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) YOU ON BEHALF OF END USER AGREE TO THE TERMS OF THIS END USER LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) WITH IMPERVA, INC. (“IMPERVA”). IN THE EVENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATE OR OTHER PUBLIC OR PRIVATE ENTITY, END USER REFERS TO THAT ENTITY, AND YOU CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE END USER. 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.
a. Definitions. In this Agreement, the following capitalized terms shall have the meanings set out below:
“Appliance” means the Imperva branded computer hardware on which Software operates.
“Customer Support Guide” means the part of the Documentation that describes Support.
“Delivery” means, (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 SaaS Services, when the SaaS Service has been made available by Imperva for End User to access; and (iii) in the case of an Appliance, when the Appliance has been tendered by Imperva for shipment.
“Documentation” means Imperva’s standard technical specifications that describe the Products, including the installation, use, operation, features and / or functionality of the Products, and how Imperva provides Support in relation to the same, as available at https://docs.imperva.com/ as updated by Imperva from time-to-time.
“Evaluation Products” means (i) Software or SaaS Services released for purposes of testing and evaluation prior to such Software or SaaS Services being made commercially available; or (ii) certain Products and related Documentation that Imperva elects to make available to End User on a temporary basis for non-commercial use solely for internal evaluation purposes.
“Licensed Volume” means the volume or other measurement or conditions of permitted use for the Products as set out in the applicable SKU or as otherwise set out in a Quote.
“Open Source Software” means third party software that Imperva distributes with the Software or utilizes in connection with the SaaS Services pursuant to (i) an open source license, including (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, any other license approved as an open source license by the Open Source Initiative, and any derivative of the foregoing licenses; or (ii) any other license that requires, as a condition of use, modification, distribution and/or otherwise making available of such software, that the software or other software combined and/or distributed with it be (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.
“Order” means, (i) an order form executed by End User and submitted to Imperva or (ii) a purchase order submitted by End User, or in respect of an End User by an Imperva authorized third party, in each case, in response to a Quote (which the Order is deemed to include) and that is accepted by Imperva.
“Professional Services” means the installation, configuration, training and other services that Imperva may provide to an End User pursuant to a SOW.
“Products” means Appliances, Software or SaaS Services, and/or any part or combination of the same.
“Quote” means an Imperva sales quotation which sets out Products and Services by SKU and which may include corresponding Product descriptions and details of the applicable Licensed Volume.
“SaaS Services” means Imperva’s software-as-a-service offerings (including content, updates and upgrades) that may be made available to End User by Imperva or its subsidiaries directly or through an authorized third party, in each case pursuant to an Order.
“Services” means Support or other services Imperva may provide pursuant to this Agreement, excluding SaaS Services.
“SKU” means Imperva’s internal stock keeping unit for each of its Products, Services or bundled offerings of Products and Services, which may include corresponding Product descriptions and details of the applicable Licensed Volume.
“SLA” means the service level agreement (where applicable, this is an addendum to this Agreement) for the relevant part(s) of the SaaS Services as set out in the Documentation.
“Software” means Imperva’s or its licensors’ software (in object code format), including updates or upgrades made available as part of Support, provided to End User by Imperva or its subsidiaries directly or through an authorized third party, in each case pursuant to an Order. The term “Software” shall exclude Open Source Software.
“Support” means the technical support and maintenance services for the Products that Imperva may make generally available either at an annual subscription cost to End Users, or as included in a non-perpetual, term subscription license to a Product, described in Imperva’s standard Customer Support Guide.
“Tokens” means the unit of licensing which may be available pursuant to certain Imperva licensing models, which are redeemable by the End User for use of certain Products as part of the applicable Licensed Volume.
b. Use of the singular includes the plural (and vice versa) and use of any gender includes the other genders. General words are not to be given a restrictive meaning because they are followed by particular examples, and any words introduced by the terms “including”, “include”, “in particular” or any similar expression will be construed as illustrative and the words following any of those terms will not limit the sense of the words preceding those terms.
2. Orders, Prices and Payment Terms.
a. Products and Services shall be ordered by End User pursuant to an Order, either directly from Imperva or through an authorized third party. Each Order shall correspond to a Quote which sets out the relevant SKUs and Licensed Volume. Each Order, together with the corresponding Quote, shall form a part of, be incorporated by reference into, and be subject to the terms and conditions of, this Agreement. Unless expressly stated in this Agreement or agreed to in writing by the parties, termination of any Order shall not affect any other Order. Upon termination of this Agreement, however, all Orders shall automatically terminate, except with respect to any perpetual Software licenses (and related terms) granted in an Order.
b. For Orders accepted directly by Imperva, End User shall pay Imperva the applicable fees designated by Imperva in the Order. Overage fees may apply if End User exceeds its License Volume for any applicable SKU as set out in the Order, or if no overage rates are included in the SKU, at Imperva’s then-current overage rates as set out in the Documentation. Any fees payable to Imperva are non-refundable and non-cancellable 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. Should End User be required under any law or regulation of any governmental entity or authority outside of the United States, to withhold or deduct any portion of the payments due to Imperva, then End User shall increase the sum payable to Imperva by the amount necessary to yield to Imperva an amount equal to the sum it would have received had no withholdings or deductions been made. Fees for SaaS Services, Software and Services shall be invoiced (i) in full upon Imperva’s acceptance of an Order, or if set out in a Quote, (ii) in equal instalments. Fees for expenses and overages shall be invoiced in arrears. All payments from End User to Imperva shall be payable by End User net thirty (30) days after the date of invoice. If End User is thirty (30) days or more overdue on any payment owed to Imperva pursuant to this Agreement, in addition to any of its other rights or remedies, Imperva reserves the right to (a) suspend the provision of, or withhold or delay delivery of, any and all applicable Products and Services to End User, without liability to End User, until such amounts are paid in full; and (b) charge a late fee on any overdue amounts at a rate equal to 1.5% per year or the highest rate permitted by applicable law or regulation, whichever is lower. End User shall reimburse Imperva for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting overdue amounts pursuant to this Agreement. Neither party shall have any right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement for any reason. End User agrees that Tokens must be redeemed within the term described in the applicable Quote and that Tokens that are not redeemed within that period are non-refundable and non-transferrable.
3. Shipment and Delivery.
a. Shipment. Imperva shall use commercially reasonable efforts to ship the Appliances and the Software license keys, and provide the SaaS Services, at the times requested in accepted Orders (in partial or full shipments); provided, however, that subject to Imperva having used its commercially reasonable efforts, Imperva shall in no event be liable for any delay in Delivery or for failure to give notice of delay. Without liability to any person and without prejudice to any other remedy, Imperva may withhold or delay shipment of any Order if End User is late in any payment obligation pursuant to this Agreement or is otherwise in default under this Agreement.
b. Delivery. Risk of loss and, if applicable, title to Appliances shall pass to End User upon Delivery; provided that title shall not pass to End User for (i) any Software contained in or installed on such Appliances; or (ii) any Appliances for which End User has not purchased outright and paid for in full. Products shall be deemed accepted by End User upon Delivery. Appliances shall be delivered Ex Works (Incoterms 2000) Imperva’s designated manufacturing facility. End User may specify shipping instructions with the Order, which are subject to Imperva’s acceptance. In the absence of specific shipping instructions from End User, which have been agreed to by Imperva, Imperva shall ship by the method it deems appropriate. End User shall pay and be exclusively liable for all costs associated with shipping and delivery including without limitation, freight, shipping, customs charges and expenses, cost of special packaging or handling and insurance premiums incurred by Imperva in connection with the shipment of Appliances to End User. In its discretion, Imperva may advance shipping charges on behalf of End User on Appliances shipped to End User, and End User agrees to reimburse Imperva for any such advanced charges and expenses.
4. Licenses and Restrictions.
a. Software. Conditioned on End User’s compliance with the terms and conditions of this Agreement, Imperva grants End User a nonexclusive, nontransferable, nonsublicensable, revocable license to use the Software, in accordance with its corresponding Documentation, solely for End User’s internal business purposes, on the Appliances (where applicable), subject and up to the Licensed Volume, and for the license term, each as described in the Quote. If End User receives a license to the Software pursuant to this Agreement on a standalone basis, the license granted in this Section shall include the right to copy the Software up to the Licensed Volume.
b. SaaS Services. Conditioned on End User’s compliance with the terms and conditions of this Agreement, Imperva grants End User a nonexclusive, nontransferable, nonsublicensable, revocable right to use and access the SaaS Services in accordance with its Documentation subject and up to the Licensed Volume only for End User’s internal business purposes, for the term described in the Quote.
c. Restrictions. End User may not (and may not permit any third party to) directly or indirectly: (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 or any material associated to the Product or Services to third parties; (iv) remove or modify any proprietary notices, labels or marks on or in any copy of the Products or any material associated to the Product or Services; (v) distribute, sell, sublicense, rent, lease or use the Products or Services (or any portion) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Products available to third parties; (vi) publicly disseminate reports generated by the Products / Services or Product / Service performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Products; (vii) access the database or any other third party product that is embedded in the Products with applications (including spiders, robots, crawlers or any other similar data mining tools) other than the Products; (viii) use the Products / Services or reports generated by the Products / Services in End User’s products or services or in its marketing of products or services to third parties; (ix) use the Product / Services or reports generated by the Products / Services to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Products / Services; (x) use the Products / Services to store, transmit, upload or post any infringing or otherwise unlawful or tortious material or any data for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Products; or (xi) use the Products / Services other than as expressly authorized in this Agreement. 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 / Services is in compliance with this Agreement. End User shall provide reasonable cooperation with any such audit.
d. Appliance. End User acknowledges that the Software included with the Appliance is licensed and not sold. Such Software is licensed solely in conjunction with such Appliance (and not separately or apart from such Appliance). If End User sells, leases, lends, rents, distributes or otherwise transfers any Appliance to any third party or if Imperva terminates this Agreement under Section 11.b, then End User shall erase all Software from such Appliance. If End User enters into a term agreement for use of Appliances, all right, title and interest in such Appliances shall remain with Imperva or its partner and must be returned by End User within fifteen (15) days after the end of the applicable term or End User shall be charged and pay for the Appliances at Imperva’s then-current prices. End User must keep such Appliances free from liens or pledges, shall be responsible for any damage to such Appliances during the applicable term, reasonable wear and tear excepted, and shall carry a policy of fire and extended coverage (all risks), in an amount equal to the full replacement value of such Appliances.
e. Open Source Software. Open Source Software is copyrighted and licensed under the GPL/LGPL and other licenses. Copies of or references to those licenses for Open Source Software made available or utilized in connection with the Products can be found in the Documentation. If delivery of source code is required by the applicable license, End User may obtain the complete corresponding Open Source Software source code for a period of three years after Imperva’s last shipment of the Software, by sending a request to: Legal Department – Open Source Software Request, Imperva, Inc., One Curiosity Way. San Mateo, CA 94403, United States. End User acknowledges and agrees that (i) any and all Open Source Software made available or utilized in connection with the Products is provided solely on an “AS IS” basis; and (ii) Imperva does not make any warranties or guarantees regarding such Open Source Software and shall not be responsible for the operation or failure of, or any errors, bugs or issues in, such Open Source Software.
f. 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 Section 4(f) 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.
g. Acceptable Use Policy. End User agrees that at all times it shall comply with the Imperva Acceptable Use Policy (available at https://www.imperva.com/legal/acceptable-use-policy/, as amended from time to time).
5. Additional Terms for SaaS Services
a. Accessing and Use of SaaS Services. Except as explicitly set out in this Agreement, 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 SaaS Services, including without limitation paying all fees, charges, taxes, and other costs related to internet access and for configuration changes that may be required to route activity to the Products. End User may access the SaaS Services only through the interfaces and protocols provided or authorized by Imperva and its partners and agrees to set up, maintain and use the SaaS 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 SaaS 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 SaaS Services that require DNS routing, End User shall 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.
b. Authorization. Certain SaaS Services are offered to cache, monitor and optimize websites. As such, End User grants Imperva and its partners a nonexclusive, worldwide, fully paid-up, royalty-free license to use, transfer, display, minimize and compress the content and material on End User’s websites, in any media formats, in connection with the performance, improvement and support of the SaaS Services. Imperva and its partners do not provide backup services and if End User’s use of the SaaS Services terminates for any reason, Imperva and its partners may, without notice, delete or deny End User access to any information derived from End User traffic that may remain in its/their possession or control. End User agrees that if, in Imperva’s or its partners’ sole determination, End User is using the SaaS Services in violation of the Imperva Acceptable Use Policy (available at https://www.imperva.com/legal/acceptable-use-policy/, as amended from time to time) or the supplemental terms for SaaS Services (as described in Section 5(c) below), or in a manner that violates laws, rules or regulations or creates a potential adverse impact on Imperva’s, its partners’ or its suppliers’ systems, business or customers, Imperva, its partners or its suppliers may flag or block content, block access to End User’s sites from particular jurisdictions or suspend or terminate End User’s access to the SaaS Services without notice to End User or liability to End User regarding the deletion, blocking or removal of content or the suspension or termination of the SaaS Services.
c. Acceptable use of SaaS Services.
End User agrees to comply with all applicable laws, rules, codes and regulations regarding online conduct and the collection and transmission of data, including all laws, rules, codes and regulations of the countries in which End User operates and from which it collects or otherwise processes data. The SaaS Services may include a shared web caching service, which means a number of End User’s websites are cached on the same server. End User shall not use the SaaS Services in a manner that could disrupt or otherwise adversely affect or impair the performance of any other websites of other end users and customers of Imperva. End User agrees to be solely responsible for compliance with these terms by the users of End User’s websites.
d. Data Across Border Provision. End User may request that Imperva restrict End User traffic processing to a subset of data centers in accordance with the SLA. However, in its discretion, Imperva may temporarily route End User traffic outside of the specific geographical location and/or data center in order to maintain availability of certain SaaS Services. Any request for data center restrictions in respect of such SaaS Services shall be subject to submission by End User of a corresponding support ticket in Imperva’s technical support ticket system.
a. Software. Imperva warrants that during the sixty (60) day period commencing on the date of first Delivery, the Software shall perform substantially in accordance with the Documentation. In the event of a breach of the foregoing warranty, as End User’s sole and exclusive remedy, Imperva shall, at its sole expense and discretion, either replace the Software with Software conforming to the warranty in this Section 6(a), or use reasonable efforts to modify the Software so that it performs substantially in accordance with the Documentation.
b. Appliances. Imperva warrants that during the sixty (60) day period commencing on the date of first Delivery, the Appliances shall perform substantially in accordance with the Documentation. In the event of a breach of the warranty in this Section 6(b), as End User’s sole and exclusive remedy, Imperva shall, at its sole expense and discretion, following the return of such Appliance by End User, either repair the Appliance or replace the Appliance with a new or reconditioned Appliance that performs substantially in accordance with the Documentation.
c. SaaS Services. Imperva warrants that during the term of the SaaS Services as specified in a Quote, the SaaS Services shall perform substantially in accordance with the Documentation and in compliance with any applicable SLA. In the event of a breach of the foregoing warranty, as End User’s sole and exclusive remedy, Imperva shall, at its sole expense and discretion, correct the SaaS Services so that they perform substantially in accordance with the Documentation and issue any credits to which End User may be entitled pursuant to any applicable SLA.
d. Exclusions and limitations. The foregoing warranties: (i) extend only to the original purchaser of the Product or Service from Imperva; and (ii) shall not apply to damage caused by misuse of the Products. The rights and remedies granted to End User under this Section state Imperva’s entire liability, and End User’s exclusive remedy, with respect to any breach of the warranties set out in this Section 6.
e. DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN SECTION 6, THE PRODUCTS AND SERVICES ARE PROVIDED AND/OR LICENSED “AS-IS” AND IMPERVA MAKES NO ADDITIONAL WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. IMPERVA AND ITS PARTNERS AND SUPPLIERS MAKE NO WARRANTY THAT USE OF THE PRODUCTS OR SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE OR DEFECT-FREE, OR AVAILABLE AT ALL TIMES. IMPERVA SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
a. Support and SaaS Services. Provided End User has an effective and fully paid contract (or other entitlement) for Support for all Software and Appliances that form the relevant environment, Imperva shall provide Support in accordance with its standard Support terms then in effect as set out in the Customer Support Guide. Enhanced Support (as defined and described in the Customer Support Guide) is included with any non-perpetual, term license to Software provided by Imperva pursuant to this Agreement, and applicable Support (as described in the applicable Imperva support guide for such SaaS Service found in the Documentation) is included with any active subscription to a SaaS Service made available by Imperva pursuant to this Agreement. Provided End User has an effective and fully paid contract for SaaS Services, Imperva shall provide such SaaS Services in accordance with any applicable SLA. In no event shall SaaS Services be sold by Imperva pursuant to this Agreement under a perpetual license.
b. Professional Services. Professional Services shall be provided upon mutual execution of a Statement of Work (“SOW”), or an Order for a standard packaged offering, which shall be governed by Imperva’s then current professional services agreement available at https://www.imperva.com/legal/wp-content/uploads/sites/14/2019/03/Imperva_Professional_Services_Agreement.pdf.
a. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Imperva’s Confidential Information includes, without limitation, the Products, their performance (including any benchmarking information) and Imperva’s pricing of the Products and Services. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party (as can be demonstrated by reasonable supporting evidence); (iii) was independently developed by the Receiving Party without access of or reference to the Disclosing Party’s Confidential Information or any breach of any obligation owed to the Disclosing Party (as can be demonstrated by reasonable supporting evidence); or (iv) is received from a third party which is not under an obligation of confidence or non-use with respect to such information and without breach of any obligation owed to the Disclosing Party (as can be demonstrated by reasonable supporting evidence).
b. The Receiving Party agrees that it shall (i) use Confidential Information for the sole purpose of exercising or enforcing its rights and performing its obligations under this Agreement, (ii) divulge and allow access to Confidential Information only to those of its employees, directors, independent consultants or agents who have a need to know such Confidential Information and who are bound by professional duty or in writing (in advance) to confidentiality and non-use obligations at least as protective of such information as this Agreement, and (iii) not disclose any Confidential Information to any third party except as described in the foregoing sub-clause (ii). The Receiving Party shall notify and cooperate with the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information to comply with an order from a court of competent jurisdiction or with a mandatory requirement of a governing regulatory body, provided such party, to the extent permitted by law and as soon as reasonably practicable under the circumstances, informs the Disclosing Party and allows the Disclosing Party the opportunity to object to the disclosure order or to take action to preserve the confidentiality of the information. The Receiving Party shall cooperate with the Disclosing Party in such party’s reasonable efforts to limit the disclosure of the information.
c. Upon termination of this Agreement, the Receiving Party shall (i) immediately cease all use of the Disclosing Party’s Confidential Information, and (ii) if requested by the Disclosing Party, either promptly destroy or return all Confidential Information of the Disclosing Party; provided, that the Receiving Party may retain a reasonable number of copies of the Confidential Information (and any materials embedding the same) for the sole purposes of satisfying legal or regulatory requirements regarding record and data retention that the Receiving Party is obligated to comply with, enforcing this Agreement and/or archiving consistent with good business practices. For the avoidance of doubt, such copies remain subject to the confidentiality and restricted use provisions of this Agreement.
d. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 8, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
9. Liability Limitation.
A. IN NO EVENT SHALL IMPERVA’S (AND ITS PARTNERS’ OR SUPPLIERS’) TOTAL AND AGGREGATE LIABILITY IN CONNECTION WITH THE PRODUCTS, SERVICES OR THIS AGREEMENT EXCEED THE TOTAL VALUE OF AMOUNTS PAID BY END USER TO IMPERVA FOR THE PRODUCTS OR SERVICES GIVING RISE TO SUCH LIABILITY IN RESPECT OF THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM, WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
B. IN NO EVENT SHALL IMPERVA (OR ITS PARTNERS’ OR SUPPLIERS’) HAVE ANY LIABILITY IN CONNECTION WITH THE PRODUCTS, SERVICES OR THIS AGREEMENT TO THE END USER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR USE, GOODWILL, REPUTATION, INTERRUPTION OF THE SERVICES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
C. END USER ACKNOWLEDGES AND AGREES THAT IMPERVA HAS OFFERED THE PRODUCTS AND SERVICES, AND SET THEIR PRICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN END USER AND IMPERVA. IMPERVA WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
D. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY (I) FOR FRAUD, (II) FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS OR SUBCONTRACTORS, OR (III) TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY LAW.
Subject to the remainder of this Section 10, Imperva shall defend End User against any third party claim that the Software as delivered or SaaS Services as provided infringe a U.S. patent or any copyright, or misappropriates any third party trade secrets (“Infringement Claim”) and indemnify End User from the resulting costs and damages finally awarded against End User to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in a settlement; provided that End User (1) promptly notifies Imperva of any and all threats, claims and proceedings involving such Infringement Claim, (2) gives reasonable assistance in response to Imperva’s request for assistance, and (3) grants Imperva sole control over defense and settlement of the Infringement Claim. The foregoing obligations do not apply with respect to any Infringement Claim or associated costs or damages arising out of or in connection with the Software and SaaS Services or portions or components: (i) that are modified by any party other than Imperva or its authorized agents, (ii) that are combined with other products, services, processes, software, content, data or materials, where the alleged infringement relates to such combination or such other products, services, processes, software, content, data or materials; (iii) where modifications that would have avoided the alleged infringement have been made available to End User, and End User continues the allegedly infringing activity after being notified of it by Imperva, and/or (iv) where End User’s use of such Software or SaaS Services is not strictly in accordance with this Agreement. In the event that Software and/or SaaS Services is held to or believed by Imperva to infringe or misappropriate any intellectual property rights of a third party, Imperva at its discretion, shall have the option to (A) modify the allegedly infringing Software or SaaS Services to be non-infringing, (B) obtain for End User a license to continue using the Software or SaaS Services, or (C) request the return of the infringing Software or terminate the infringing SaaS Services (as the case may be) and upon such return or termination, refund to End User the amount of license fees paid for such infringing Software and SaaS Services, either (y) depreciated on a straight-line basis over a three (3) year period, with respect to perpetual Software licenses, or (z) for the unused, prepaid portion of the term remaining as of the effective date of termination, with respect to subscription licenses to Software or SaaS Services. End User shall defend, indemnify and hold Imperva and its subsidiaries and their respective directors, officers, employees and licensors harmless against any claims, damages, settlements and expenses (including attorneys’ fees) that are excluded from Imperva’s indemnity obligations in (i) – (iv) above. THIS SECTION SETS OUT IMPERVA’S SOLE OBLIGATION AND END USER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF AN INFRINGEMENT CLAIM AND RELATED VIOLATIONS OF THIRD PARTY RIGHTS.
11. Term and Termination.
a. The term of this Agreement shall commence upon the Effective Date and shall continue in effect for such time as End User continues to have the right to access the Products. SaaS Services, and/or Support for Software and Appliances shall automatically renew for additional annual terms, at the end of the applicable term set out in an applicable Order, unless either party gives the other at least thirty (30) days’ notice of non-renewal prior to the end of the then-current term of that Order.
b. 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 pursuant to this Agreement immediately upon written notice to End User if End User breaches any provision of Section 4 (License & Restrictions), Section 5 (Additional Terms for Services) or Section 8 (Confidentiality).
c. Upon termination or expiration of this Agreement, Imperva shall cease to provide SaaS Services and Support, the rights and licenses granted to End User under this Agreement shall terminate and each party shall promptly return or destroy the other party’s Confidential Information in accordance with the provisions of Section 8(c). Upon expiration of End User’s rights with respect to a particular Product or Service pursuant to this Agreement, Imperva shall cease to provide such Product or Service, and the applicable rights and licenses granted to End User with respect to such Product or Service under this Agreement shall automatically and immediately terminate. 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, nor shall it revoke any perpetual license to the Software. The following sections shall survive termination of this Agreement: Sections 2, 3, 4(c)-4(f), 5(a), 6(d) and 6(e), and 8-13.
12. Threat Data, Feedback and Proprietary Rights.
End User acknowledges, understands and agrees that Imperva may, including as part of its provision of the Product and/or Services to End User, collect, store and use information obtained from End User and/or End User traffic, such as that which it believes to be necessary to identify, detect or prevent threats (“Threat Data”). End User agrees that Imperva may use Threat Data in connection with Imperva’s business purposes, including, without limitation, the testing, development, maintenance and improvement of Imperva’s products and services. The parties may enter into a separate written data processing addendum and/or business associate agreement (based on Imperva’s then-current forms). In addition, from time-to-time End User may provide Imperva with suggestions, feature requests, comments and feedback with regard to the Products and Services (collectively, “Feedback”). End User grants Imperva a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Imperva’s business purposes, including, without limitation, the testing, development, maintenance and improvement of Imperva’s products and services. End User represents and warrants that it has all rights and permissions necessary to transfer, disclose and grant, to Imperva, the rights contemplated by this Agreement, with respect to End User traffic (including Threat Data) and Feedback, including through the Products and Services. All title and intellectual property rights in and to the Products, and all improvements, modifications and derivative works of it, are and shall be owned exclusively by Imperva and its partners and suppliers, and to the extent any such rights vest in End User, End User automatically and irrevocably assigns such rights to Imperva. Other than as expressly set out in this Agreement, no license or other rights in or to the Products and intellectual property rights to it are granted to End User, and all such licenses and rights are expressly reserved.
a. Compliance With Laws; Export. End User acknowledges that the Products contain encryption technology that is subject to export restrictions by the U.S. government and import restrictions by certain other governments. End User shall not and shall not allow any third-party to remove or export, or allow the export or re-export of, any part of the Products or any direct product of it: (i) into (or to a national or resident of) Crimea, Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency of it 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 of it 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 other government 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 Products are 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 13(a).
b. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a party’s payment obligations) if the delay or failure is due to events which are beyond the reasonable control of the parties, including, but not limited to strikes, pandemics, epidemics, public health emergencies, blockade, government-imposed travel restrictions and quarantines, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, communications failure, and internet and power outages or disruptions.
c. Governing Law; Jurisdiction. This Agreement shall 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 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 shall not apply to this Agreement in any manner whatsoever. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement in any manner whatsoever.
d. End User Mention. End User consents to Imperva using its name and logo to identify End User as a customer of Imperva, including use on Imperva’s web site and other marketing materials. 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 this Agreement.
e. 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 shall 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 shall 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 (or a subsidiary, division or group of Imperva) is the acquired entity (whether by merger, reorganization, acquisition or sale of stock), or to the purchaser in connection with the sale of all or a portion of Imperva’s assets. The parties agree that there shall be no third party beneficiaries to this Agreement, except that Imperva’s licensors are intended third party beneficiaries of this Agreement (which may be amended without the consent of such beneficiaries). 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, and with respect to such invalidated or unenforceable provision, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of such provision as closely as possible in a mutually acceptable manner in order that the transactions contemplated pursuant to this Agreement be consummated as originally contemplated to the greatest extent possible. Except as specifically provided in this Agreement, the exercise by either party of any rights and remedies under this Agreement (including any right to terminate this Agreement) shall be without prejudice to its other remedies under this Agreement or otherwise. This Agreement may be modified or waived only in a written instrument signed by authorized representatives of both parties. A waiver of any breach under this Agreement shall not constitute a waiver of any other breach or future breaches. Except as otherwise set out in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver and (ii) no single or partial exercise of any right, remedy, power, or privilege pursuant to this Agreement shall preclude any other or further exercise of it or the exercise of any other right, remedy, power, or privilege. Any additional or inconsistent terms on a purchase order shall be null and void. This Agreement may be executed in counterparts, including by transmission in.pdf or other means of electronic transmission , each of which shall constitute an original and together shall constitute one instrument. All notices, requests, demands and other communications pursuant to this Agreement shall be in writing to firstname.lastname@example.org plus the address set out above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); (iii) two (2) days after it is sent if by overnight delivery by a major commercial delivery service, delivery verified; or (iv) twenty four (24) hours after an email is sent to the most recent email address in Imperva’s files. Either party may, by like notice, specify or change an address to which notices and communications shall from then on be sent.
f. Entire Agreement. Along with the relevant Order in respect of the Products and / or Services to which it relates, 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, including any prior non-disclosure agreements. Without limiting the generality of the foregoing, any terms and conditions contained in any purchase order, vendor/supplier registration form, questionnaire or any other form or document that End User may provide to Imperva in connection with this Agreement and/or the Products or Services shall be void, regardless of whether Imperva fails to object to such terms and whether such forms were provided prior to or after the execution of this Agreement. Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any express or implied representation, warranty, collateral contract or other assurance (except those set out in this Agreement). Each Party waives all rights and remedies which, but for the first sentence of this Section 13(f), might otherwise be available to it in respect of any such express or implied representation, warranty, collateral contract or other assurance. Nothing in this Section 13(f) limits or excludes any liability for fraud.
a. Evaluation Product. From time to time, Imperva may make available Evaluation Products to End User on a temporary basis for evaluation purposes, pursuant to an Order or otherwise. If Imperva agrees to such evaluation which shall be conditioned on End User’s compliance with the terms and conditions of this Agreement, the parties acknowledge and agree that the licenses granted in Section 4 shall not apply to such Evaluation Products. Notwithstanding anything to the contrary in this Agreement, conditioned on End User’s compliance with the terms and conditions of this Agreement, Imperva grants to End User during the Evaluation Period (as defined below), a cost-free, nonsublicensable, nontransferable, nonassignable and nonexclusive, revocable at will license to use the Evaluation Product, solely at the location identified in writing by End User and solely for End User’s internal evaluation of the Evaluation Product. Notwithstanding anything to the contrary as stated in this Agreement, all worldwide right, title and interest to the Evaluation Product, and all intellectual property rights in and to them, are and shall remain the exclusive property of Imperva and its suppliers.
b. Evaluation Period. Unless otherwise agreed to by the parties in writing or terminated earlier in accordance with this Agreement, and the term of the license to an Evaluation Product shall commence upon delivery of the Evaluation Product and continue until the earlier of (a) thirty (30) days from delivery; or (b) the date that Imperva provides written notice of termination to End User (“Evaluation Period”). Upon the expiration or termination of the Evaluation Period, (i) all licenses granted under this Section 14 for such evaluation shall cease, and (ii) End User shall immediately return the Evaluation Product to Imperva and destroy or erase any intangible copies of the Evaluation Product, and certify in a writing signed by an officer of End User and delivered to Imperva that all such copies of have been returned, destroyed or erased.
c. Additional Evaluation Terms. Notwithstanding anything to the contrary in this Agreement, End User acknowledges and agrees that the Evaluation Product is provided for evaluation “AS-IS” and Imperva and its suppliers make no representations or warranties of any kind, express or implied, with respect to the Evaluation Product, including, without limitation, any implied warranties of merchantability, title, fitness for a particular purpose, informational content, system integration, enjoyment, noninfringement or any other warranties arising out of course of dealing, usage or trade. In addition, End User acknowledges and agrees that Imperva’s obligations under Section 10 (Indemnity) shall not apply for any claims arising out of or related to the use of the Evaluation Product. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (BUT SUBJECT TO THE FINAL PARAGRAPH OF SECTION 9 (LIMITATION OF LIABILITY)), IN NO EVENT SHALL IMPERVA’S TOTAL AND AGGREGATE LIABILITY IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE EVALUATION PRODUCT EXCEED ONE HUNDRED DOLLARS ($100).
[Version 18 January 2021]