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 US User; OR otherwise (ii) Aqua Security Software, Ltd.
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, for the usage of the Aqua Software (the “Software”) stated in an ordering document (“Purchase Order”) provided by the cloud provider (“Cloud Provider”) and Support Services (defined below), executed directly with such Cloud Provider, to do the following for internal business use only (collectively, the “License”): (i) install the Software (in object code only) in Customer’s on-premise, private cloud, or other installation environment stated in the Purchase Order (the “Environment(s)”) and on such number of physical or virtual machine (including without limitation server, host, node and docker engine) on which the Software is installed (“Hosts”) as specified in the Purchase Order; and (ii) access and use those modules, tools, and/or features of the Software permitted (and in the quantities permitted) under the Purchase Order (“Module”). References herein to “Software” include all of the manuals, specifications, and similar documentation accompanying the Software or otherwise made available by Aqua (the “Documentation”), as well as any Updates (as defined in the Support TCs referenced in Section 6 below) made available to Customer pursuant to Support Services (as defined below). The foregoing license extends to Customer’s affiliates throughout the term of this Agreement, subject to the quantity restrictions contained in the Purchase Order.
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, knowingly do any of the following: (a) copy the Software; (b) sell, assign, lease, lend, rent, sublicense, or make available the Software to any third party, or otherwise use the Software 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 Software; (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 Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software (such as usage monitoring features); (f) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to) the Software; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Software; (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 Software; and/or (i) access the Software and/or its servers through or use with the Software 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 Software. Customer shall not ship, transfer, or export the Software or any component thereof or use the Software in any manner, prohibited by law, including without limitation to, sell, distribute, export or download the Software: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (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. 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.. 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.
Customer will be responsible for the installation, using a license key provided by Aqua, including without limitation: (a) all configurations (including without limitation to the Environment and other third party systems) in connection therewith; and (b) for providing Aqua with (as well as procuring for Aqua the right to access and use) all information, materials, facilities, and equipment reasonably requested by Aqua for the purposes of installation. In addition, Customer will cooperate with Aqua in configuring and maintaining the Software’s remote connectivity Module to enable Aqua to monitor and receive reports regarding Customer’s use and consumption levels of the Software (such monitoring and reports, “Usage Audits”).
4.1. License Fees. Customer will pay the fees for such License stated in the Purchase Order from the Cloud Provider (collectively, “License Fees”), and in accordance with its payment terms.
4.2. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Aqua’s net income, revenue, employees or property. In the event that Customer is required by applicable law to withhold or deduct taxes imposed upon Customer for any payment under this Agreement, then the amounts due to Aqua will be increased by the amount necessary so that Aqua receives and retains, free from liability for any deduction or withholding, an amount equal to the sum it would have received had Customer not made any such withholding or deduction.
5. THIRD PARTY SOFTWARE
The Software may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices (“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 Software, its Documentation or via a supplementary list provided by Aqua. Any covenants, representations, warranties, indemnities and other commitments with respect to the Software in this Agreement are made by Aqua and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software.
6. SUPPORT SERVICES
Subject to Customer’s payment of the License Fees, Aqua will provide the support and maintenance services (“Support Services”) in accordance with the terms and conditions attached hereto as Exhibit A and incorporated herein by reference (“Support TCs”).
7.1. Each party (as such, the “Receiving Party”) may have access to certain non-public or proprietary information or materials of the other party (as such, the “Disclosing Party”), whether in tangible or intangible form (“Confidential Information”). Without derogating from the foregoing, the Software shall be deemed as Aqua’s Confidential Information. Confidential Information will not include information or material which the Receiving Party can demonstrate: (a) was in the public domain at the time of disclosure by Disclosing Party to Receiving Party hereunder; and/or (b) was in Receiving Party’s possession at the time of disclosure by the Disclosing Party, and was not subject to prior obligations of confidentiality. In the event that the Receiving Party is required to disclose Confidential Information pursuant to any law or governmental or judicial order, the Receiving Party will promptly notify the Disclosing Party in writing of such law or order and reasonably cooperate with the Disclosing Party 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).
7.2. Receiving Party will use the 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. Receiving Party 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 the Disclosing Party’s Confidential Information. Receiving Party will promptly notify Disclosing Party in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information.
7.3. Each Party acknowledges that in the event of a breach or threatened breach of this Section 7 (Confidentiality) by the other Party, the non-breaching Party 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 7 (Confidentiality) without the need to post a bond.
As between the Parties, Aqua is, and shall remain, the sole and exclusive owner of all Intellectual Property Rights in and to the Software and all its copies (as well as any modifications, improvements or derivatives thereto), the Support Services, and any other products or services provided by Aqua (“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.
9. WARRANTY: DISCLAIMER
Aqua warrants to Customer that (i) the Software will materially perform the functions described in the technical specifications included in the Documentation throughout the term of this Agreement (the “Documentation Warranty” and “Warranty Period”, respectively), (ii) it owns or otherwise has the valid right to license the Software to Customer pursuant to this Agreement, (iii) the Software does not and will not contain any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Environment, (iv) all support services provided hereunder will be provided by personnel with the requisite skill and expertise and in accordance with highest industry standards, and (v) all services provided hereunder will be provided in a manner that complies with all applicable laws. The Documentation Warranty does not apply to the extent that: (a) the Software has not been properly installed, operated, repaired or maintained in accordance with the Documentation and the written instructions of Aqua; (b) the Software has been modified by persons other than Aqua or its authorized representatives; and (c) any error or failure related to the Environment or any third party software , hardware or service not provided with the Software or by Aqua.
EXCEPT TO THE EXTENT PROVIDED OTHERWISE IN THIS SECTION 9 (WARRANTY; DISCLAIMER), THE SOFTWARE AND ANY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, 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. EXCEPT AS PROVIDED HEREIN, AQUA DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE SOFTWARE, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE EXCEPT. AS OTHERWISE SPECIFIED IN THIS AGREEMENT, AQUA DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
10. LIMITATION OF LIABILITY
10.1. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY, ANY OF ITS AFFILIATES OR ANY OF THEIR LICENSORS AND SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE OR OTHERWISE FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, ANTICIPATED SAVINGS, OR DATA AND/OR DAMAGE TO OR LOSS OF REPUTATION, OR GOODWILL; AND/OR (C) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, THE COMBINED CUMULATIVE LIABILITY OF EITHER PARTY AND ITS AFFILIATES AND ANY OF THEIR LICENSORS AND SUPPLIERS UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE OR OTHERWISE, WILL NOT EXCEED THE LICENSE FEES ACTUALLY PAID BY CUSTOMER TO AQUA UNDER THE APPLICABLE PURCHASE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. AQUA’S SOLE AND EXCLUSIVE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY MAINTENANCE OR SUPPORT ISSUE SHALL BE LIMITED TO PROVISION OF SUPPORT SERVICES.
10.3. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 10 (LIMITATION 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).
11.1. By Aqua. Aqua will defend, indemnify and hold harmless Customer, its affiliates, and their respective directors, officers, and employees, from and against any third party claims, demands, actions, suits, proceedings, damages, losses, judgments and/or liabilities arising from, or related to or in connection with any allegation that Customer’s use of the Software (and any Third-Party Software) in accordance with this Agreement infringes, misappropriates or otherwise violates such third party’s Intellectual Property Right (an “Infringement Claim”), and Aqua will pay any amounts finally awarded by a court against Customer (or otherwise agreed in settlement) under such Infringement Claim, as well as reimburse Customer for documented reasonable attorney’s fees and other expenses and costs actually incurred by Customer prior to its notifying Aqua of the Infringement Claim in accordance with Section 11.4 (Procedure). Aqua will have no obligation or liability under this Section 11.1 to the extent that the Infringement Claim is based upon or results from: (a) the combination or use of the Software with any third party products or services; (b) any modification to the Software not by Aqua; (c) Customer’s failure to comply with the written instructions of Aqua and/or with the terms of this Agreement or the Documentation; (d) where Customer continues the alleged infringing activity after being notified thereof; (e) use or retention of a copy of the Software not in its most current version provided by Aqua of which Customer has been notified; and/or (f) Aqua’s compliance with any Customer instructions or requirements.
11.2. Remediation. Should the Software (in whole or in part) become, or in Aqua’s opinion be likely to become, the subject of any Infringement Claim, then Customer permits Aqua, at Aqua’s option, either to: (a) obtain for Customer the right to continue using the Software (or part thereof); or (b) replace or modify the Software (or part thereof) so that it becomes non-infringing; provided, however, that if, in Aqua’s opinion, the remedies in clauses (a) and (b) above are not commercially feasible, Aqua may terminate this Agreement immediately upon written notice to Customer and give Customer a pro-rata refund of any prepaid (but unutilized) License Fees based on the remaining License Term. In addition, Aqua will defend, indemnify and hold harmless Customer its affiliates, and their respective directors, officers, and employees from and against any third party claims, demands, actions, suits, proceedings, damages, losses, judgments and/or liabilities arising from, or related to or in connection with any failure of Aqua to provide the services hereunder in accordance with all applicable laws.
11.3. By Customer. Customer will defend, indemnify, and hold harmless Aqua, its affiliates, and their respective directors, officers, and employees from and against any third party claims, demands, actions, suits, proceedings, damages, losses, judgments and/or liabilities arising from, or related to or in connection with) Customer’s unauthorized use of the Software (an “Aqua Claim”).
11.4. Procedure. Each Party’s obligation and liability under this Section 11 (Indemnification) is subject to the conditions that: (a) the indemnified Party has promptly notified the indemnifying Party in writing of the Infringement Claim or Aqua Claim, as the case may be (as used in this subsection, “Claim”), provided that a delay or failure by the indemnified Party to provide such notice will not relieve the indemnifying Party of its obligation or liability under this Section (Indemnification), except to the extent that such delay or failure materially prejudices its ability to defend the claim; (b) the indemnified Party reasonably cooperates with the indemnifying Party
and permits the indemnifying Party to assume sole control of the defense of the Claim and all negotiations for any settlement thereof, provided that neither Party will not be required to cede control of an indemnified claim to the extent that it impacts any of such Party’s Intellectual Property Right or goodwill, and the indemnifying Party will not enter into any settlement of a Claim without the indemnified Party’s prior express written consent, not to be unreasonably withheld, conditioned or delayed; and (c) the indemnified Party refrains from admitting any liability or otherwise compromising the defense of the Claim (in whole or in part), without the prior express written consent of the indemnifying Party.
11.5. Entire Liability. This Section (Indemnification) states Aqua’s sole and exclusive obligation and liability, and Customer’s sole remedy, with respect to any Infringement Claim.
12. TERM AND TERMINATION
12.1. Term. This Agreement commences as of the Effective Date and will continue in full force and effect for the duration of the License specified in the Purchase Order from the Cloud Provider, unless earlier terminated in accordance with this Agreement.
12.2. Termination. Each Party may terminate this Agreement immediately upon written notice to the other Party: (a) if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven days); and/or (b) if the other Party is declared bankrupt by a judicial decision, or, in the event an involuntary bankruptcy action is filed against such other Party, it has not taken, within sixty (60) days from service of such action to such Party, any possible action under applicable law for such filed action to be dismissed.
12.3. Effect of Termination; Survival. Upon expiration or the effective date of termination of this Agreement (as the case may be): (a) this 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 Software from the Customer’s systems; (b) Customer will pay all outstanding fess, including any License Fees and Aqua shall refund to Customer any prepaid fees applicable to any unused portion of the remaining term; and (c) the Receiving Party shall, at its election, erase or return to the Disclosing Party all Confidential Information in its possession or under its control. Sections 1 (Definitions), 2 (License Restrictions), 4 (Payments), 5 (Third Party Software) and 7 (Confidentiality) through 13 (Miscellaneous) will survive the expiration or termination of this Agreement.
(13.1) Entire Agreement. This Agreement, all Purchase Orders and the Support terms represents the entire agreement of the Parties with respect to the subject matter hereof, and supersede 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 the Purchase Order, 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.
(13.2) Reference Customer. Aqua may not use Customer’s name and logo on its website and in its promotional materials to state that Customer is a customer of Aqua and a Software user.
(13.3) Assignment. This Agreement (whether in whole or in part)may not be assigned by either Party without the prior express written consent of the other Party, except that either Party may assign this Agreement without consent in the event of a sale of the assets of such Party to which this Agreement relates, provided that such assignee is not a competitor of the other Party
and has the ability to assume the rights and obligations of the assigning Party hereunder. 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.
(13.4) Governing Law; Jurisdiction. Any claims hereunder shall be governed under the laws of the State of Delaware, with venue in Wilmington, Delaware. 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.
(13.5) Feedback. If Customer provides Aqua with any feedback, ideas or suggestions regarding the Software (“Feedback”), Customer hereby grants Aqua a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, paid-up, non-sublicensable, and non-transferable license to use, edit, distribute, make derivative works of, and otherwise fully exploit such Feedback, for any use and purpose whatsoever. For the avoidance of doubt, Feedback will not be deemed Customer’s Confidential Information.
(13.6) 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.
(13.7) 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.
(13.8) 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. Aqua may send Notices to Customer through the management and reporting Module of the Software. Customer shall send all Notices to the mailing and email addresses and contact person listed in the Purchase Order, unless Customer has no Purchase Order with Aqua in which case Notices shall be sent to: Aqua Security Software, Inc., Email: Davidoff@aquasec.com.
(13.9) 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, or adverse weather condition,.
(13.10) Customer Data; Storage. Customer acknowledges that the Software is not intended to, and will not, operate as an archive or file-storage product or service for Customer Data (as defined below), and Customer will be solely responsible for the maintenance and backup of all Customer Data. “Customer Data” means Customer’s content, code, or data uploaded to, or otherwise processed by, the Software. All Customer Data shall be deemed to be the Confidential Information of Customer.
(13.11) 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.
SUPPORT TERMS AND CONDITIONS
These Global Customer Support Services Terms and Conditions (“Support Agreement“) set forth the terms and conditions under which Aqua Security (“Aqua“) with whom you (“Customer“, and together with Aqua, a “Party” and the “Parties“) have entered into a licensing agreement and related purchase order for Aqua Container Security Platform (CSP) software (the “License Agreement” and “Solution” respectively) will provide technical support and maintenance services to Customer (“Support Services“).
The Support Services are provided to the Customer during the license subscription-term described in the License Agreement, and are subject to Customer’s payment of the applicable license fees payable thereunder. Customer acknowledges that the Support Services may be provided by Aqua and/or an Aqua Affiliate. An “Aqua Affiliate” means, with respect to Aqua, any person, organization or entity controlling, controlled by, or under common control with, Aqua, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise. Aqua reserves the right to revise this Support Agreement at any time by posting the revised version on the customer support portal in use at that time. The revised version will be effective ten (10) days after such posting.
2. Software Updates
Aqua may, from time to time, during the License Term, release Program Updates (i.e. releases, enhancements and bug fixes to the Programs which are designated by Aqua as “right of second dot releases”, such as versions 3.0.4, 3.2.1 and 3.5.1– referred to as “Patch Releases” and “left of second dot releases” — referred to as “Major Releases”) to the Software (“Updates“). Aqua will make such Updates available to Customer to the extent generally made available by Aqua to its supported customers under valid support contracts, and at no additional cost.
3. Software Maintenance Services
Aqua will provide Software Maintenance Services for (1) the current Major Release of the Software (“N”) and one prior Major Release of the Software (“N-1”) or (2) all Major Releases of the Software released within the preceding 18-month period, whichever is longer. Aqua will provide Software Maintenance Services for critical security issues affecting the Software (i.e. a significant vulnerability) for (1) the current Major Release of the Software (“N”) and one prior Major Release of the Software (“N-1”) or (2) all Major Releases of the Software released within the 18-24 month period, whichever is longer. A withdrawal of Software Maintenance Services for a prior Major Release of the Software shall not affect Customer’s rights to use that version of the Software under this Agreement during the Customer’s License Term.
4. Software Support
During the License Term, Customer is entitled to use the Aqua Customer Support Portal and Documentation Web Site. Aqua will receive customer requests for support through the channels and during the hours described in the section “Support Channels and Times”. Once Aqua has determined that the Support Request is covered by a valid Support or License Agreement, Aqua will respond to such Support Requests based in the manner described in the section “Support Response Times and Severity Levels”, when a support request is made to obtain assistance with Errors in the solution. Customer may have up to two (2) Support Contacts for purposes of receiving Software Support. A Support Contacts for this purpose is a single individual, named in advance, who is authorized to contact Aqua Technical Support to make use of Aqua Software Support Services.
“Error” means any verifiable and reproducible failure of the Solution, on a customer system, to materially perform the functions described in the manuals, specifications, and similar documentation accompanying the Solution or otherwise made available by Aqua (“Documentation“). Aqua will use commercially reasonable efforts to resolve or provide a workaround for the Error. As used herein, a “System” means a Customer production-environment system that directly impacts Customer’s business operations.
5. Support Channels and Times
Customer may initiate a Ticket using any of the following channels:
a) Logging in and creating a Ticket on Aqua Support Portal (currently, https://support.aquasec.com)
b) Sending an email to a designated email address, which results in Ticket created in the Aqua Support Portal. (Currently email@example.com)
c) SEVERITY 1 INCIDENTS MUST BE OPENED VIA TICKET AND TELEPHONE.
US Toll Free: +1 844-278-2403
International – UK: +44 20 3872 2782
International – All Other: +1 844-278-2403
A “Ticket” is defined as a request for support entered via the Aqua Support Portal, associated with the Customer accounts, and given a unique identifier. All times associated with a Ticket shall be governed by timestamps of activity in the Aqua Support Portal.
Aqua will monitor newly created Tickets during Support Times, as follows:
North America: Mon–Fri, 9 a.m. to 5 p.m. (Local Time Zone).
APAC: Mon-Fri, 9 a.m. to 5 p.m. (Local Time Zone).
EMEA (Europe, Middle East, Africa): Mon–Fri, 9 a.m. to 5 p.m. (GMT/GMT+1).
The preceding Support Times are subject to the Exclusions specified below and to scheduled maintenance.
6. Support Response Times and Severity Levels
When initiating a Ticket, customer must provide a severity level corresponding to the business impact of the reported condition.
Aqua will respond to the Ticket with an acknowledgment of the request on the Aqua Support Portal, including an initial assessment, or request for more information. Response times will be as follows, from the time of Ticket creation (unless they fall outside the Support Times, which will result in a response on the next available day):
Severity Level Definition
“System Down” or a Software-inoperative condition impacting Customer’s production environment for which no workaround is immediately available, and where: (i) mission critical Systems are down; (ii) a substantial portion of mission-critical Systems data is at a significant risk of loss or corruption; (iii) a substantial loss of service to mission-critical Systems; (iv) Customer’s business operations have been severely disrupted; or (v) the Software causes catastrophic network or Systems failure or that compromises overall Systems integrity or data integrity and significantly disrupts Customer’s business operations.
2 business Hours
following customer call to dedicated number
High-impact condition possibly endangering a System.
4 business Hours
Low-impact business condition with a majority of Software functions still usable; however, some circumvention may be required to provide service.
1 business Day
With no impact on business conditions, (i) a minor problem or question that does not affect the Software function, (ii) an error in Software’s Documentation that has no significant effect on operations; or (iii) a suggestion for new Software features or enhancements.
2 business Days
Software Support described above will be provided only with respect to supported versions as described in the Software Maintenance Services, at the time of Ticket creation, and shall exclude Errors resulting from any of the following:
a) Modifications of the Solution that have not been approved by Aqua in writing
b) Customer’s failure to implement in a timely manner any Updates made available by Aqua
c) Customer’s environment, installation or setup steps, not validated or documented by Aqua; or failure to meet documented minimal supported hardware and software requirements
d) Use of the Solution other than as permitted in the License Agreement, or in violation of any laws
e) Any fault in any third-party hardware, software, firmware, or other product or service used in conjunction with the Solution, or any other causes beyond the reasonable control of Aqua
f) Customer’s negligence or willful misconduct
8. Customer Responsibilities
The obligations of Aqua under the above terms are subject to the following:
a) Customer will promptly report to Aqua any Error with the Solution, when it is discovered, along with the correct severity level.
b) Customer agrees to receive communications from Aqua in the manner prescribed herein.
c) Customer agrees that a person familiar with the Error will be available to work with Aqua at any time after a Ticket is created.
d) Customer agrees to provide to Aqua, on request, any technical information, documentation, direct view into customer system, setup and environment information, solution logs, details of custom components of application, any output or error message, detailed steps to enable Aqua to replicate the problem, any other information that Aqua may reasonably request in order to reproduce operating conditions similar to those present when the Error occurred.
e) Customer agrees to implement any recommendation or Update in a timely manner, and to report when the Ticket can be closed.
Last updated on July 2020