EVALUATION LICENSE AGREEMENT
- Definitions. The following capitalized terms shall have the meanings set forth below:
- “Appliance” means the Imperva branded computer hardware on which the Software operates.
- “Documentation” means Imperva’s technical specifications that accompany and describe the installation, use and operation of a Product.
- “End User” means the party that is evaluating the Products.
- “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.
- “Product” means Appliances or Software as the case may be.
- “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 is delivered to End User either on an Appliance or on a standalone basis for purposes of this evaluation. The term “Software” does not include Open Source Software.
- Licenses and Restrictions.
- 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 evaluation purposes.
- 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; (ii) make unauthorized copies of the Products; (iii) disclose, distribute, transfer or market the Products to third parties; (iv) remove or modify any proprietary notices, labels or marks on or in any copy of the Products; (v) 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; (vi) publicly disseminate performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Products; (vii) access the embedded database or any other third party product as part of the Software with applications other than the Software; or (viii) use the Products other than as permitted herein.
- Appliance. Software included with an Appliance is licensed solely in conjunction with such Appliance (and not separately or apart from such Appliance).
- Confidentiality; Privacy. End User agrees to hold in confidence 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.
- 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.
- Warranty Disclaimer.
THE PRODUCTS 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 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.
- Limitations of Liability.
IN NO EVENT WILL IMPERVA’S (AND ITS PARTNERS’ OR SUPPLIERS’) LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED $10,000. 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, 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.
- Term and Termination.
- The term of this Agreement will commence upon the Pilot Start Date and will continue in effect until the Pilot End Date. 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 five (5) 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) or Section 3 (Confidentiality).
- Upon the earlier of expiration of End User’s rights or termination of the Agreement, each party shall promptly return or destroy the other party’s Confidential Information. The following sections shall survive termination of this Agreement: Sections 2(b), and 3 – 11.
- 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.
- 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 Section.
- 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.
- 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 of any other breach or future breaches. 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 Santa Clara 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.
- 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: August 7, 2013