IMPORTANT – PLEASE READ THIS LICENSE AGREEMENT (“Agreement”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEBSITE. This Agreement, effective on the date of its download or other form of delivery (the "Effective Date"), is entered into between Imperva, Inc., a corporation organized under the laws of Delaware, or its affiliate(s) and You or the company which You represent and are authorized to bind ("Licensee" or “You”). To the extent you are entering into this Agreement on behalf of a company, You have the power and authority to bind that company.
As used in this Agreement, the following terms shall have the meaning below:
1.1. “Derivative Works” shall mean any improvement, modification, alteration, enhancement, and adaptation that are derived in any manner, directly or indirectly, from Licensed Software.
1.2.“Developer” means any person or entity who directly or indirectly develops a Solution using the Licensed Software to integrate an Imperva’s hardware or software product.
1.3.“End User” means a third party who uses the Licensed Software for its own internal production use and not for resale or further distribution.
1.4. “Licensed Software” means the source and object code of the imperva-web-api-composer downloaded or installed by or for You, and is subject to this Agreement, along with its associated files, documentation, including, if any, error corrections, modifications and updates.
1.5. “Sample Code” means templates and source code snippets for demonstration and instructional purposes to be used with Imperva’s hardware and software product.
1.6.“Solution” means any End User software that uses the Licensed Software’s Application Programming Interfaces (API’s) to install, configure, and deploy Imperva’s hardware and/or software product(s). Solution shall not include any software development kit, any other developer offering, and any type of plug-ins or add-on’s not interfacing with Imperva’s hardware of software product through the APIs of Licensed Software.
2.1. License Grant. Subject to this Agreement and any restriction set forth in a license.txt and/or readme file, Imperva grants You a limited, non-exclusive, nontransferable, revocable, and non-sublicensable license to use Licensed Software solely: (i) to develop Solutions for End Users, which shall include Imperva’s hardware or software product(s), (ii) to install, configure, and deploy Imperva’s hardware or software product(s) internally in your development or production environment, and (iii) to modify and create Derivative Works of Licensed Software solely to install, configure, and deploy Imperva’s hardware or software products.
2.2. Improvements. You are encouraged to share your improvements and modifications with others in the community, but You are not required to do so. Subject to the terms of this Agreement and Imperva’s rights and ownership in Licensed Software, You shall own the Derivative Works of Licensed Software created under foregoing Section 2.1, provided that You hereby covenant that You shall not enforce, or permit or encourage the enforcement of Your ownership and rights in Derivative Works, against Imperva or its affiliates, licensees, sublicensees, successors, or assigns.
2.3. License Restrictions. Except as expressly permitted under this Agreement, You may not on Your own, or through any parent, subsidiary, affiliate, agent, or other third party, not permit third parties to: (1) copy, modify, translate, adapt, change, enhance, or create any Derivative Works of Licensed Software (or any portion thereof), except as expressly set forth in this Section 2; (2) assign, sublicense, transfer, lease, rent or otherwise distribute Licensed Software to any third party; (3) expose any API’s to third party software, except for the purpose of integrating other products with Imperva’s software and hardware; (4) use Licensed Software to develop any software developer kit, other developer offering, or any type of plug-in’s or add-on’s not interfacing with Imperva’s hardware or software products; (5) take any action that would cause Licensed Software or any proprietary portion thereof to be subject to any open source software license; (6) use Licensed Software to conduct benchmarking (or performance testing) and distribute the results to third parties unless You have Imperva’s prior written consent and agreement with respect to the methodologies and assumptions used; and (8) remove any copyright or other proprietary notices on or in any copies of Licensed Software.
2.4. No Reverse Engineer. You agree not to disassemble, decompile or reverse engineer Licensed Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
2.5. No Support. Imperva shall have no support or maintenance obligations with respect to the Licensed Software. In addition, Imperva has no obligation to provide upgrades, updates, and/or bug fixes.
3.1. Licensed Software. Licensed Software is licensed, not sold. Imperva retains ownership of Licensed Software, including all intellectual property rights in Licensed Software. Imperva and each of its third party licensors own and retain for itself all right, title and interest in and to all designs, engineering details, data, materials, discoveries, inventions, patents and other proprietary rights pertaining to or reflected by Licensed Software.
3.2. Feedback and Improvements. All intellectual property rights evidenced by or embodied in Licensed Software is owned exclusively by Imperva or its licensors. You are not obligated to provide any feedback to Imperva. However, if You provide any feedback, You grant to Imperva a perpetual, irrevocable, royalty-free, paid-up, worldwide, non-exclusive, transferable, with the rights to sublicense (including through multiple tiers of sublicensees), and the right and license to commercially exploit any ideas, suggestions, improvements, modifications and the like made by You.
4.1. Subject to the license grants and restrictions contained herein, You must treat the Licensed Software and its API’s as proprietary and/or confidential information, and You agree this confidentiality provision shall survive the termination of this Agreement. You may disclose Licensed Software to the extent required by a court or under operation of law or order, provided that You notify Imperva of such requirement prior to disclosure, which You only disclose information required, and that You allow Imperva the opportunity to object to such court or other legal body requiring such disclosure.
5.1. You may not use any Imperva trademarks or logos without express prior written consent of Imperva.
6.1. As a condition to Your rights to distribute Licensed Software as part of a Solution to End Users, You shall ensure that each of its End User agrees to the terms of this Agreement.
7.1. Term. Either party may terminate this Agreement for convenience at any time. Upon termination, You must promptly, at Imperva’s option, either destroy or return to Imperva all copies of Licensed Software in your control.
7.2. Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of this Agreement, You shall return all Licensed Software to Imperva or certify their destruction. Upon any expiration or termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall cease except for the rights and obligations of the parties under any other provision of this Agreement which, by its expressly stated terms, is intended to survive the termination of this Agreement.
7.3. Open-Source Software. Licensed Software may include third-party software and such third-party software may be licensed under terms different from those in this Agreement. Portions of Licensed Software are only available to You under open source licenses, and other third party licenses. You either must agree to the terms of each applicable public license or not exercise such licensed rights. This Agreement is not intended to change or restrict the terms of any open source license. Imperva disclaims all liability and warranties with respect to open source software.
8.1. LICENSED SOFTWARE, SAMPLE CODE, AND THIRD-PARTY PRODUCTS (IF ANY) ARE DELIVERED "AS IS" AND NEITHER IMPERVA NOR ITS THIRD-PARTY SUPPLIERS TO THE EXTENT ALLOWED BY APPLICABLE LAW MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.1. You agree to indemnify, defend and hold harmless Imperva, its officers, directors, employees, stockholders, affiliates, agents and suppliers, from and against any and all third party claims and the related damages, losses or expenses, including but not limited to attorneys' fees and costs, arising out of or in any way connected with Your Solution or any combination of products.
9.2. This section states your sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind.
10.1. You agree to comply with all applicable export laws and restrictions and regulations. The transfer of certain technical data may require a license from the United States government or other government agency or may prohibit granting access to products and services to a national or resident of (i) Crimea, Cuba, Iran, North Korea, Sudan, or Syria (to the extent the U.S. government restricts export to such countries or regions); (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 location to which such export or re-export is restricted or prohibited without an export license or approval. You agree to comply with all such laws and regulations and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or region or on any such prohibited party list.
11.1. IN NO EVENT SHALL IMPERVA AND ITS LICENSORS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE LICENSED SOFTWARE OR THE USE OR OTHER DEALINGS IN THE LICENSED SOFTWARE. IN ADDITION, IN NO EVENT WILL IMPERVA AND ITS LICENSORS BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. Some states and jurisdictions do not allow the exclusion of limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
12.1. Governing Law; Venue. All disputes arising out of this Agreement for transactions in the US shall be subject to the exclusive jurisdiction of the state and Federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and non-exclusive jurisdiction and venue of these courts, and agree that service on You at Your address of public record constitutes valid service for any proceeding in the courts of that jurisdiction and this Agreement shall be governed by the laws of California without reference to conflict of laws principles.
12.2. Severability. If any provision of this Agreement is found void and unenforceable, such provision will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision and which is enforceable. All other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
12.3. Force Majeure. Neither party shall be liable for the performance of its obligations under this Agreement if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party and could not reasonably been foreseen, but will not excused for failure or delay resulting from general market or economic effects.
12.4. Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.
12.5. Nuclear, Aviation or Life Support Application. Imperva specifically disclaims liability for use of Licensed Software in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety or health care control system, including without limitation, life support system.
12.6. U.S. Government Restricted Rights. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and accompanying documentation shall be only those set forth in this Agreement.
12.7. Notices. Notice to Imperva should be sent to Imperva Inc., Legal Department, 3400 Bridge Parkway, Redwood Shores, CA 94065. Notice to You may be provided by email or postal mail, or other legally acceptable means. Notice to You will be deemed received after an email is sent to the most recent address provided to Imperva or upon delivery of the notice by mail.
12.8. Assignment. You shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer this Agreement, without Imperva's prior written consent. Imperva or its successors may assign this Agreement, in whole or in part. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
12.9. Remedies Cumulative. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.
12.10. Waiver; Amendment. Failure or delay on the part of either party hereto in the exercise of any right hereunder shall not impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of each of the parties to such agreement.
12.11. No Implied Licenses. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in this Agreement.
12.12. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof.