Software License and Services Agreement2018-11-28T13:11:05+00:00

This Bromium Software License Agreement (“Agreement”) is a legal agreement between you, either as an individual, company or other legal entity (in any capacity referred to herein as “End User”, “You” or “Your”) and Bromium, Inc., a Delaware corporation with offices at 20883 Stevens Creek Blvd. Suite 100 Cupertino, CA 95014 or any other Bromium affiliate (collectively “Bromium”).  If You are accepting this Agreement on behalf of Your company or organization, You represent that You are authorized to accept these terms on behalf of such company or organization. This Agreement governs your use of: (a) Bromium software, including updates and upgrades (“Software”), whether purchased as a perpetual license, a subscription offering, for evaluation, or a combination of the foregoing; (b) online, Internet-based enterprise controller or threat assessment services provided to users through use of Infrastructure (“Cloud Services”); (c) Bromium software and hardware used to provide Cloud Services to You over the Internet (“Infrastructure”); (d) user manuals or written instructions provided by Bromium to end users of the Software (“Documentation”); (e) Support Services, as defined in Exhibit A; and (f) professional services (“Professional Services”). Cloud Services, Support Services and Professional Services are collectively referred to as “Services.”

THE SOFTWARE, DOCUMENTATION, INFRASTRUCTURE AND SERVICES ARE PROVIDED BY BROMIUM AND CERTAIN THIRD PARTIES, SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, ANY REFERENCED THIRD PARTY AGREEMENTS AND ANY RIGHTS, OBLIGATIONS, AND LIMITATIONS SET FORTH HEREIN. BY OPERATING, DOWNLOADING, INSTALLING, REGISTERING OR OTHERWISE USING THE SOFTWARE, DOCUMENTATION AND SERVICES, YOU ARE EXPRESSLY AND EXPLICITLY ACKNOWLEDGING AND AGREEING THAT YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT OPERATE, DOWNLOAD, INSTALL, REGISTER, OPT-IN OR OTHERWISE USE THE SOFTWARE, DOCUMENTATION OR SERVICES.

  1. SOFTWARE AND DOCUMENTATION LICENSE.  Subject to the terms and conditions of this Agreement and the terms contained in the quote or other order document issued by Bromium, or an authorized reseller, and accepted by You (“Order”), Bromium hereby grants You a nonexclusive, worldwide, license to use the Software in executable code form, and Documentation for use in the course of Your business operations and for all Your own internal business purposes, including but not limited to processing Your own information and that of Your customers and clients as part of Your business (the “License”). The License includes specified rights with respect to certain open source software (“OSS”) and third party software (“Third Party Code”) to the extent Bromium is permitted to grant such rights. Your use of OSS under this Agreement shall at all times be subject to the terms of the license agreements set forth at https://www.bromium.com/opensource, and You may also access these license terms after installing the Software in the directory C:/Program Files/Bromium/vSentry/servers/about/about.html.
    1. Licensed Units.  The Licenses granted to You under this Agreement are limited to the number of licenses designated on the Order (“Licensed Units”). Bromium will collect information regarding the number of active licenses used by You and store this information in the cloud. If the number of Devices You have installed the Software on exceeds the Licensed Units, or if You wish to increase the number of Devices You have installed the Software onto, You shall notify Bromium and submit an Order for the incremental number of licenses. Fees due to Bromium for incremental Licensed Units will be based the then current price per Licensed Units, unless otherwise stated in Your Order. A “Device” is a single running instances of Software installed within a single operating system, whether physical or virtual. You may transfer your License to a new Device provided You do not exceed the total number of Licensed Units.
    2. Evaluation Software. Your License permits use of the Software and/or Cloud Services only for Your internal demonstration, test or evaluation purposes (“Evaluation Software”). Unless extended or converted to a perpetual or subscription license, Your License will terminate at the end of the evaluation period. Upon purchase of Evaluation Software, Your License term will be extended for the period set forth in the Order.
    3. Perpetual License. If the Order provides for a perpetual license, the Software is licensed on a perpetual basis and will commence on the date You are notified of availability of the Software for electronic download.
    4. Subscription License. If the Order provides for a Software subscription license, the Software is licensed for a specified period of time and includes Support Services for the licensed period (“Subscription Term”) and will commence on the date You are notified of availability of the Software for electronic download. To extend the Subscription Term, You must renew or purchase additional Licensed Units prior to the expiration of the current Subscription Term.
    5. Not for Resale. If the Software is “Not for Resale Software,” Your License permits use only if You are a current Bromium authorized distributor or reseller and then only for demonstration, test or evaluation purposes in support of Your customers or end users.
    6. Beta Materials.  If You are participating in a Beta Program, Your License permits you to use the Beta Materials (as defined in Section 12) for the purposes set forth in, and duration of, the applicable Beta Program.
  2. CLOUD SERVICE AND INFRASTRUCTURE LICENSE. Subject to the terms and conditions of the applicable Order, Bromium grants You a nonexclusive, nontransferable, nonsublicensable right to use the Cloud Services for Your internal business purposes as specified in the Order.
  3. RESTRICTIONS. You may not sublicense, assign or otherwise transfer this Agreement, the Software, Documentation, Services or any rights or obligations hereunder without prior written consent from Bromium. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties or obligations hereunder without such consent is void. The Software, Documentation and Services contain trade secrets, and in order to protect them, You may not decompile, reverse engineer or disassemble the Software, or otherwise reduce the Software to a human perceivable form. You may not modify, adapt, translate, lease, loan, resell for profit, distribute, or create derivative software based on all or any part of the Software. You may not permit a third party to use or access the Software, Documentation or Services, or operate the Software for or on behalf of any third party, including as a service accessed by a third party. You may not create, develop, or use any software or services to circumvent or otherwise gain access in a manner that would violate any technical restrictions on the Software. You may not use the Software, Documentation or Services for the purpose of determining performance information or analysis, or for competitive information or analysis (including, without limitation, any benchmarks, opinions, competitive or relative information, or results determined during such use) or disclose or publish such performance information or analysis, or competitive information or analysis without the prior written consent of an authorized Bromium official. You will promptly notify Bromium of any unauthorized disclosure, reproduction, or distribution of the Software or Documentation, which comes to Your attention, or which You reasonably suspect.
  4. PAYMENT.
    1. Fees. Your fees are stated in the applicable Order. Except as otherwise provided in the Order, Your fees will be Bromium’s current list price for Your Software and Services.
    2. Payment. Fees for subscription Software, Cloud Services and/or Support Services will be billed in advance as specified in the applicable Order. Subscriptions added during the Subscription Term will be pro-rated and billed for the remainder of the current Subscription Term. Fees for Professional Services will be billed as specified in the applicable Order. You will pay all amounts due and invoiced without the period specified in the invoice.
    3. Suspension of Subscription. In the event Your account is 10 or more days overdue, in addition to any of its other rights or remedies, Bromium reserves the right to terminate the subscription and applicable Software and/or Services.
    4. Taxes. All fees listed in the Order are exclusive of any taxes. You will be responsible for all taxes, including sales or use taxes, VAT, export or import taxes, excluding taxes on Bromium’s net income.
  5. TITLE AND OWNERSHIP. The original and any copies of the Software and Documentation, excluding OSS and Third Party Code, and accompanying documentation, in whole or in part, including translations, compilations, partial copies, modifications, enhancements, customizations, revisions, derivative works, updates, the Infrastructure, and the results of any Services, whether made pursuant to this Agreement or a separate statement of work (“SOW”) are the property of Bromium and are protected by United States and international copyright, patent, trade secret and other laws and treaty provisions. The License is not a sale and does not transfer to You any title or ownership interest in or to the Software, Documentation, Infrastructure, Services or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to the Software, Documentation, Infrastructure or Services. All right, title and interest in and to the Software, Documentation, Infrastructure and Services, excluding OSS and Third Party Code, remains with Bromium. The OSS and Third Party Code is subject to third party licenses and to the Warranty Disclaimer and Limitation of Liability set forth below. You may not remove, alter, or obscure any proprietary notices contained on or within the Software or Documentation and shall reproduce such notices on any back-up copy of the Software and Documentation.
  6. FEEDBACK. Any comments, ideas, or reports you provide to Bromium regarding the Software, Documentation, Evaluation Software, Beta Materials, or Beta Programs, or installation, functionality, performance, accuracy, consistency, and ease of use of Bromium’s software or services (“Feedback”) will be considered Bromium’s proprietary and confidential information, and you hereby irrevocably transfer and assign to Bromium all rights embodied in or arising in connection with such Feedback.  Bromium, in its sole discretion, may freely use all Feedback, without attribution or compensation to You.
  7. DELIVERY AND ACCEPTANCE. ALL SOFTWARE PROVIDED HEREUNDER WILL BE DELIVERED ELECTRONICALLY. Bromium provides evaluation licenses of its products for testing and pre-acceptance before purchase. Thus, all Software will be deemed to be delivered and accepted, meaning the Software operates in substantial conformity to the Documentation, upon transmission of a notice of availability for download and Your subsequent downloading, installing, operating, registering or otherwise using the Software.
  8. CONFIDENTIALITY. The Software, Documentation, Infrastructure, Services, and all information disclosed by Bromium to You hereunder or otherwise in connection with this Agreement, together with, for Evaluation Software and Beta Materials, all results of Your evaluation and participation in the Beta Programs (collectively “Confidential Information”), are confidential information of Bromium and shall not be disclosed by You to any third party. You shall only use the Confidential Information as expressly permitted by this Agreement, and in no other manner. You agree to take all necessary precautions to avoid disclosure and misuse of the Confidential Information. You shall promptly notify Bromium if You become aware of any breach of this confidentiality obligation and agree to remedy any such breach.
  9. CLOUD SERVICES. Each Cloud Service User must have a paid subscription. Cloud Service User subscriptions are for named users and cannot be shared or used by more than one user but may be transferred to new users from users who have terminated an employment or contracting relationship with you.
  10. PROFESSIONAL SERVICES.  Any Professional Services, training or other requirements not expressly included in an Order or separate SOW signed by the parties are outside the scope of this Agreement and will only be provided for additional fees. Fees for such items are payable as specified in the applicable Order and unless otherwise specified will be due upon receipt of invoice. Changes in any SOW will be effective only if a change order request is signed by both parties.
  11. SUPPORT SERVICES. Provided You have purchased Support Services for the Software, You will be entitled to receive the services outlined in the Maintenance Terms, attached as Exhibit A to this Agreement.
  12. BETA AND EARLY RELEASE PROGRAMS.  Bromium may invite You, or You may elect, to participate in Bromium’s beta or early release programs (collectively, the “Beta Programs”).  Beta Programs may require You to provide Feedback or other information to Bromium related to your use of the Software or Services, including Evaluation Software (collectively, the “Beta Materials”), and You agree to provide such Feedback or information.  Additional terms and requirements for Beta Programs may be communicated to you in writing, including by electronic mail.  Additionally, You will promptly respond to all survey requests or other requests for information related to your participation in the Beta Program.  In connection with Your participation in the Beta Programs, You agree to make use of then current version of the Beta Materials made available by Bromium to You.  Upon Bromium’s request, You agree to return or destroy, or cease use of, all Beta Material.  Beta Materials are provided without warranties or indemnities of any kind.
  13. CONSENT TO COLLECTION AND USE OF DATA. Bromium may collect personal information including Internet Protocol (IP) addresses or other unique identifier information associated with the Software and/or Services, including data You provide upon registering for a Bromium account. Bromium may also collect information regarding the number of active licenses used by You. This data will be used for providing Support Services and to ensure You have the appropriate number of licenses. If you have subscribed to Cloud Services, You may also submit information for threat assessment and or enterprise management services.  To the extent permitted by applicable law, by accepting these terms and conditions You consent that Bromium and its subsidiaries may collect and use both anonymous and personal data as described in this Agreement and as further described in Bromium’s privacy policy: https://www.bromium.com/legal/privacy.html.
  14. DATA PROTECTION.
    1. Definitions:
      1. “Applicable Privacy Law(s)” means all worldwide data protection and privacy laws applicable to the Personal Data in question, including all applicable US federal and state laws and, in respect of Personal Data originating from the European Economic Area, EU Directive 95/46/EC (as superseded, amended or replaced); and
      2. “Personal Data”, “processing”, “Controller” and “Processor” shall have the meanings given to them in Applicable Privacy Law(s). If and to the extent that Applicable Privacy Law(s) do not define such terms, then the definitions given in EU Directive 95/46/EC (as amended, superseded or replaced) will apply.
    2. If Bromium provides You with any support, threat cloud or cloud hosted Dashboard services as part of this Agreement, You may transfer, send or otherwise disclose files or other information containing Personal Data to Bromium in connection with a support request or submission of threats. In such cases, You are the Controller of the Personal Data and Bromium shall process the Personal Data as a Processor on Your behalf. Further, the parties agree that:
      1. You shall be responsible for compliance with Applicable Privacy Law(s) and ensuring You have the right to transfer, or provide access, to Bromium for these purposes;
      2. You shall be responsible for taking any steps You consider necessary to protect any Personal Data, such as by removing, obfuscating or encrypting, prior to sending it to Bromium;
      3. Bromium will process such Personal Data only for the purpose of providing the support services and in accordance with Your lawful instructions;
      4. Bromium shall have in place appropriate technical and organizational measures to protect the Personal Data it processes from any unauthorized or unlawful processing and against accidental loss, destruction or damage; and
      5. If You are sending Personal Data originating from the European Economic Area and wish to execute the standard contractual clauses for the transfer of Personal Data to Processors (as approved by the European Commission) and Bromium’s data processing addendum (“DPA”), Bromium will, upon Your request, provide and execute such standard contractual clauses and DPA.
  15. TERM AND TERMINATION. You may begin exercising the rights granted to You under this Agreement upon accepting the terms and conditions of this Agreement. You may continue to exercise the rights granted to You under this Agreement so long as You continue to comply with the terms and conditions of this Agreement. Notwithstanding the foregoing, Bromium reserves the right to terminate this Agreement and Your License, upon commercially reasonable notice, for Your failure to comply with any term or condition in this Agreement. You may terminate this Agreement at any time by providing Bromium with written notice and removing the Software, destroying the Software and certifying such destruction, or returning the Software to Bromium, including all copies of the Software and any associated documentation. Unless otherwise stated in this Agreement, any fees and payments paid by You to Bromium under this Agreement are not refundable, even if either party terminates this Agreement.
  16. SURVIVAL.  Those provisions regarding title and ownership, confidentiality, Feedback, warranty statement and disclaimer, and limitation of liability in this Agreement shall survive any termination.
  17. LIMITED WARRANTY STATEMENT AND DISCLAIMER.
    1. Limited Software Warranty. Bromium warrants that, for a period of ninety (90) days from the date You are notified the Software is available for download or, in the case of Evaluation Software purchased after the evaluation period, upon receipt of an invoice (“Warranty Period”), the Software licensed hereunder (including any upgrades and updates provided within the Warranty Period) will perform substantially in accordance with the applicable Documentation. Your exclusive remedy under this warranty shall be, at Bromium’s option, either: (i) repair or replacement of the Product that does not meet this limited warranty; or (ii) a credit in the amount of the price paid to Bromium for the Software, resulting in termination of this Agreement. Bromium also warrants that any Services will be performed consistent with accepted industry standards.
    2. Exclusion of Warranty. The above Limited Warranty will not apply if: (i) the Software is not used in accordance with this Agreement or the Documentation, (ii) the Software or any part thereof has been modified by any entity other than Bromium or (iii) a malfunction in the Software has been caused by any equipment or software not supplied by Bromium.
    3. Warranty Disclaimer. THE ABOVE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, OR WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.  IN ADDITION, WITHOUT LIMITATION, THERE IS NO WARRANTY OF QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE TO DESCRIPTION WITH REGARD TO THE SOFTWARE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BROMIUM, BROMIUM’S AUTHORIZED REPRESENTATIVES, OR ANY OTHER PARTY SHALL CREATE A WARRANTY OR AMEND THIS LIMITED WARRANTY. Some jurisdictions do not allow exclusions of implied warranties or conditions, so the above exclusion may not apply to You to the extent prohibited by such local laws. You may have other rights that vary from country to country, state to state, or province to province.
  18. INDEMNIFICATION.  Bromium, shall indemnify, defend, and, at its option, settle any claim, suit or proceeding brought against You based on an allegation that the Software infringes upon any patent or copyright of any third party (“Infringement Claim”), provided You promptly notify Bromium in writing of Your notification or discovery of an Infringement Claim such that Bromium is not prejudiced by any delay in such notification. Bromium will have sole control over the defense or settlement of any Infringement Claim, and You will provide reasonable assistance in the defense of the same. Following notice of any Infringement Claim, or if Bromium believes such a claim is likely, Bromium may at its sole expensive and option: (i) procure for You the right to continue to use the alleged infringing Software; or (ii) replace or modify the Software to make it non-infringing. Bromium assumes no liability for any Infringement Claims or allegations of infringement based on: (i) Your use of Software after notice that you should cease use of the same due to an Infringement Claim; (ii) any modification of the Software by You or at Your direction; or (iii) Your combination of the Software with other programs, data hardware or other materials, if such infringement Claim would have been avoided by the use of the Software alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM AND DOES NOT APPLY TO EVALUATION SOFTWARE OR BETA MATERIALS FOR WHICH THERE IS NO INDEMNITY.
  19. AUDIT. Bromium may, at its expense, upon reasonable prior written notice to You and during standard business hours, audit Your use of the Software no more than once each calendar year to assure compliance with the terms of this Agreement. If an audit reveals the You have underpaid fees to Bromium, You shall be invoiced for such underpaid fees based upon Bromium’s price list in effect at the time the audit is completed. The cost of the audit will be paid by You if the audit discloses that the amount of underpayment exceeds 5% of the amount due.
  20. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COST OF OBTAINING SUBSTITUTE GOODS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INFRINGEMENT INDEMNFICIATION, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BROMIUM, ITS SUPPLIERS, RESELLERS AND DISTRIBUTORS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEPT AS RELATED TO THE INDEMINIFICATION PROVISIONS OF THIS AGREEMENT, EXCEED THE AMOUNT OF MONEY PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
  21. U.S. GOVERNMENT RIGHTS.  The Software and Documentation are “commercial items” as that term is defined at FAR 2.101.  If You are the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Bromium provides the Software and Documentation, including any related technical data, and/or professional services in accordance with the following:  If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software),  only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement.  In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies.  Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement.  If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Bromium to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective.   If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for this Agreement, the Government agrees to terminate its use of the Software and Documentation and return the Software and Documentation and any other software or technical data delivered as part of the Software and Documentation, unused, to Bromium.  This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
  22. COMPLIANCE WITH LAWS.  Each party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering and/or using the Software, Documentation and Services. The Software, Documentation and any associated hardware, software, technology or services may not be exported, reexported, transferred or downloaded to persons or entities listed on the U.S. Department of Commerce Denied Persons List, Entity List of proliferation concern, or on any U.S. Treasury Department Designated Nationals exclusion list, any country under U.S. economic embargo, or to parties directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations. By accepting this Agreement You confirm that You are not: (i) located in (or a national resident of) any country under U.S. economic embargo; (ii) identified on any U.S. Department of Commerce Denied Persons List, Entity List or Treasury Department Designated Nationals exclusion list; and (iii) directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations.
  23. PRESS RELEASES. Except as prohibited by law or with respect to government organizations, Bromium may use Your or Your company’s name and logo in Bromium’s marketing program including use on Bromium’s company website, marketing literature, and in press releases.
  24. ASSIGNMENT. This Agreement may not be assigned by either of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld.  Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.
  25. ENTIRE AGREEMENT. This Agreement constitutes the final, complete, and exclusive understanding and agreement between Bromium and You relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, and communications, and/or advertising with respect to such subject matter. This Agreement cannot be amended, modified, or waived, unless done so in writing and signed by an authorized Bromium representative.
  26. SEVERABILITY. If any term or provision of this Agreement is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain valid and in full force and effect.  Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. Provisions herein, which by their nature extend beyond termination of the Software license, will remain in effect until fulfilled.
  27. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. Each Party agrees to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. If the Software was acquired outside the United States, then local law may apply.

EXHIBIT A

MAINTENANCE TERMS

These Maintenance Terms form part of the Agreement between You and Bromium and set forth the terms and conditions under which Bromium will Support Services to You pursuant to the Bromium maintenance plan purchased by You in relation to the Software.  Fees for Support Services shall be prepaid by You along with all applicable taxes, and are non-refundable.

In the event that You have licensed the Software and purchased Support Services through a Bromium-authorized reseller, You will be entitled to all the rights set forth in these Maintenance Terms for as long as Your maintenance payments are current.

  1. MAINTENANCE TERM AND FEES.  The term of your Support Services is for the period specified in the applicable Bromium order form.  At the end of the initial term (and each renewal term thereafter, if any), the Support Services will expire unless You renew the Support Services by paying Bromium, or the applicable reseller, the fees for Support Services.  Bromium may terminate Support Services if You fail to make pay the agreed fees for more than ten (10) days following written notice of delinquency. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of breach.
  2. MAINTENANCE UPDATES AND UPGRADES.  During the initial or a renewal term of the Support Services, Bromium will make any Update and Upgrade releases for the Software available to you, subject to Bromium’s End of Life policy set forth at https://support.bromium.com/s/article/Product-Support-and-End-of-Life-Policy-EOL (the “EOL Policy”).  An “Update” shall mean a generally available release of the same edition of the same Software that Bromium makes available from time to time.  An “Upgrade” shall mean a generally available release of the same Software that Bromium makes available from time to time that includes: (i) new editions of the Software that provide major enhancements to the features or functions, as determined by Bromium in its sole discretion; and/or (ii) new editions of the Software that provide additional features or perform additional functions.  Upgrades do not include new products that Bromium introduces and markets as distinct licensed products. Bromium may designate a particular release of the Software as an Update or an Upgrade in its sole discretion. Updates and Upgrades shall be considered part of the Software and subject to the teams and conditions of the applicable License Agreement.
  3. SOFTWARE DEFECTS. Bromium shall correct any defects or malfunctions in the Software or the Documentation discovered during the term of Your Support Services as per Bromium’s development schedule and the Priority Levels described below, subject to the EOL Policy. Bromium has no obligation to provide Support Services related to Errors, as defined below, that arise out of or results from: (1) modifications to Software made by you or a third party not authorized by Bromium; (2) Your operation or use of the Software other than as specified in the Documentation; (3) any End User failure, including failure to promptly install any Update or Upgrade; (4) continued use of a Software release after Bromium has recommended You install an Update or Upgrade; or (5) any material breach of the Agreement by You.
  4. TELEPHONE AND EMAIL SUPPORT.  Bromium will provide You with all reasonably necessary telephone and email consultation and support and instruction requested by You in connection with Your use and operation of the Software or any problems with the Software, as per the service levels described in Section 6 below and subject to the EOL Policy. You agree to provide Bromium with information regarding the Software problems, including transmission of certain diagnostic, technical, usage and related information and information about Your computers, systems, network and any third party software or hardware that may impact Your usage of the Software.
  5. NOTIFICATION OF ERRORS.  You will designate up to three (3) authorized employees/agents (or replacement individuals) (each a “Contact”) who are permitted to request Support Services under the Agreement and have access to Bromium’s Customer Support portal (https://support.bromium.com).  Each Contact will be knowledgeable about the Software. These Contacts may request Support Services by sending reports and queries to support@bromium.com.  Bromium may also provide to You a list of persons (in increasing positions of authority) and their telephone numbers (the “Calling List”) for You to contact to report an error. When reporting any Error, You shall provide the classification of the Error and a reasonably detailed explanation, together with underlying data, to substantiate the Error and to assist Bromium in its efforts to diagnose and correct the Error.
  6. SERVICE LEVELS.  Bromium shall provide You with the following Support Service levels:
    1. Classification and Resolution of Errors.  An “Error” is defined as a reproducible failure of the Software to performance in substantial conformity to the specifications in the Documentation, whose origin can be isolated to a single cause.  Errors are classified as follows:
      1. Priority 1 Error (Production Down).
        1. Definition.  Except for Bromium Enterprise Controller (BEC), a Priority 1 Error is any Error that renders You unable to use the Software on more than 50%, or 1,000 end points, whichever is lower, where it is installed, resulting in a critical impact to Your business operations.  For BEC, a Priority 1 Error is defined as any issue that renders BEC completely unusable.
        2. Key Deliverables.  In response to a Priority 1 Error, Bromium will immediately provide an appropriate resource and deliver a resolution. Unless otherwise agreed, Bromium will service Priority 1 Errors on a continual effort basis until the Error is resolved. Resolution of Priority 1 Errors may include temporary solutions, enabling Your business to operate until a more comprehensive solution is provided.  Priority 1 Error support requires: (1) Appropriate End User personnel are available 24×7 to work with the Bromium support analyst; and (2) End User system access and/or system information is available 24×7.  Your failure to provide the required resources will result in the Priority 1 Error being downgraded to a non-critical Error and will be serviced during Bromium’s normal business hours (“Normal Business Hours”).
      2. Priority 2 Error (Significant Business Impact).
        1. Definition.  A Priority 2 Error is any Error that renders the Software severely limited in its functionality, as specified in the Documentation, but still usable.  Components of a Priority 2 Error include:  (1) a critical component of the Software (e.g. security IE browsing) is not responding or producing error messages; (2) the issue is critical to Your business operations;
        2. Key Deliverables.  Priority 2 Errors will be serviced as critical during Normal Business Hours until the Error is resolved.  Priority 2 Error support requires: (1) Appropriate End User personnel are during Normal Business Hours to work with the Bromium support analyst; and (2) End User system access and/or system information is available during Normal Business Hours.
      3. Priority 3 Error (Limited Business Impact).
        1. Definition.  A Priority 3 Error is any Error that results in the Software being usable with some non-critical features of the Software being unavailable.  Components of a Priority 3 Error include:  (1) Issues that affect Your ability to meet upcoming deadlines; (2) Software components returning errors messages or not responding; (3) degraded Software performance is negatively impacting Your business operations
        2. Key Results.  Priority 3 Errors will be serviced during Normal Business Hours until the Error is resolved. Priority 3 Error support requires: (1) Appropriate End User personnel are during Normal Business Hours to work with the Bromium support analyst; and (2) End User system access and/or system information is available during Normal Business Hours.
      4. Priority 4 Error (Minimal Business Impact).
        1. Definitions.  A Priority 4 Error is any Error that is below Priority 3 and does not significantly impact Your business operations or for which a reasonable workaround has been implemented.  Components of a Priority 4 Error include:  (1) general questions such as “how-to” or syntax questions; (2) issues with little or no impact on Your business operations;
        2. Key Results.  Priority 4 Errors will be serviced as general issues during Normal Business Hours until the Error is resolved. Priority 4 Error support requires: (1) Appropriate End User personnel are during Normal Business Hours to work with the Bromium support analyst; and (2) End User system access and/or system information is available during Normal Business Hours.
    2. Initial Response Time and Coverage.
      1. Response Definitions. “Response Time” is the time between You reporting an issue to Bromium by opening a support ticket and the time in which a Bromium support analysis has responded to Your issue.
      2. Response Time.  Bromium shall use commercially reasonable efforts to respond to Your initial Error reports with off-site telephone consultation, assistance and advice in accordance with this Section 6.2.2. Bromium’s will respond to Your initial Error report either with; (1) a potential problem resolution, or (2) a request for more information that would permit Bromium to determine the next steps towards potential problem resolution.  If it is determined, at Bromium’s sole discretion, that the Error reported requires escalation within the Bromium development organization or requires extensive time to research the reported Error, Bromium will advise You of the potential time necessary to provide a potential workaround or a resolution.  Bromium’s response times to Your initial Error reports and coverage hours for actively working an Error are as follows:
        Error LevelInitial Response TimeCoverage Hours
        Priority 1 Error4 Hours24 hours, 7 days a week
        Priority 2 Error12 Hours3 AM to 8 PM, Eastern, Monday to Friday
        Priority 3 Error1 Day3 AM to 8 PM, Eastern, Monday to Friday
        Priority 4 Error1 Week3 AM to 8 PM, Eastern, Monday to Friday
  7. END USER’S OBLIGATIONS.
    1. Contact Person(s).  You will provide Bromium with a list of Contacts as specified in Section 5 above. Bromium is not responsible for Your failure to update your Contacts as may be necessary.
    2. Supporting Data.  You will provide reasonable supporting data to aid in the identification and resolution of the issue.
    3. Installation.  You will be responsible for installing any error correction, Update or, if applicable, Upgrade.
    4. Current Release. Unless otherwise agreed, You will to run the current release of the Software. Bromium will provide support for the current and two previous releases of the Software.
    5. EOL Policy.  You acknowledge and agree that Bromium’s obligations are subject to the EOL Policy.
  8. TRANSFERRING MAINTENANCE.  Support Services may not be transferred or assigned without Bromium’s express written approval and, in any event, may only be transferred or assigned along with the Software and the applicable Agreement.

See Bromium in Action

Put an end to malware and attacks once and for all. Request a demo of the Bromium Secure Platform to learn how Bromium uses virtualization-based security to isolate applications and stop threats. Complete the form to request a demo.

Thank you! The information has been submitted successfully.
Share
Tweet
Share

By continuing to use the site, you agree to the use of cookies. More information

The cookie settings on this website are set to "allow cookies" to give you the best browsing experience possible. If you continue to use this website without changing your cookie settings or you click "Accept" below then you are consenting to this.

Close