected Product, Subscriptions,
<br />Deliverables or Services, and refund to Customer, with respect to Products, a pro-rata portion of the purchase
<br />price of such Products based on a three-year straight line amortization of the purchase price, and with respect
<br />to Subscriptions, a portion of any pre -paid Fees for such Subscriptions, pro rated for any unused Subscription Term,
<br />and with respect to Services, any pre -paid Fees for Services that have not been delivered. THIS SECTION 8.1
<br />STATES THE ENTIRE LIABILITY OF FIREEYE AND CUSTOMER'S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF
<br />INTELLECTUAL PROPERTY RIGHTS BY THE OFFERINGS, FIREEYE MATERIALS, OR DELIVERABLES.
<br />8.2. FireEye shall have no indemnification obligations with respect to any action arising out of: (i) the
<br />use of any Product, Subscription, Deliverable, or Service, or any part thereof, in combination with software or
<br />other products not supplied by FireEye; (ii) any modification of the Products, Subscriptions, Deliverables, or
<br />Services not performed or expressly authorized by FireEye; or (iii) the use of any the Products, Subscriptions,
<br />Deliverables, or Services other than in accordance with this Agreement and applicable Documentation.
<br />8.3. The indemnification obligations shall be subject to Customer: (i) notifying FireEye within ten (10)
<br />days of receiving notice of any threat or claim in writing of such action; (ii) giving FireEye exclusive control and
<br />authority over the defense or settlement of such action; (iii) not entering into any settlement or compromise of
<br />any such action without FireEye's prior written consent; and (iv) providing reasonable assistance requested by
<br />FireEye.
<br />9. LIMITATION OF LIABILITY.
<br />9.1. Consequential Damages Waiver. EXCEPT FOR LIABILITY ARISING UNDER A BREACH OF ANY
<br />INTELLECTUAL PROPERTY RIGHT OF FIREEYE, OR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8
<br />(INFRINGEMENT INDEMNITY), IN NO EVENT WILL FIREEYE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
<br />OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS,
<br />HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY,
<br />NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT FIREEYE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
<br />DAMAGES.
<br />9.2. Limitation of Monetary Damages. EXCEPT FOR LIABILITY ARISING UNDER A BREACH OF ANY
<br />INTELLECTUAL PROPERTY RIGHT OF FIREEYE, PAYMENT OBLIGATIONS OF CUSTOMER, AND THE INDEMNIFICATION
<br />OBLIGATIONS SET FORTH IN SECTION 8 (INFRINGEMENT INDEMNITY), AND NOTWITHSTANDING ANY OTHER
<br />PROVISIONS OF THIS AGREEMENT OR ANY ORDER OR STATEMENT OF WORK, FIREEYE'S TOTAL LIABILITY ARISING OUT
<br />OF THIS AGREEMENT, THE OFFERINGS, THE FIREEYE IP AND DELIVERABLES SHALL BE LIMITED TO THE TOTAL AMOUNTS
<br />Confidential FireEye Rev. 8/2016
<br />Page 6
<br />
|