By using any part of the website www.aquasec.com (together with its subdomains, features, and services available thereon, the “Site”), you agree to these terms and conditions (the “Agreement”) which you acknowledges constitutes a binding agreement between you and Aqua Security Software Ltd. (“Aqua”).
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, you represent that you have fully read and understood the terms and conditions of this Agreement. The language of this Agreement is hereby expressly agreed to be the English language, and you hereby waive any applicable law or regulation requiring the Agreement to be localized to meet your language, as well as any applicable rights to require an original (non-electronic) signature, or delivery or retention of non-electronic records (to the extent not prohibited by applicable law). If you want to send any notice to Aqua under this Agreement, it must be to: [email protected].
IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY STOP USING THE SITE.
1. Ability to Accept. By using the Site you represent that you are over thirteen (13) years of age. If you are between the ages of thirteen (13) and eighteen (18) years, then, prior to using the Site, you must first review this Agreement with your parent or guardian to make sure that you and your parent or guardian understands them.
2. License. Subject to your full compliance with this Agreement, we grant you a limited, non-exclusive, revocable, non-sublicensable, non-assignable, and non-transferable license to access, use and display locally the Site for the sole purpose of using the Site for your own personal, non-commercial use (collectively, the “License”). Except for the License, you have no other rights in or to the Site, all of which are hereby reserved by Aqua.
3. License Restrictions. Except to the extent expressly permitted under the License, you shall not: (a) copy, reproduce, distribute, transfer (by sale, resale, renting, lending, license, sublicense, download or otherwise), modify, create derivative works of, publish, publicly perform, or publicly display any part of the Site; (b) disrupt servers or networks connected to the Site; (c) publish, transmit, or link to any robot, spider, crawler, virus, malware, Trojan horse, spyware, or similar malicious code or item intended (or that has the potential) to damage, disrupt, compromise, or exploit the Site; (d) remove or alter any copyright, trademark or other proprietary notices or legends on the Site or printed copies thereof; and/or (e) circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Site. Compliance with the foregoing restrictions is a condition to the license granted to you under Section 2 (License). You agree that a breach or threatened breach of any of the License restrictions in this Section 3 (License Restrictions) may cause Aqua suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if Aqua seeks an injunction, specific performance, or other equitable relief to enforce to enforce any provision under this Section 3 (License Restrictions), Aqua shall not be required to post a bond or to prove the likelihood of irreparable harm
4. Feedback. If you provide Aqua with any feedback, ideas or suggestions regarding the Site or any Content (collectively, “Feedback”), you hereby grant Aqua and its affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, paid-up, sublicensable, assignable and transferable license to use, reproduce, modify, distribute, make derivative works of, publicly perform, publicly display, and otherwise commercially exploit such Feedback, for any use and purpose whatsoever. Feedback will not be deemed or treated as confidential or sensitive to or for you. You represent and warrant that: (a) you have, and will maintain, all rights, permissions, licenses and authorizations needed to grant the foregoing license; (b) your Feedback does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property, proprietary or personal rights.
5. Ownership. As between you and Aqua, Aqua owns all Intellectual Property and other proprietary and personal rights (such as moral, privacy, and publicity rights) in and to the Site and any Content. You acknowledge that the Site and the Content may be protected by applicable Intellectual Property and other laws and treaties, including copyright and trademark laws and treaties. “Content” means any information, data, text, photographs, graphics, video clips, audio clips, sounds, software, scripts, tools, functions, icons, and features on the Site. “Intellectual Property” means any patent, copyright, work of authorship, technology, database, trademark, service mark, logo, brand name, design, and/or other intellectual property. Trademarks, service marks, logos and brand names displayed on the Site are the Intellectual Property of Aqua, its licensors, and/or other third party owners. For the avoidance of doubt, “Aqua”, “Peekr” and their respective logos are the Intellectual Property of Aqua and/or its affiliates.
For the avoidance of doubt, Content does not include the Peekr™ software and this Agreement does not grant you any right whatsoever in or to the Peekr software (access to and use of which is governed by the Peekr™ Terms and Conditions, available at https://peekr.aquasec.com/#/login/license).
6. User Submissions. If you submit, post, upload, or otherwise make available any information, data, graphics, or other content on or to the Site (collectively, “User Submissions”), you hereby grant Aqua and its affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, paid-up, sublicensable, assignable and transferable license to use, reproduce, modify, distribute, make derivative works of, publicly perform, publicly display, and otherwise commercially exploit your User Submissions, for any use and purpose whatsoever. User Submissions will not be deemed or treated as confidential or sensitive to or for you. You represent and warrant that: (a) you have, and will maintain, all rights, permissions, licenses and authorizations needed to grant the foregoing license; (b) each of your User Submissions does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property, proprietary or personal rights.
You are solely responsible and liable for your User Submissions. We reserve the right, without notice to you, to monitor, censor, edit, delete, and/or remove any and all User Submissions (including any portions thereof) at any time and for any reason.
9. WARRANTIES DISCLAIMER.
9.1. THE SITE AND ALL CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING 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, ALL OF WHICH ARE HEREBY DISCLAIMED BY AQUA.
9.2. AQUA MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION (a) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, ACCURACY OR COMPLETENESS OF THE SITE OR ANY CONTENT; OR (b) THAT YOUR USE OF THE SITE OR ANY CONTENT WILL MEET YOUR REQUIRMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE.
9.3. Applicable law may not allow the exclusion of certain warranties, so to that extent some of the above exclusions may not apply to you.
10. LIMITATION OF LIABILITY.
10.1. IN NO EVENT WILL AQUA OR ITS AFFILIATES BE LIABLE FOR:
i. ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
ii. ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
iii. ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
iv. THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2. THE COMBINED AGGREGATE LIABILITY OF AQUA AND ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO AQUA PURSUANT TO THIS AGREEMENT (IF ANY) DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM. ACCORDINGLY, IF YOU HAVE NOT PAID AQUA ANY AMOUNTS PURSUANT TO THIS AGREEMENT IN SUCH THREE-MONTH PERIOD, AQUA SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.
10.3. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so to that extent some of the above limitations or exclusions may not apply to you.
THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (a) EVEN IF AQUA OR ITS AFFILIATES HAVE 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 OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, NEGLIGENCE, AND STRICT LIABILITY).
11. Indemnity. If any third party (including, without limitation, a governmental entity) brings any kind of demand, claim, suit, action or proceeding against Aqua, our affiliates, and/or any of our respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an “Indemnitee”), which is based upon or arises from:
(a) your use of the Site;
(b) any breach by you under this Agreement; and/or
(c) any of your User Submissions
(each of the foregoing, a “Claim”) then, upon request by Aqua (to be decided at our sole and absolute option), you agree to assume full control of the defense and settlement of the Claim; provided, however, that (a) Aqua reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (b) you shall not settle any Claim, or admit to any liability thereunder, without the express prior written consent of Aqua.
In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of a Claim, you agree to indemnify and hold harmless the Indemnitee against (x) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee in the defense of such Claim; and (y) any amounts to be paid in settlement of the Claim, or awarded against the Indemnitee under such Claim (such as, but not limited to, damages, liabilities, and fines).
12. Term and Termination.
Aqua reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the Site (or any part thereof), for any reason whatsoever, at any time, and without notice to you, and you agree that Aqua will have no liability or obligation to you for any such termination, modification, suspension, or discontinuance. If you object to any term or condition in this Agreement or any subsequent changes thereto, or become dissatisfied with the Site in any way, your only recourse is to cease accessing and using the Site. Upon termination of this Agreement, the License granted to you will automatically terminate and be deemed revoked, and you must immediately cease all access to and use of the Site.
Sections 4 (Feedback) through 1616 (General) inclusive shall survive termination of this Agreement, as well as your use of the Site.
13. Assignment. Aqua may assign this Agreement (or any of its rights and obligations hereunder) without your consent, without notice to you, and without any other restriction. You may not assign this Agreement (or any of your obligations or rights hereunder) without Aqua’s prior express written consent. Any prohibited assignment shall be null and void. Subject to this Section, this Agreement shall bind and benefit each party and its respective successors and assigns.
14. Modification. Aqua reserves the right to make changes to this Agreement at any time and without notice to you, by posting the revised Agreement on the Site. Such changes will be effective ten (10) days thereafter, and your continued use of the Site thereafter means that you agree to be bound by the changes. Please check the Site regularly for any changes.
15. Governing Law and Disputes. This Agreement shall be construed, interpreted and governed by the laws of the State of Israel without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed. Any action, suit or other proceeding arising under or relating to this Agreement shall be brought solely in a court of competent jurisdiction in Tel Aviv-Jaffa, Israel (which venue shall be exclusive) and you hereby irrevocably submit to the personal jurisdiction of such courts and waive any jurisdictional, venue, or inconvenient forum objections to such courts. You also agree that any proceedings to resolve or litigate any dispute will be conducted solely on an individual basis, and you hereby waive the right to litigate disputes in court before a jury. Notwithstanding the foregoing, Aqua may seek injunctive relief or specific performance in any court worldwide that has jurisdiction. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, YOU AGREE THAT SUCH CAUSE OF ACTION SHALL BE DEEMED PERMANENTLY BARRED.
16. General. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written statements, agreements and understandings regarding such subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the strict extent, and for the duration of, such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision. No right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver granted hereunder must be in writing, signed by the waiving party, and shall be valid only in the specific instance in which given. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties. Any section or sub-section headings used in this Agreement are for convenience only, and shall not be used or relied upon in interpreting any provision herein.
Last updated: May 16, 2016