The Hardware Maintenance and Support Terms and Conditions incorporate by reference the terms and conditions of the End User License Agreement.

 

1.      HARDWARE REPLACEMENT

If Bricata confirms there may be a basis for return of a Supported Product during the Service Period resulting from a Hardware Defect, Bricata will implement a process, on consultation with End User, for shipment of the replacement Supported Product within two business days of the date that Bricata confirms all necessary detail. No shipments to Bricata shall be made without confirmation received from Bricata after End User sends necessary details to support@bricata.com. Bricata may request further details of End User prior to requesting shipment. All costs of shipments to Bricata are at the End User’s expense and, in the event that there was a Hardware Defect, from Bricata are at Bricata’s expense If, after Bricata’s receipt of the Supported Product, it is determined by Bricata that there is no Hardware Defect, then Section 8(B) shall apply.

2.      MEANS OF PROVIDING THE MAINTENANCE AND SUPPORT SERVICES

Bricata will provide the Services by remote assistance. Remote assistance will be by telephone or email. Many types of cases where troubleshooting is involved benefit from the use of remote screen-sharing via WebEx (used by Bricata), or the End User’s program of choice. Except in the case of emergencies, requests for Services must be made to Bricata by sending an email to support@bricata.com. In response to requests, support technicians will respond via email or phone.

3.      RESPONSE CRITERIA

Bricata’s initial response may result in a request for additional information to form the basis for determining initial troubleshooting steps. For requests received during the coverage period, Bricata will use commercially reasonable efforts to respond within four hours, and with a goal of 1 hour if the issue is identified as a potential severity one or two defect. For requests received outside of the coverage period, Bricata will use commercially reasonable efforts to respond within two hours of the start of business on the next business day. Bricata is not responsible for delays in response delivery outside of these hours or those caused by systems and network problems.

The goal of the response is to establish those details of the End User report of the situation, problem, or conditions that will allow for Resolution.

4.      MAINTENANCE PATCHES AND UPGRADES/UPDATES

Patches may be provided to resolve a specific customer’s issue, based on a specific report/request from that customer. Maintenance Releases and Upgrades/Updates available to the End User as they become generally available.

5.      END USER RESPONSIBILITIES

End User agrees to:

  • Ensure that any access codes or passwords Bricata provides are used only by End User’s authorized personnel;
  • Designate a technically qualified representative (a “Primary Technical Contact”) to be the focal point to whom Bricata may direct general technical information pertaining to End User’s Supported Products for each location. End User’s Primary Technical Contact and each caller should have sufficient technical knowledge of End User’s Supported Product environment to enable effective communication with the Bricata support center;
  • Provide Bricata with all relevant and available diagnostic information (including product or system information) pertaining to software problems for which End User requests assistance or which Bricata requests during troubleshooting on the part of Bricata;
  • Provide Bricata with appropriate remote access to End User’s Bricata provided systems;
  • Use the information obtained under these Maintenance Services and those provided under the Agreement only for the support of the information processing requirements within End User’s enterprise;
  • Ensure that Maintenance Services are used only in relation to the scope outlined in the Agreement;
  • Make reasonable efforts to correct any issue and deploy corrections upon agreement based on recommendations from Bricata;
  • Maintain a backup of all Appliance configuration and stored data; and
  • Inform Bricata promptly of any changes in hardware location, POC or physical damage to the appliance.

6.      EFFORTS OUTSIDE SCOPE

  1. Any additional tasks derived from the Services beyond knowledge transmission, and not specified under Section 2 or the Agreement, such as development, documentation, specific testing, etc., will be charged at Bricata’s professional services rates and performed pursuant to a Consulting Exhibit unless mutually agreed otherwise in writing by the parties.
  2. For all replaced hardware, where Bricata has shipped a replacement in advance of its receipt of the Appliance with the Hardware Defect. If the original Appliance is not returned to Bricata within 150 days (from North America locations or a reasonable time given customary shipping issues from other continents) after receiving the replacement hardware, End User will be invoiced for the replacement hardware at Bricata’s then-current replacement price.

7.      NOTICES AND COMMUNICATIONS:

Written communications, including notices to a party’s designated representative, are to be sent to the email address set out in the Agreement.

8.      TERMINATION AND WITHDRAWAL

  1. In addition to the terms and conditions in the End User License Agreement, Bricata may at its option suspend or terminate its performance of Maintenance immediately on notice at any time if End User is in material breach herein or if End User fails to comply with the End User License Agreement.
  2. Bricata may cease providing Maintenance Services in their entirety generally to its End User on six months’ written notice to End User by letter or e-mail. If Bricata cease providing Maintenance Services End User as provided in this Section, Bricata will provide a pro-rated refund for the period after the effective date of termination. Any terms of this Exhibit which by their nature extend beyond the Exhibit termination or withdrawal remain in effect in accordance with their terms.

9.      WARRANTY AND WARRANTY DISCLAIMERS

Bricata warrants that:

  1. Replacement Hardware will materially conform to the documentation for a period of thirty (30) days the lesser of its original warranty or 365 days;
  2. The foregoing warranties do not apply to: (i) consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship; (ii) cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (iii) damage caused by accident, abuse, misuse, neglect or failure to properly maintain (including but not limited to water damage and/or condensation or improper temperatures during storage), or improper installation; (iv) damage caused by electrical disturbances or acts of God, including but not limited to civil disturbance, war, flood, fire, rodents or insects; (v) where manufacturer’s serial numbers have been removed from the hardware; and (vi) damage caused during shipment (due to End User’s improper packaging) from End User to Bricata in the case of hardware returns for repair.
  3. The foregoing warranties are voided immediately if repair, modification (including Upgrades/Updates, expansions of usage or addition of non-manufacturer parts or accessories), alteration or other service is attempted other than by Bricata or under its instruction. In this regard, the integrity of the appliance casing (a/k/a “the box”) should not be violated for any reason, unless expressly authorized by Bricata in writing.
  4. The foregoing warranties are voided immediately if repair, modification (including Upgrades/Updates, expansions of usage or addition of non-manufacturer parts or accessories), alteration or other service is attempted other than by Bricata or under its instruction. In this regard, the integrity of the appliance casing (a/k/a “the box”) should not be violated for any reason, unless expressly authorized by Bricata in writing. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAINTENANCE SERVICES (INCLUDING THE BTX FEED) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. BRICATA DOES NOT WARRANT THAT THE MAINTENANCE SERVICES (INCLUDING THE BTX FEED) WILL MEET END USER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE HARDWARE OR ANY NETWORKS OR SYSTEMS PROTECTED BY THE HARDWARE WILL BE FREE FROM VULNERABILITY, DATA LOSS, INTRUSION, ATTACK, OR OTHER DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRICATA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

10.    DEFINITIONS:

“Hardware Defect”: A failure of a hardware system or component of the Supported Product which is deemed to make the Product not compliant with the product specifications.

“Patch(es)”: A software change delivered outside of the normal release process to correct a specific issue.

“Resolution”: Either a modification or addition that, when made or added to the Supported Product, addresses a Supported Incident; or a work-around, procedure or routine that, when observed in the regular installation or operation of the Appliance, mitigates the practical adverse effect of such Supported Incident on End User; 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, to conform to the Product Specifications set forth at bricata.com/data_sheet relating to that version of the Supported Product, resulting in the inability to use, or material restriction in the use of, the Supported Product.

“Supported Products”: Bricata Hardware Appliances, during the term of any Maintenance and Support Services, as provided in an Order Form.

“Upgrade/Update”: A revision or change of version of the Supported Product, made generally available by Bricata to its end user End Users generally. A version change may include new and different functionality or an increase in the capacity of the current Product. An Upgrade or Update does not include different products or services or any additional third party components or modules, which may be licensed or priced separately. Upgrading to a new version may or may not require professional services in relation to End User’s system, which is not included in this Exhibit and is subject to further charges. Upgrades are denoted by changes to the version number to the right of the final decimal point (The X or Y in an X.Y.Z release number).

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