Aqua MicroScanner Community Edition End User License Agreement
THESE TERMS AND CONDITIONS (the "Agreement") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND AQUA (AS DEFINED BELOW). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IN ANY EVENT, REFERENCES HEREIN TO "Customer" MEANS YOU OR SUCH ENTITY (AS THE CASE MAY BE). "AQUA" SHALL MEAN (I) AQUA SECURITY SOFTWARE, INC. IN THE EVENT THAT YOU ARE A UNITED STATES OR AUSTRALIAN USER; OR OTHERWISE (II) AQUA SECURITY SOFTWARE LTD.
By installing or using any part of the Aqua Services (as defined below), Customer acknowledges these terms and conditions and represents that it has fully read and understood, and agrees to be bound by, the following (the date of such occurrence being the "Effective Date"): this Agreement and other supplemental terms and policies that this Agreement expressly incorporates by reference, and which are thereby made a part of this Agreement.
IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NOT INSTALL OR USE ANY PART OF THE AQUA SERVICES.
By entering into the Agreement, Customer hereby irrevocably and unconditionally waives any law or regulation applicable to Customer requiring that the Agreement be localized to meet Customer's language or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
Subject to the terms and conditions of this Agreement, Aqua grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (as defined below), to do the following for internal business use only ("License"): (i) install Aqua's proprietary vulnerability scanning software provided by Aqua ("Software") (in object code only) in Customer's in Customer's environment; (ii) use Software internally in order to perform vulnerability scanning of images; and (iii) use the vulnerability scanning service that provides the results of vulnerabilities in a scanned image (collectively, the "Aqua Services"). Customer shall not use the vulnerability scanning service not as part of the Software. References herein to "Aqua Services" include all of the manuals, specifications, and similar documentation accompanying the Aqua Services or otherwise made available by Aqua (the "Documentation") and any updates or upgrades Aqua elects to provide.
2. License Restrictions
Except to the extent expressly permitted in this Agreement (or otherwise mandated under any law applicable to Customer), Customer shall not, and shall not permit or encourage any third party to, do any of the following: (a) copy the Aqua Services; (b) sell, assign, lease, lend, rent, sublicense, or make available the Aqua Services to any third party, or otherwise use the Aqua Services to operate in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, and interfaces) of, the Aqua Services; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Aqua Services; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Aqua Services (such as usage monitoring features); (f) make a derivative work of the Aqua Services, or use the Aqua Services to develop any service or product that is the same as (or substantially similar to) the Aqua Services; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Aqua Services, without first (x) sending the results and related study(ies) to Aqua, and (y) obtaining Aqua’s written approval of the assumptions, methodologies and other parameters of the testing or study; (h) use, publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Aqua Services; and/or (i) access the Aqua Services and/or its servers through or use with the Aqua Services any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Aqua Services. Customer shall not ship, transfer, or export the Aqua Services or any component thereof or use the Aqua Services in any manner, prohibited by law, including without limitation to, sell, distribute, export or download the Aqua Services: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon, Syria, or the Crimea Region of Ukraine, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S., Australian or Israeli 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 (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S., Australia or Israel or any foreign agency or authority. Customer 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 foregoing conditions are limitations on the scope of the License.
3. No Payment; Taxes
The License is granted without any payment. Customer shall pay any and all taxes, charges and levies that may apply to this Agreement or the License, if applicable.
4. Usage Policy
Customer may perform up to 20 scans per day. If Customer reaches or exceeds 20 scans per day Aqua may suspend or limit Customer's access to the Aqua Services.
5. Third Party Software
The Aqua Services may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices (such third party programs, "Third Party Software" and "Third Party Software Terms and Notices", respectively). Some of the Third Party Software Terms and Notices may be made available to Customer in the Aqua Services, its Documentation or via a supplementary list provided by Aqua. Any covenants, representations, warranties, indemnities and other commitments with respect to the Aqua Services in this Agreement are made by Aqua and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Any use of Third Party Software is subject solely to the rights and obligations under the applicable Third Party Software Terms and Notices. Notwithstanding anything in this Agreement to the contrary, Aqua does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third Party Software.
6.1. Customer may have access to certain non-public or proprietary information or materials of Aqua (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). Without derogating from the foregoing, the Aqua Services and license keys shall be deemed as Aqua's Confidential Information. Confidential Information will not include information or material which Customer can demonstrate: (a) was in the public domain at the time of disclosure by Aqua to Customer hereunder; and/or (b) became part of the public domain after disclosure by Aqua to Customer hereunder, through no fault of Customer; (c) was in the Customer's possession at the time of disclosure by the Aqua hereunder, and was not subject to prior continuing obligations of confidentiality by Customer to Aqua; (d) was rightfully disclosed to the Customer by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Customer without (direct or indirect) use of, or reliance upon, Aqua's Confidential Information.
6.2. In the event that Customer is required to disclose Confidential Information of Aqua pursuant to any law or governmental or judicial order, Customer will promptly notify Aqua in writing of such law or order and reasonably cooperate with Aqua in opposing such disclosure or obtaining such other protective measures. In any event, such disclosure made pursuant to this paragraph will be made solely to the extent required by such law or order (as the case may be).
6.3. Customer will use Aqua’s Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and will not disclose or make available the Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Customer will take measures at a level at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level) to protect Aqua’s Confidential Information. Customer will promptly notify Aqua in writing in the event of any actual or suspected unauthorized use or disclosure of any Aqua Confidential Information.
6.4. Each Party acknowledges that in the event of a breach or threatened breach of this Section 6 (Confidentiality) by Customer, Aqua may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section 6 (Confidentiality) without the need to post a bond.
6.5. Aqua will collect, retain and use information about Customer's use of the Services, including its scanned images, for the purpose of providing the Services. Aqua may retain, process and transfer to third parties aggregate statistic information in perpetuity for any purpose, without any restrictions or payment obligations, which may include, inter alia, the number and types of vulnerabilities and installed versions of software.
As between the Parties, Aqua is, and shall remain, the sole and exclusive owner of all Intellectual Property Rights in and to the Aqua Services and all its copies (as well as any modifications, improvements or derivatives thereto), and any other products or services provided by Aqua (hereinafter, "Aqua IPR"). Aqua reserves all rights not expressly granted herein and except for the License, Customer is granted no other right or license in or to any Aqua IPR. Customer undertakes not to contest Aqua's ownership in the Aqua IPR. "Intellectual Property Rights" means any and all right, title and interest in and to patents, inventions, discoveries, copyrights, works of authorship, trade secrets, trademarks, service marks, trade dress, technical information, data, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, software, code, algorithms, architecture, records, documentation, and other similar intellectual or industrial property, in any form and embodied in any media, whether capable of protection or not, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof.
THE AQUA SERVICES AND THEIR RESULTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY SUPPORT OR SERVICE LEVEL COMMITMENTS AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. CUSTOMER'S INSTALLATION AND USE OF THE AQUA SERVICES SHALL BE AT CUSTOMER'S OWN RISK. AQUA DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, AVAILABILITY, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE AQUA SERVICES, OR THAT USE OF THE AQUA SERVICESWILL BE UNINTERRUPTED, SECURE OR ERROR-FREE OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT WILL AQUA, ANY OF ITS AFFILIATES OR ANY OF THEIR LICENSORS AND SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE AQUA SERVICESOR OTHERWISE FOR: (A) ANY DIRECT, COMPENSATORY, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, ANTICIPATED SAVINGS, OR DATA AND/OR DAMAGE TO OR LOSS OF REPUTATION, OR GOODWILL; (C) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; AND/OR (D)ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY AQUA.
9.2. WITHOUT DEROGATING FROM THE FOREGOING, IF DESPITE THE FOREGOING AQUA WILL BE FOUND LIABLE OR RESPONSIBLE BY A COMPETENT AUTHORITY, UNDER ANY LEGAL THEORY, THE COMBINED CUMULATIVE LIABILITY OF AQUA AND ITS AFFILIATES AND ANY OF THEIR LICENSORS AND SUPPLIERS UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE AQUA SERVICESOR OTHERWISE, WILL NOT EXCEED $100 (ONE HUNDRED USD).
9.3. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF A PARTY OR AN AFFILIATE OF AQUA HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY).
10. Term and Termination
This Agreement commences as of the Effective Date and will continue in full force and effect until terminated by either party. Each Party may terminate this Agreement with immediate effect, upon written notice. Upon termination of this Agreement: (a) the License will automatically terminate and Customer will uninstall and permanently erase (or, if requested by Aqua, permit Aqua to uninstall and permanently erase) all copies of the Aqua Services from the Customer's systems; and (b) Customer shall, at Aqua's election, erase or return to Aqua all Aqua Confidential Information in its possession or under its control. Sections 2 (License Restrictions) through 11 (Miscellaneous) will survive the expiration or termination of this Agreement.
(11.1) Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation not expressly specified in this Agreement. This Agreement may only be amended by a written instrument duly signed by each Party. The Section and subsection headings used in this Agreement are for convenience only. Any terms and conditions printed, or linked to, within any order provided by Customer, which are in addition to or otherwise inconsistent with the terms and conditions of this Agreement, shall be of no effect, unless explicitly stated otherwise with reference to this Agreement. (11.2) Reference Customer. Customer agrees to serve as a reference customer of Aqua with other potential customers and industry analysts. (11.3) Case Study. Customer agrees, in due course, to collaborate with Aqua’s marketing team to create a case study of the Customer’s use of the Aqua Services. (11.4) Assignment. This Agreement (whether in whole or in part): (a) may not be assigned by Customer without the prior express written consent of Aqua; and (b) may be assigned by Aqua, without obligation or restriction. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns. (11.5) Governing Law; Jurisdiction. This Agreement will be governed by, and construed in accordance with, the laws of the State of Israel, without regard to its conflicts of law rules. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the competent courts located in Tel Aviv-Jaffa, Israel, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum, or other objections to such courts. Notwithstanding the foregoing, Aqua may seek injunctive relief in any court worldwide that has competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed. (11.6) Feedback. If Customer provides Aqua with any feedback, ideas or suggestions regarding the Aqua Services ("Feedback"), Aqua may, at no cost, freely use such Feedback, for any purpose whatsoever and Customer hereby and shall assign all right, title and interest in and to all Feedback to Aqua upon creation thereof. For the avoidance of doubt, Feedback will not be deemed Customer's Confidential Information. (11.7) Relationship. The Parties are solely independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the Parties. Neither Party may make, or undertake, any commitments or obligations on behalf of the other. (11.8) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid and enforceable provision that most closely approximates the original legal intent and economic impact of such provision. (11.9) Notices. All notices and communications between the Parties under, or in connection with, this Agreement ("Notices") shall be in writing, by hand delivery, by nationally recognized courier service or by prepaid certified mail or by email (subject to written confirmation of receipt). Customer shall send all Notices to: Aqua Security Software Ltd., 20 Menachem Begin Street, Ramat-Gan 5270005, Israel, Attn: Director of Finance, Email: Support@aquasec.com. (11.10) Force Majeure. Except for payment obligations, neither Party will be liable for failure or delay in performance of any of its obligations under or in connection with this Agreement arising out of any event or circumstance beyond that Party’s reasonable control, including without limitation an Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot, civil commotion, adverse weather condition, adverse traffic condition, strike, lock-out or other industrial action, and failure of supply of power, fuel, transport, equipment, raw materials, or other goods or services. (11.11) Customer Data; Storage. Customer acknowledges that the Aqua Services is not intended to, and will not, operate as an archive or file-storage product or service for customer data. (11.12) Waiver. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. (11.13) Changes. Aqua may, at its discretion, at any time, change the terms of this Agreement and/or start charging fees for use of the Aqua Services and/or any feature or content therein (the "Fees"), under any payment conditions as it deems fit (Aqua shall not start charging fees without first notifying you in writing). By continuing to use any part of the Aqua Services following such modifications, Customer agrees to be bound by such modifications.