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.
“Appliance” means the Imperva branded computer hardware on which the Software operates.
“Applications” means WAR files or other software programs that are designed to implement a specific business purpose; such applications may include, but are not limited to, those for web sites, web services, desktop software, operating systems and mobile device programs.
“Deliverables” means any configurations, reports, and/or written documentation generated for End User in connection with the performance of Professional Services. No custom development of intellectual property will be created on behalf of End User in connection with Deliverables hereunder. Custom development, if any, shall only arise from and be governed under a separate written agreement between End User and Imperva.
“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 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.
“Designated Support Engineer Services” or “DSE Services” means Imperva’s optional designated support engineer program, available on an annual subscription basis for an additional fee, to those customers who purchase Enhanced or Premium Support, and described in Imperva’s standard Customer Support Guide.
“Documentation” means Imperva’s standard technical specifications that accompany and describe the installation, use and operation of a Product.
“Early Availability Product” means a release of Software or Subscription Services for purposes of testing and evaluation prior to such Software or SaaS Services being made commercially available. Early Availability Products may still be under development and therefore are subject to the terms of Section 15 (Early Availability Products).
“Early Availability Test Period” means the period during which an End User tests an Early Availability Product. The Early Availability Test Period begins on the date of Delivery of the Early Availability Product and ends upon the earlier of (1) the date on which Imperva makes the Early Availability Product generally available, or (2) the date that Imperva specifies in a notice to End User as provided in Section 15(c).
“Environment” means the computer system(s) and corresponding configuration(s) in which the Software may be used, as designated on an Order, whether that environment is on End User’s premises, in a public or private cloud, in a virtual private cloud or in another operating environment.
“FlexProtect” means Imperva’s FlexProtect licensing and pricing plans, offering the End User the flexibility to use certain pre-defined certain Products and/or Product functionality (as specifically identified in either the applicable SKU, or within Imperva’s FlexProtect website located at https://www.imperva.com/products/flexprotect-plans/), and to allocate purchased licenses among such pre-defined Products and/or Product functionality up to the Licensed Volume,
“Licensed Volume” means the volume or other measurement of permitted use for the Products as set forth in the applicable SKU or as otherwise agreed to by Imperva in an Order, including, without limitation, the number or volume of Websites, database servers, Applications, RPS Tier, and Environment(s) and the number of Machines or Users.
“Machines” means the physical or virtual software computer that are running the Software, the number of which are specified on an Order.
“Managed Services” means Imperva’s optional managed services program available on an annual subscription basis for an additional fee, designed as a supplement to Support, providing for active management by Imperva of certain Product environments of End User, and as described in the current Imperva Managed Services Guide.
“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.
“Order” means an order form executed by both parties or purchase order submitted by End User in response to an Imperva sales quotation and accepted by Imperva, which specifies Products and Services to be provided by Imperva under this Agreement.
“Peak Requests per Second” or “Peak RPS” means the maximum number of RPS during the applicable license term.
“Professional Services” means the installation, configuration, and training services that Imperva may provide to an End User.
“Products” mean Appliances, Software or SaaS Services, and/or certain functionality thereof, including any combination thereof, which may be sold under a FlexProtect plan.
“Requests per Second” or “RPS” means the number of HTTP requests received by an Application in one second.
“RPS Tier” means the estimated Peak RPS specified in an Order. Imperva uses the Peak RPS to determine which RPS Tier End User may purchase in any license term.”
“SaaS Services” mean Imperva’s software-as-a-service offerings, including content, updates and upgrades thereto that may be made available to End User by Imperva directly or through its partners and suppliers. SaaS Services include, without limitation, Attack Analytics, Attack Takeover, Threat Intelligence, Cloud Application Security, Application Delivery, API Security, and DDOS Protection.
“Services” mean Professional Services, Support, TAM Services, DSE Services and/or Managed Services, as the case may be.
“SKU” means Imperva’s internal stock keeping unit for each of its Products, including any corresponding Product descriptions and Licensed Volume.
“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 or its subsidiaries and any Documentation pertaining thereto. Software may be delivered to End User on Appliances or on a standalone basis. The term “Software” does not include Open Source Software.
“Support” means the technical support and maintenance services for the Products and periodic bug fixes and updates 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.
“Technical Account Manager Services” or “TAM Services” means Imperva’s optional technical account manager offering, available on an annual subscription basis for an additional fee, to those customers who have purchased Enhanced or Premium Support, and described in Imperva’s standard Customer Support Guide.
“Tokens” means the unit of licensing under the Imperva “FlexProtect” licensing model, which are redeemable by the End User for use of certain Imperva Products in the Licensed Volume described in the applicable SKU.
“User” means the permitted personnel of End User or End User’s permitted parties who may be supplied user identifications and passwords and thereby authorized to use the Software, as such number of users is specified on an Order.
“Website” means a location on the World Wide Web which has a unique SSL certificate, or any URI that cannot be protected using an existing site and policy configuration in the Imperva Cloud WAF Product.
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 include at a minimum a description of the Product and/or Service being ordered, number of units, and the fees therefor. Each Order shall be subject to the terms and conditions of this Agreement. Unless expressly stated in the Agreement or agreed to in writing by the parties, termination of any given Order shall not affect any other Order. Upon termination of the Agreement, however, all Orders for Services or SaaS Services issued under the Agreement shall automatically terminate.
b. For Orders accepted directly by Imperva, End User shall pay Imperva the applicable fees designated by Imperva. Overage fees may apply if End User exceeds its allowance for FlexProtect or any SaaS Services, calculated in accordance with the applicable SKU, or if no overage rates are included in the SKU, at Imperva’s then-current overage rates. 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 shall be invoiced as follows: (i) fees for all Flexprotect offerings, SaaS Services, Support, DSE Services, TAM Services AND Managed Services shall be invoiced in advance, (ii) fees for Software licenses and Appliance purchases will be invoiced upon Delivery, (iii) fees for Professional Services will be invoiced in arrears on a monthly basis, unless stated otherwise in the applicable SOW, and (iv) all Expenses in arrears at actual cost. All payments from End User to Imperva are due net thirty (30) days after the date of invoice. If End User’s account for SaaS Services or Support is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Imperva reserves the right to suspend such services to End User, without liability to End User, until such amounts are paid in full.
3. Shipment and Delivery.
a. Shipment. Imperva will use commercially reasonable efforts to ship the Appliances and the Software license keys at the times requested in Orders (in partial or full shipments); provided, however, that 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 payment 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, and Products shall be deemed accepted by End User upon Delivery. Purchased Appliances shall be delivered Ex Works (Incoterms 2000) Imperva’s designated manufacturing facility. End User may specify shipping instructions with the Order. In the absence of specific shipping instructions from End User, Imperva will ship by the method it deems most advantageous. 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.
c. Return of Appliances. If End User enters into a term agreement for Appliances, End User shall return such Appliance within fifteen (15) days after the end of the applicable term or be charged for the Appliances at Imperva’s then-current prices.
4. Licenses and Restrictions.
a. Software. Conditioned on the terms and conditions of this Agreement, Imperva grants End User a nonexclusive, nontransferable, nonsublicensable, license to use the Software, for the term described in the SKU, in accordance with its corresponding Documentation only for End User’s internal business purposes on the Appliances (where applicable) or up to the Licensed Volume licensed by End User. If End User licenses Software on a standalone basis, the license granted herein shall include the right to copy the Software up to the Licensed Volume.
b. Subscription Licenses. The licenses to Software referenced in Section 4(a) above may be granted to End User on a non-perpetual, term basis, including but not limited to certain licenses under the FlexProtect licensing model or to a FlexProtect plan. Any term restrictions on a Software license shall be set forth within the applicable SKU.
c. SaaS Services. Conditioned on 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 only for End User’s internal business purposes, for the term described in the SKU or otherwise in the Order.
d. FlexProtect Offerings.
(i) Licensing Model. Certain Software licenses that are term-based and/or SaaS Services may be licensed under a FlexProtect licensing model. In this case, End User’s specific entitlements under a FlexProtect license shall be as described in the applicable SKU.
(ii) FlexProtect Plans. FlexProtect may be sold as a term-based subscription plan combining certain Products and/or Product functionality, and the terms hereunder applicable to Software, Appliances, Support, SaaS Services and other Imperva Products and Services shall apply to a FlexProtect plan to the extent each Imperva Product and/or Service is included with such FlexProtect plan. Each FlexProtect plan will be identified in the applicable SKU as FlexProtect “Pro,” “Plus” or “Premier,” and a summary and description of the specific Products and/or functionality available under each plan be found at https://www.imperva.com/products/flexprotect-plans/.
(iii) FlexProtect Tokens. Certain FlexProtect plans may include entitlement to a specific number of Tokens, as set forth in the applicable SKU. During the term of the FlexProtect plan, End User may apply Tokens in order to use FlexProtect capabilities (as included with the purchased FlexProtect subscription plan) to protect a defined number of databases, volume of bandwidth, number of Websites and/or number of Peak RPS. End User may allocate its Tokens among databases, bandwidth, Websites and/or Peak RPS at its discretion, provided the aggregate number of databases, volume of bandwidth, number of Websites and/or Peak RPS do not exceed the number of purchased Tokens. Except as set forth in the corresponding SKU, each Token can be redeemed in accordance with the Token Redemption Schedule which may be found in the Imperva FlexProtect Licensing Guide and FAQ. End User shall comply with Imperva’s standard process for redeeming Tokens.
e. 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 reports generated by the Products or Product 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 Software with applications other than the Software; (viii) use the Products or reports generated by the Products in End User’s products or services or in its marketing of products or services to third parties or (ix) use the Products other than as permitted herein. 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.
f. 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 for a breach of Section 4.c, then End User will 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 will remain with Imperva or its partner and must be returned at the end of the term. End User must keep such Appliances free from liens, shall be responsible for any damage to such Appliances during the 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.
g. 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. 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., 3400 Bridge Parkway, Redwood Shores, CA 94065, United States.
h. 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(h) 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.
5. Additional Terms for SaaS Services.
a. Accessing and Use of SaaS 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 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 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.
b. Authorization. Certain SaaS Services are offered to cache, monitor and optimize Websites. As such, End User hereby 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 Websites (“End User Content”), in any media formats, solely as necessary for the performance of the SaaS Services. Imperva and its partners do not provide backup services for End User Content 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 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 determination, End User is using the SaaS Services in violation of the Acceptable Use Terms (as described in Section 5(b) 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 Terms for SaaS Services. End User agrees to comply with all applicable laws 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 gathers 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. To ensure that the SaaS Services are reliable and available for the greatest number of users, End User’s use of the platform cannot adversely affect the performance of any other End User’s Websites. Specifically, End User agrees that it will at all times comply with the Imperva Acceptable Use Policy, which can be found at https://www.imperva.com/legal/acceptable-use-policy/. End User agrees to be solely responsible for compliance with these terms by the users of End User’s Websites.
d. Enterprise Plans. The following terms shall apply to End Users using the Imperva Cloud WAF SaaS Services under an Imperva Enterprise Plan or under a FlexProtect plan:
(i) If the End User exceeds the clean bandwidth limit under the Enterprise Plan after eliminating the top 5% of the End User’s bandwidth usage, Imperva will provide End User with advance notice and End User can either upgrade to a higher bandwidth plan to accommodate for the usage for the remainder of the Term or pay overages at then current rates.
(ii) On demand DDoS plans allow End User to route traffic through the Imperva Cloud WAF network only when under a DDoS attack. Clean traffic bandwidth overage charges will apply if End User (a) uses the DDoS service when no DDoS attack has occurred or (b) does not route its traffic off the Imperva Cloud WAF network within 36 hours after a DDoS attack has ended.
(iii) If DDoS protection was not purchased by End User, or a DDos attack occurs and an attack otherwise exceeds the End User’s purchased DDoS threshold, Imperva may suspend service and stop processing Client’s traffic, until such time that End User purchases or upgrades to an applicable plan sufficient to cover the actual DDoS attack size.
e. Data Across Border Provision. End User may request that Imperva restrict End User’s traffic processing to a subset of data centers in accordance with the restrictions set forth in the standard service level agreement (SLA) then in effect. However, in its discretion, Imperva may temporarily route End User’s data outside of the specific geographical location and/or data center in order to maintain Service availability. Any request for data center restrictions 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 will perform substantially in accordance with their 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, replace the Software with Software conforming to the foregoing warranty, or use reasonable efforts to modify the Software so that it performs substantially in accordance with its Documentation.
b. Appliances. Imperva warrants that during the sixty (60) day period commencing on the date of first Delivery, the Appliances will perform substantially in accordance with their 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, repair the Appliance or replace the Appliance with a new or reconditioned Appliance that performs materially in accordance with its Documentation
c. SaaS Services. Imperva warrants that during the term of the SaaS Services, the SaaS Services will perform substantially in accordance with their Documentation and in compliance with their applicable SLA. In the event of a breach of the foregoing warranty, as End User’s sole and exclusive remedies, Imperva shall, at its sole expense and discretion, correct the SaaS Services so that they perform substantially in accordance with their Documentation and issue any credits to which End User may be entitled pursuant to the SLA.
d. Services. Imperva warrants that the Services shall be performed in a professional and workmanlike manner. In the event of a breach of the foregoing, Imperva shall re-perform the applicable Professional Services in a manner that is compliant with such warranty.
e. Exclusions and limitations. The foregoing warranty extends only to the original purchaser and will not apply to damage caused by misuse of 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 6.
f. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), THE PRODUCTS OR 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 OR 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.
a. Support and SaaS Services. Provided End User has an active and fully paid contract (or other entitlement) for Support, Imperva will provide Support in accordance with its standard Support terms then in effect. Enhanced Support (as defined and described in the standard Imperva Customer Support Guide) is included with any non-perpetual, term license to Software, and applicable Support (as described in the applicable Imperva support guide for such SaaS Service) is included with any active subscription to a SaaS Service. Provided End User has an active and fully paid contract for SaaS Services, Imperva will provide such services in accordance with its SLA. In no event shall SaaS Services be sold under a perpetual license.
b. Professional Services. Upon mutual execution of a Statement of Work (“SOW”) or an Order for a standard packaged offering, Imperva shall provide the Professional Services detailed therein. End User agrees to reimburse Imperva for its reasonable out-of-pocket expenses and costs, including travel and lodging incurred in connection with providing the Professional Services (“Expenses”). If End User cancels or postpones the agreed upon schedule for any reason without providing Imperva at least ten (10) business days advance written notice, End User will be responsible for fifty percent (50%) of the scheduled Professional Services price for the first week canceled or postponed . In addition, Professional Services must be utilized within twelve (12) months from the purchase date and, if not so utilized, Imperva will have no obligation to provide such Professional Services and End User will not be entitled to a refund of any amounts relating thereto. End User shall solely own all right, title and interest in and to its Confidential Information. Imperva shall solely own all worldwide right, title and interest in and to its Confidential Information and the Deliverables. End User will, subject to the terms of this Agreement, have a perpetual, worldwide, non-transferable, non-sublicensable, non-exclusive license to use any Deliverables delivered as part of the Professional Services. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Imperva to develop the Deliverables, and (ii) the term “Deliverables” shall not include the Tools. To the extent necessary to use the Deliverables, Tools that are delivered with or as part of the Deliverables, are licensed, not assigned, to End User, on the same terms as the Deliverables.
a. As used herein, “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. 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 known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. The Receiving Party agrees that it will (i) use Confidential Information for the sole purpose of exercising its rights and performing its obligations under this Agreement, (ii) divulge 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. 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 for any or no reason, 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, however 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. IN NO EVENT WILL END USER’S OR IMPERVA’S (AND ITS PARTNERS’ OR SUPPLIERS’) LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS PAID OR PAYABLE BY END USER TO IMPERVA FOR THE PRODUCT(S) OR SERVICE(S) AT ISSUE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL END USER OR IMPERVA (OR ITS PARTNERS’ OR SUPPLIERS’) HAVE ANY LIABILITY TO THE OTHER 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. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO END USER WITH RESPECT TO ANY CLAIMS ARISING UNDER SECTION 4 (LICENSES AND RESTRICTIONS), OR TO EITHER PARTY UNDER SECTION 8 (CONFIDENTIALITY).
10. Indemnity. Subject to the remainder of this Section 10, Imperva will 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 awarded against End User to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed in settlement; provided that End User (1) promptly notifies Imperva of any and all threats, claims and proceedings of 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 thereof. The foregoing obligations do not apply with respect to Software and SaaS Services or portions or components thereof, (i) that are modified by any party other than Imperva or its authorized agents after delivery by Imperva, (ii) combined with other products, processes or materials, where the alleged infringement relates to such combination, (iii) where End User continues allegedly infringing activity after being notified thereof and modifications that would have avoided the alleged infringement have been made available to End User, 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, Imperva at its discretion, will 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 Software or terminate the SaaS Services (as the case may be) and upon such return or termination, refund to End User the amount of 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 licenses to Software, or (z) for the unused portion of the term remaining as of the effective date of termination, with respect to term licenses to Software or SaaS Services. End User will defend, indemnify and hold Imperva harmless against any claims, damages settlements and expenses (including attorneys’ fees) excluded from Imperva’s indemnity obligations in (i) – (iv) above. THIS SECTION SETS FORTH IMPERVA’S SOLE OBLIGATION AND END USER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF VIOLATION OF THIRD PARTY RIGHTS.
11. Term and Termination.
a. The term of this Agreement will commence upon the Effective Date and will 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 will automatically renew for additional annual terms, at the end of the applicable annual 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.
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 hereunder 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 the earlier of expiration of End User’s rights or termination of the Agreement, Imperva will cease providing SaaS Services, Support, and Professional Services, licenses granted 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). 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, 4(c), 4(d), 4(f), 6(b), and 8-13.
12. Customer Information and Proprietary Rights. End User acknowledges, understands and agrees that Imperva may, as part of its provision of the Product and/or Services to End User, collect, store and use information obtained from End User, including, but not limited to, information about End User’s users and customers (“Information”) for the purposes of the provision of the Product, Services and other services to End User. Imperva may use such Information for analysis and improvement of Imperva’s products and services. The parties may enter into a separate written Data Processing Agreement and/or Business Associate Agreement (based on Imperva’s then-current forms) covering certain Information described and referenced therein. Any ideas, suggestions, modifications and the like made by End User with respect to a Product or Service will be the property of Imperva regardless of whether Imperva chooses to exercise its rights to incorporate such ideas, suggestions or modifications into a Product or Service. End User represents and warrants that it has all rights and permissions necessary to grant Imperva access to such Information and to transfer data as contemplated herein. All title and intellectual property rights in and to the Products are 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.
a. 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 other governments. End User will not and will not allow any third-party to remove or export, 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 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 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 13(a).
b. 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.
c. Governing Law; Jurisdiction. 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.
d. 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 web site. 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 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 (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. 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. Except as specifically provided in this Agreement, the exercise by either party of any rights and remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. 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. Any additional or inconsistent terms on a purchase order shall be null and void. All notices, requests, demands and other communications hereunder shall be in writing to the address set forth 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; 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 thereafter be sent.
a. Evaluation Product. From time to time, End User may wish to evaluate Product and its related Documentation on a temporary basis for non-commercial use (“Evaluation Product”). If Imperva agrees to such evaluation and 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 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. End User may only grant access to the Evaluation Product to employees, contractors, agents or consultants who are bound to confidentiality and non-use obligations no less protective of Imperva’s proprietary rights than this Agreement. 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 will 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, an evaluation shall commence upon delivery of the Evaluation Product and continue up to thirty (30) days thereafter (“Evaluation Period”). Upon the expiration or termination of the Evaluation Period, (i) all licenses granted under this Section 14 for such evaluation will cease, and (ii) End User will 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 as contained 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.
15. Early Availability Products.
a. License. If the Order is for End User to evaluate an Early Availability Product and its related Documentation and Imperva agrees to such evaluation, conditioned on End User’s compliance with the terms and conditions of this Agreement, the license set forth in Section 2(a) shall not apply and Imperva grants to End User during the Early Availability Test Period, a cost-free, nonsublicensable, nontransferable, nonassignable and nonexclusive, revocable license to use the Early Availability Product, solely at the location identified in writing by End User and solely for End User’s internal evaluation of the Early Availability Product.
b. Additional Terms for Early Availability Products. Notwithstanding anything to the contrary in this Agreement, End User acknowledges and agrees that an Early Availability Product is still under development, the features and functionality may change before any commercial release of the Product and Imperva has no obligation to license to End User any of the features or functionality as part of a commercially available software product. Early Availability Products are 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 Early Availability Products, including, without limitation, any implied warranties of merchantability, title, fitness for a particular purpose, system integration, non-infringement or any other warranties arising out of course of dealing, usage or trade, and no obligation under Section 7(b) (Indemnity) or under the SLAs for Subscription Services shall arise with respect to an Early Availability Product.
c. Notice and Effect of Termination. Notwithstanding other notice provisions set forth in this Agreement, Imperva may end the Early Availability Test Period at any time and for any reason upon notice by email to the person End User designates as a contact for the Early Availability Product evaluation. Upon the termination of the Early Availability Test Period, all licenses granted under this Section 15 will cease, and either (i) End User will license a commercially available Product or (ii) End User will return the Early Availability Product to Imperva and destroy or erase any intangible copies of the Early Availability Product.
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