|
resumption of Professional Services may be delayed if FireEye redeploys personnel to other engagements during
<br />the period of suspension.
<br />12.2. Termination for Material Breach. Either party may terminate any Order or any SOW upon written
<br />notice of a material breach of the applicable Order or SOW by the other party as provided below, subject to a
<br />thirty (30) day cure period ("Cure Period"). If the breaching party has failed to cure the breach within the Cure
<br />Period after the receipt by the breaching party of written notice of such breach, the non -breaching party may
<br />give a second notice to the breaching party terminating the applicable Order or SOW. Termination of any
<br />particular Order or SOW under this Section will not be deemed a termination of any other Order or SOW, unless
<br />the notice of termination states that another Order or SOW is also terminated. Notwithstanding the foregoing,
<br />the Cure Period applicable to a breach by Customer of any payment obligations under any Order or any SOW
<br />will be fifteen (15) days. Notwithstanding the foregoing, this Agreement shall terminate automatically in the event
<br />Customer has breached any license restriction and, in FireEye's determination, that breach cannot be
<br />adequately cured within the Cure Period.
<br />12.3. Effect of Termination. Termination or expiration of any Order or SOW will not be deemed a
<br />termination or expiration of any other Orders or SOWS in effect as of the date of termination or expiration, and
<br />this Agreement will continue to govern and be effective as to those outstanding Orders and SOWS until those
<br />Orders and SOWS have expired or terminated by their own terms or as set forth herein. The provisions of Section
<br />3 (Payment), Section 6 (Intellectual Property), Section 7.5 (Disclaimer of Warranties), 9 (Limitation of Liability), 10
<br />(Export Control; Anti -Corruption; U.S. Government Restricted Rights), 12 (Confidential Information), and 13
<br />(Miscellaneous), and all accrued payment obligations, shall survive the termination of all Orders and SOWS and
<br />the relationship between FireEye and Customer.
<br />13. MISCELLANEOUS.
<br />13.1. Assignment. Customer may not assign any Order or Statement of Work, or any rights or obligations
<br />thereunder, in whole or in part, without FireEye's prior written consent, and any such assignment or transfer shall
<br />be null and void. FireEye shall have the right to assign all or part of an Order or Statement of Work without
<br />Customer's approval. Subject to the foregoing, each Order and Statement of Work shall be binding on and inure
<br />to the benefit of the parties' respective successors and permitted assigns.
<br />13.2. Entire Agreement. This Agreement along with any Order, Statement of Work and the Exhibits
<br />attached hereto is the entire agreement of the parties with respect to the Offerings and supersedes all previous
<br />or contemporaneous communications, representations, proposals, commitments, understandings and
<br />agreements, whether written or oral, between the parties regarding the subject matter thereof. FireEye does not
<br />accept, expressly or impliedly and FireEye hereby rejects and deems deleted any additional or different terms or
<br />conditions that Customer presents, including, but not limited to, any terms or conditions contained or referenced
<br />in any order, acceptance, acknowledgement, or other document, or established by trade usage or prior course
<br />of dealing. This Agreement may be amended only in writing signed by authorized representatives of both parties.
<br />13.3. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any
<br />obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen
<br />events, which occur after the signing of this Agreement and which are beyond the reasonable control of the
<br />parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or
<br />other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its
<br />obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
<br />13.4. Governing Law. This Agreement shall be deemed to have been made in, and shall be construed
<br />pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions
<br />thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform
<br />Computer Information Transactions Act. Any legal suit, action or proceeding arising out of or relating to the
<br />Offerings, the FireEye Materials, this Agreement, an Order or a Statement of Work will be commenced exclusively
<br />in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each
<br />party hereto irrevocably submits to the jurisdiction and venue of any such court in any such suit, action or
<br />proceeding.
<br />Confidential FireEye Rev. 8/2016
<br />Page 10
<br />
|