
END USER LICENSE AND SERVICES AGREEMENT FOR SCUBA SOFTWARE

BY CLICKING ON THE "ACCEPT" BUTTON, TAKING AN ACTION TO INDICATE ACCEPTANCE, OR USING THE SOFTWARE (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). 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 SOFTWARE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER ENTITY, END USER REFERS TO THAT ENTITY AND YOU CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE END USER.   IF THE TERMS OF THE AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.  THIS SOFTWARE IS SEPARATE FROM ANY OTHER IMPERVA PRODUCT, IS NOT REQUIRED FOR THE PROPER OPERATION OF ANY OTHER IMPERVA PRODUCT, AND IS NOT COVERED BY ANY OTHER AGREEMENT BETWEEN END USER AND IMPERVA.

1.                    Definitions.  The following capitalized terms shall have the meanings set forth below:
a.         Documentation means Impervas technical specifications that accompany and describe the installation, use and operation of the Software.
b.         End User means the party that has downloaded the Software for its own use.
c.         Open Source Software means third party software that Imperva distributes with the Software that is subject to an open source license as indicated in the Documentation or a notice file in the Software. 
d.        Software means Scuba by Imperva, in object code form only, and any updates or upgrades thereto provided to End User by Imperva and any Documentation pertaining thereto.  Software does not include any Open Source Software.
 2.                    License and Restrictions. 
a.           Software.  Subject to the terms and conditions of this Agreement, Imperva grants End User a nonexclusive, nontransferable, nonsublicensable license to use the Software in object code form for its own internal business purposes.  The license granted herein shall include the right to make a reasonable number of backup copies of the Software.  
b.          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 Software; (iii) make unauthorized copies of the Software; (iv) disclose, distribute, transfer or market the Software to third parties or use the Software to train third parties in the use of the Software; (v) remove or modify any proprietary notices, labels or marks on or in any copy of the Software; (vi) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Software available to third parties; (vii) publicly disseminate performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Software; (viii) use any third party files delivered with the Software for any purpose other than to enable the Software or (ix) use the Software for competitive analysis purposes or other than as permitted herein.   Further, End User may not charge anyone for use of the Software.    The Software includes Java SE JRE 8 software and use of the Commercial Features of such software for any commercial or production purpose requires a separate license from Oracle.   Commercial Features means those features identified Table 1-1 (Commercial Features In Java SE Product Editions) of the Java SE documentation accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html.         
c.	 US Government End User. For purposes of this Agreement, commercial computer software is defined at FAR 2.101.  If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (FAR) and its successors.  If acquired by or on behalf of any agency within the Department of Defense (DOD), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (DFARS) and its successors.  This U.S. Government End User Section 9 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. 
d.	Open Source Software.   The Open Source Software is copyrighted and licensed under the GPL/LGPL and other licenses.  Copies of those licenses are included 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 from us for a period of three years after the last customer download 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.                                                                      
3.                    Support and Maintenance.   Imperva does not provide Support and Maintenance for the Software. 

4.                     Confidentiality; Privacy.  End User agrees to hold in confidence any and all confidential and proprietary information of Imperva and its partners (the Confidential Information). Confidential Information includes, without limitation, the Software, and its performance (including any benchmarking information).  End User agrees not to use the Confidential Information except as necessary to fulfill its obligations or exercise its express rights hereunder, and not to disclose the Confidential Information to any person (other than End Users personnel having a need to know) without the prior written consent of Imperva. Without granting any right or license, Imperva agrees that the foregoing shall not apply with respect to any information that End User can document (i) is or becomes (through no improper action or inaction by End User or any affiliate, agent, consultant or employee of End User) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from Imperva.  End User may make disclosures required by law or court order provided End User uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows Imperva to participate in the proceeding.
Imperva may collect, store and use information obtained from End Users to provide and improve its products and may use End User contact information in accordance with its privacy policy that is available at www.imperva.com/other/legal.    
 
5.                    Proprietary Rights.  All title and intellectual property rights in and to the Software and Confidential Information is owned exclusively by Imperva and its partners and licensors.  Other than as expressly set forth in this Agreement, no license or other rights in or to the Software and intellectual property rights thereto are granted to End User, and all such licenses and rights are hereby expressly reserved.  Any ideas, suggestions, modifications and the like made by End User with respect to the Software will be the property of Imperva regardless of whether Imperva chooses to exercise its rights to incorporate such ideas, suggestions or modifications into the Software.  

6.                    Warranty and Disclaimer.  THE SOFTWARE IS PROVIDED AS IS AND IMPERVA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. IMPERVA, ITS PARTNERS AND SUPPLIERS MAKE NO WARRANTY THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR DEFECT-FREE, OR AVAILABLE AT ALL TIMES. IMPERVA HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.                    Limitations of Liability.  IN NO EVENT WILL IMPERVAS (AND ITS PARTNERS OR SUPPLIERS) LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS TO BE PAID BY END USER FOR THE SOFTWARE AT ISSUE.  IN NO EVENT SHALL IMPERVA (OR ITS PARTNERS OR SUPPLIERS) HAVE ANY LIABILITY TO END USER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR USE, INTERRUPTION OF THE SERVICES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
8.                    Term and Termination.  
a.       The term of this Agreement will commence upon download of the Software by End User and will continue in effect for such time as End User continues to have the right to access the Software.  Imperva may audit End Users use of the Software.  
b.	Imperva may terminate this Agreement immediately upon written notice to End User.  End User may terminate this Agreement by destroying all copies of the Software.  This Agreement shall terminate without notice if End User fails to comply with any of the terms of this Agreement.   
c.       Upon the earlier of expiration of End Users rights or termination of the Agreement, End User shall immediately cease usage of the Software and shall promptly destroy all copies of the Software. Sections 2(b)  (d), 4, 5, 6, 7, 8(c), 9 and 12 shall survive termination or expiration of this Agreement,
9.                       Compliance with Laws; Export.  End User acknowledges that the Software contains encryption technology that is subject to export restrictions by the U.S. government and import restrictions by certain foreign governments.  End User will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of the Software or any direct software thereof: (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 thereof restricts export or re-export to such countries); (ii) to anyone on the U.S. Commerce Departments Table of Denial Orders or U.S. Treasury Departments list of Specially Designated Nationals; (iii) to any country or region to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority.  End User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.  The Software is restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government.  End User agrees to indemnify and hold Imperva, its partners and suppliers harmless against any claims, losses or expenses arising out of End Users breach of this Agreement or use of the Software.
10.                       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 Impervas 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.
11.                       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.
12.                       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 nor to represent the other party or its licensors as agents, employees or franchisees.  This Agreement will bind and inure to the benefit of each partys 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 partys prior written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.  Notwithstanding the foregoing, however, Imperva may assign this Agreement without consent to the acquiring or surviving entity in a merger or acquisition in which Imperva is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of Impervas assets.  Impervas licensors are intended third party beneficiaries of this Agreement.  In the event any provision of this Agreement shall be determined to be invalid or unenforceable under law, all other provisions of this Agreement shall continue in full force and effect.  This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written between the parties with respect to said subject matter. This Agreement may be modified or waived only in a written instrument signed by both parties. A waiver of any breach under this Agreement shall not constitute a waiver or any other breach or future breaches.  Notwithstanding the foregoing, if a separate, written and signed agreement for the license of the Software exists between End User and Imperva, the terms of that written agreement (excluding any pre-printed terms of any Purchase Order, confirmation or similar document, all of which will have no effect and will not be considered agreed to by Imperva) shall take precedence over this Agreement. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered or mailed by certified mail, return receipt requested or by any other means of delivery which generates a written receipt at the addresses set forth on the cover sheet.  This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California for resolution of any disputes arising out or relating to this Agreement. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement in any manner whatsoever.  

Last updated: January 14, 2017