Imperva: Protecting the Data that Drives Business Blog|Login|Chinese German Japanese|Follow @imperva
Imperva
END USER LICENSE AND SERVICES AGREEMENT
BY CLICKING ON THE "ACCEPT" BUTTON, TAKING AN ACTION TO INDICATE ACCEPTANCE, OR USING THE PRODUCTS (AS DEFINED BELOW) END USER AGREES TO THE TERMS OF THIS END USER LICENSE AND SERVICES AGREEMENT ("AGREEMENT") WITH IMPERVA, INC. ("IMPERVA"). IF END USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON, DISCONTINUE THE SET-UP AND INSTALLATION OR DISCONTINUE USE OF THE PRODUCT. IF THE TERMS OF THE AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IMPERVA MAY MODIFY OR AMEND THIS AGREEMENT AT ANY TIME AND MAY PROVIDE NOTICE OF SUCH CHANGES BY POSTING A REVISED AGREEMENT AT HTTP://WWW.IMPERVA.COM/OTHER/LICENSE_AGREEMENT.ASP. YOUR CONTINUED USE OF SERVICES WILL CONSTITUTE YOUR ACCEPTANCE OF ANY SUCH CHANGES.
  1. Definitions. The following capitalized terms shall have the meanings set forth below:
    1. "Appliance" means the Imperva branded computer hardware on which the Software operates.
    2. "Delivery" shall mean, (i) in the case of Software, when the Software is made available by Imperva for End User to electronically download; (ii) in the case of Services, when the Service has been provisioned and made available to End User to access; and (iii) in the case of an Appliance, when the Appliance has been tendered by Imperva for shipment.
    3. "Documentation" means Imperva's technical specifications that accompany and describe the installation, use and operation of a Product.
    4. "End User" means the party that has purchased the Products for its own use, either directly from Imperva or through an authorized third party.
    5. "Licensed Volume" means the volume or other measurement of permitted use for the Products as agreed to by Imperva.
    6. "Open Source Software" means third party software that Imperva distributes with the Software pursuant to a license that requires, as a condition of use, modification and/or distribution of such software, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
    7. "Product" mean Appliances, Software or Services as the case may be.
    8. "Software" means Imperva's or its licensors' software (in object code format) or content, any updates or upgrades thereto provided to End User by Imperva and any Documentation pertaining thereto. Software may be delivered to End User on Appliances or on a standalone basis. Software does not include any Open Source Software.
    9. "Services" means the subscription services, including content, updates and upgrades thereto, offered by Imperva or that may be made available to End User by Imperva directly or through its partners and suppliers. Services include, without limitation, the ThreatRadar service and Imperva offered services that are "powered by Incapsula."
    10. "Support and Maintenance"means the technical support services for the Product and periodic bug fixes and updates that Imperva may make generally available at an annual subscription cost to other end users.
    11. "Professional Services" means the installation and configuration services that Imperva may provide to an End User.
  2. Licenses and Restrictions.
    1. Software. Subject to the terms and conditions of this Agreement, Imperva grants End User a nonexclusive, nontransferable, nonsublicensable license to use the Software only for End User's internal business purposes on the Appliances or in the Licensed Volume licensed by End User. If End User purchases Software on a standalone basis, the license granted herein shall include the right to copy the Software up to the Licensed Volume.
    2. Services. Subject to the terms and conditions of this Agreement, Imperva grants End User a nonexclusive, nontransferable, nonsublicensable, revocable license to use and access the Services only for End User's internal business purposes.
    3. Restrictions. End User may not (and may not permit any third party to): (i) modify, incorporate or use in any other works, translate, reverse engineer (except to the limited extent applicable statutory law expressly prohibits reverse engineering restrictions), decompile, disassemble, otherwise attempt to derive source code from or create derivative works based on the Products; (iii) make unauthorized copies of the Products; (iv) disclose, distribute, transfer or market the Products to third parties; (v) remove or modify any proprietary notices, labels or marks on or in any copy of the Products; (vi) distribute, sell, sublicense, rent, lease or use the Products (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Software available to third parties; (vii) publicly disseminate performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Products; (viii) access the embedded database or any other third party product as part of the Software with applications other than the Software; or (ix) use the Products other than as permitted herein.
  3. Support and Maintenance. Provided End User has an active and fully paid contract for Support and Maintenance, Imperva will provide Support and Maintenance in accordance with its standard Support and Maintenance terms then in effect.
  4. Additional Terms for Services.
    1. Accessing Services. Except as explicitly set forth herein, End User is solely responsible for acquiring and maintaining all of the equipment, software, services and items necessary to access and make use of the Services, including without limitation paying all charges, taxes, and other costs and fees related to the Internet access. End User may access the Services only through the interfaces and protocols provided or authorized by Imperva and its partners and agrees to set-up, maintain and use the Services in strict compliance with Imperva's and its partners' instructions. End User is solely responsible for maintaining the confidentiality of any passwords and account information required to access Services, for all acts that occur in connection with End User's account and to immediately notify Imperva of any unauthorized use of End User's account. In the event of expiration or termination of any Services that require DNS routing, End User will be solely responsible for rerouting its DNS traffic and Imperva, its partners and suppliers shall have no liability for End User's failure to do so.
    2. Authorization. Certain Services are offered to cache, serve, monitor and optimize web pages and web sites. As such, End User hereby grants Imperva and its partners a nonexclusive, worldwide, fully paid-up, royalty-free license to use, host, transfer, display, make available to the public, modify and otherwise exploit the content and material on End User websites ("End User Content"), in any media formats, solely for the purpose of providing of the Services. Imperva and its partners do not provide backup services for End User Content and if End User's use of the Services terminates for any reason, Imperva and its partners may, without notice, delete or deny End User access to any of content or meta data that may remain in its/their possession or control. In addition, End User agrees that if, at Imperva's and its partners' sole discretion, End User is using the Services in a manner that violates laws, rules or regulations or creates an excessive burden or potential adverse impact on Imperva's, its partners' or its suppliers' systems, business or customers, Imperva, its partners or its suppliers may suspend or terminate End User's access to the Services without notice to or liability to End User.
  5. Professional Services. Professional Services, if any, to be provided by Imperva to an End User will be subject to a separate a statement of work ("SOW") agreed to by Imperva and Imperva's standard Professional Services terms then in effect.
  6. Fees, Payment Terms. End User shall pay Imperva (or its authorized reseller) the applicable fees designated by Imperva (or its authorized reseller). Overage fees may apply if End User exceeds its allowance for any Product at Imperva's then-current overage rates. Information regarding overage rates is provided at http://www.imperva.com/products/wsc_cloud-web-application-firewall.html. Any fees payable to Imperva are non-refundable and payable in US Dollars. End User shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against End User, except for taxes on Imperva's income. Fees shall be invoiced as follows: (a) fees for all Services and Support and Maintenance shall be invoiced in advance of the applicable Service or Support and Maintenance period, (b) fees for Software licenses and Appliance purchases will be invoiced upon Delivery. Title to Appliances and risk of loss shall pass to End User upon Delivery and Products shall be deemed accepted by End User upon Delivery. All payments from End User to Imperva are due net thirty (30) days of date of receipt of invoice. If End User's account for Services and Maintenance and Support Services is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Imperva reserves the right to suspend the Services provided to End User, without liability to End User, until such amounts are paid in full. Imperva shall have the right to conduct and/or direct an independent accounting firm to conduct, during normal business hours, an audit of End User's facilities, computers and records to confirm End User's use of Products is in compliance with this Agreement. End User shall provide reasonable cooperation with any such audit.
  7. Confidentiality; Privacy. End User agrees to hold confidence, during the term of this Agreement and for three (3) years after the termination hereof, any and all confidential and proprietary information of Imperva and its partners (the "Confidential Information"). Confidential Information includes, without limitation, the Products, their performance (including any benchmarking information) and Imperva's pricing of the Products. End User agrees not to use the Confidential Information except as necessary to fulfill its obligations or exercise its express rights hereunder, and not to disclose the Confidential Information to any person (other than End User's personnel having a need to know) without the prior written consent of Imperva. Without granting any right or license, Imperva agrees that the foregoing shall not apply with respect to any information that End User can document (i) is or becomes (through no improper action or inaction by End User or any affiliate, agent, consultant or employee of End User) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from Imperva. End User may make disclosures required by law or court order provided End User uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows Imperva to participate in the proceeding.

    End User acknowledges, understands and agrees that Imperva will, as part of its provision of the Product, Support and Maintenance and/or Professional Services to End User, collect, store and use information obtained from End Users, including, but not limited to, information about End Users' users and customers ("Information") for the purposes of (i) provision of the Product, Support and Maintenance, Professional Services and other services to End User and (ii) analysis and improvement of Imperva's products and services including, but not limited, to the Products. End User represents and warrants that it has all rights and permissions necessary to grant Imperva access to such Information as contemplated herein.
  8. Proprietary Rights. All title and intellectual property rights in and to the Products and Confidential Information is owned exclusively by Imperva and its partners and suppliers. Other than as expressly set forth in this Agreement, no license or other rights in or to the Products and intellectual property rights thereto are granted to End User, and all such licenses and rights are hereby expressly reserved.
  9. Warranty and Disclaimer.
    1. Imperva warrants that during the sixty (60) day period commencing on the date of first Delivery, the Software and the Appliances will perform materially in accordance with their Documentation. In the event of a breach of the foregoing warranty with respect to the Software, as End User's sole and exclusive remedy, Imperva shall, at its sole expense, use reasonable efforts to modify the Software, so that it performs materially in accordance with its Documentation. In the event of a breach of the foregoing warranty with respect to an Appliance, as End User's sole and exclusive remedy, Imperva shall, at its sole expense and at its option, repair the Appliance or replace the Appliance with a new or reconditioned Appliance that performs materially in accordance with its Documentation. The foregoing warranty extends only to the original purchaser and will not apply to the misuse of or damage to the Products. The rights and remedies granted End User under this Section state Imperva's entire liability, and End User's exclusive remedy, with respect to any breach of the warranty set forth in this Section 9(a).
    2. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9(a), THE PRODUCTS, THE SUPPORT AND MAINTENANCE SERVICES OR THE PROFESSIONAL SERVICES ARE PROVIDED "AS IS' AND IMPERVA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. IMPERVA, ITS PARTNERS AND SUPPLIERS MAKE NO WARRANTY THAT USE OF THE PRODUCTS, THE SUPPORT AND MAINTENANCE SERVICES OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR DEFECT-FREE, OR AVAILABLE AT ALL TIMES. IMPERVA HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  10. Limitations of Liability. IN NO EVENT WILL IMPERVA'S (AND ITS PARTNERS' OR SUPPLIERS') LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS TO BE PAID BY END USER FOR THE PRODUCT OR SERVICE AT ISSUE. IN NO EVENT SHALL IMPERVA (OR ITS PARTNERS' OR SUPPLIERS') HAVE ANY LIABILITY TO END USER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR USE, INTERRUPTION OF THE SERVICES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  11. Term and Termination.
    1. The term of this Agreement will commence upon Delivery of the Products to End User and will continue in effect for such time as End User continues to have the right to access the Products. Support and Maintenance for Software and/or Appliances will automatically renew at the end of the applicable Support and Maintenance term unless either party gives the other at least thirty (30) days notice of non-renewal prior to the end of the then current term.
    2. Either party may terminate this Agreement due to a material breach of this Agreement by the other party if such material breach remains uncured for a period of thirty (30) days following receipt of written notice by the breaching party; provided that Imperva may terminate this Agreement and/or all licenses granted to End User hereunder immediately upon written notice to End User if End User breaches any provision of Section 2 (License & Restrictions), Section 4 (Additional Terms for Services) or Section 7 (Confidentiality). In addition, Imperva may terminate any trial, evaluation or demonstration rights granted to End User at any time, with or without notice.
    3. c. Upon the earlier of expiration of End User's rights or termination of the Agreement, Imperva will cease providing Services, Support and Maintenance and Professional Services, and each party shall promptly return or destroy the other party's Confidential Information. Termination shall not relieve End User of the obligation to pay any fees accrued or payable to Imperva prior to the effective date of expiration or termination. The following sections shall survive termination of this Agreement: Sections 2(c), 4, 6 -13, and 15.
  12. US Government End User. For purposes of this Agreement, "commercial computer software" is defined at FAR 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government End User Section 12 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
  13. Compliance With Laws; Export. End User acknowledges that the Software contains encryption technology that is subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. End User will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency thereof restricts export or re-export to such countries); (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. End User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government. End User agrees to indemnify and hold Imperva, its partners and suppliers harmless against any claims, losses or expenses arising out of End User's breach of this Agreement or use of the Products.
  14. End User Mention. End User consents to Imperva using its name and logo to identify End User as a customer of Imperva, such as use on Imperva's website. Any use shall be subject to Imperva complying with any guidelines that End User may deliver to Imperva from time-to-time regarding the use of its name and logo. This consent terminates upon termination of the Agreement.
  15. Force Majeure.Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
  16. Miscellaneous Provisions. The parties are independent contractors under this Agreement and nothing in this Agreement authorizes a party to act as an agent of the other or bind the other to any transaction or agreement. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign or transfer this Agreement in whole or in part by operation of law or otherwise, without the other party's prior written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void. Notwithstanding the foregoing, however, Imperva may assign this Agreement without consent to the acquiring or surviving entity in a merger or acquisition in which Imperva is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of Imperva's assets. Imperva's licensors are intended third party beneficiaries of this Agreement. In the event any provision of this Agreement shall be determined to be invalid or unenforceable under law, all other provisions of this Agreement shall continue in full force and effect. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written between the parties with respect to said subject matter. This Agreement may be modified or waived only in a written instrument signed by both parties. A waiver of any breach under this Agreement shall not constitute a waiver or any other breach or future breaches. Notwithstanding the foregoing, if a separate, written and signed agreement for the license of the Products exists between End User and Imperva, the terms of that written agreement (excluding any pre-printed terms of any Purchase Order, confirmation or similar document, all of which will have no effect and will not be considered agreed to by Imperva) shall take precedence over this Agreement. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered or mailed by certified mail, return receipt requested or by any other means of delivery which generates a written receipt at the addresses set forth on the cover sheet. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California for resolution of any disputes arising out or relating to this Agreement. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement in any manner whatsoever.
  17. Open Source Software. Open Source Software is copyrighted and licensed under the GPL/LGPL and other licenses. Copies of or references to those licenses are included with Software in the "Help" section. You may obtain the complete corresponding Open Source Software source code from us for a period of three years after our last shipment of the Software, by sending a money order or check for $10 to: Legal Department – Open Source Software Request, Imperva, Inc., 3400 Bridge Parkway, Suite 200, Redwood Shores, CA 94065, United States.
Last updated: April 27, 2012