This warranty agreement (“Warranty Agreement”) describes the terms and conditions under which Aqua Security Software Ltd. or any of its affiliates (“Aqua”) grants the warranty (“Warranty”) to Aqua customer (“Company”), which subscribes to Aqua SaaS Platform under Aqua Software as a Service Agreement, (“Aqua MSA”), and includes the container and K8s Security and Advanced Malware Protection components or any of the components in exhibit 2 (“Aqua Platform”). This Warranty Agreement shall enter into effect, provided that such Warranty is stated in a Quote or a Purchase Order between Aqua and the Company, which were approved by Aqua (collectively, “PO”). This Warranty shall be effective as of the date the PO is executed (“Effective Date”) and shall remain in effect until the earlier of: (i) 12 months as of the subscription effective date as stated in the corresponding PO and (ii) expiry of the subscription for any reason whatsoever; and in any event provided that the Company subscribes to the Aqua Platform in accordance with the Aqua MSA and uses the Aqua Platform in compliance with the terms of this Warranty Agreement (“Warranty Term”).
As the Company’s authorized representative, you represent that you are authorized by the Company to accept the Warranty under this Warranty Agreement as part of the Company’s subscription to the Aqua Platform. Capitalized terms shall have the meaning assigned to such terms defined in this Warranty Agreement, and capital terms used but not defined in this Warranty Agreement shall have the meaning assigned to such terms in the MSA.
Subject to the terms and conditions described herein and the MSA, the Parties to agree as follows:
1. The Warranty
During the Warranty Term, the Company’s host which are using the Aqua Platform , will be protected from a Cloud Native Attack. Cloud Native Attack means an unauthorized access by a third party to the operating system of a host protected by the Aqua Platform (discovered by Company), that results in the malicious exfiltration, destruction and/or irreversible encryption of the Company’s data, which the Company believes is substantial (has value in excess of $5,000) (“Cloud Native Attack”).
2. Warranty Requirements
The Warranty granted herein shall apply to all such affected hosts, provided that:
a. Subscription is over $200,000 annually, for a minimum period of 12 months .
b. Subscription should include the “Container and K8s security” per node/host, SaaS portion of the Aqua Platform.
c. Subscription should include the “Advanced Malware Protection” portion of the Aqua Platform.
d. The “Aqua Enforcers” and “Aqua Kube-Enforcers” components must be deployed in accordance with the Warranty requirements and the then current deployment best practices (detailed in Exhibit 1 and as may be updated by Aqua from time to time).
e. Eligibility for the Warranty coverage is applicable in case the Aqua Platform component deficiency was discovered following a security incident, which constitutes a Cloud Native Attack as defined above.
f. Company’s commitment is to the following actions:
– Within 24 hours of becoming aware of a Cloud Native Attack, Company must provide a notification to Aqua of such Attack, using the following email address: email@example.com
– Upon becoming aware of a Cloud Native Attack, Company must promptly take action, to stop the Cloud Native Attack which is in accordance with its governance and security policy.
g. The Warranty will apply only once Aqua Team Nautilus has determined, at its sole discretion, that a Cloud Native Attack has occurred due to run time components’ deficiency and that all Warranty requirements in this section 2 above are fully met. (“Aqua Review”). Team Nautilus will require a full export of the customer configuration as well as access to the Aqua’s audit page.
3. Warranty Entitlement
Subject to the terms of this Warranty Agreement, including the Warranty requirements specified in Section 2 above, in case the Aqua Review has determined that a Cloud Native Attack has occurred due to run time components’ deficiency, the Company will be entitled to a payment by Aqua, for the remaining Warranty Term, in the amount of $1,000 pro-rated on an annual basis, per affected host, up to the value $1,000,000 (annually), with respect to the affected hosts and the remaining Warranty Term (“Warranty Payment”).
4. Condition Precedent to Warranty Payment
As a condition precedent for the eligibility for the Warranty Payment (i) a Cloud Native Attack has occurred during the Warranty Term; (ii) an Aqua Review was conducted and confirmed the coverage of this Warranty; (iii) Company is in full compliance with the PO terms and conditions, the Aqua MSA and this Warranty Agreement.
5. Exclusions to Warranty
The Warranty shall not apply to an attack caused by (i) any deployment, configuration and/or use of the Aqua Platform (or any portion thereof), for any or no reason, in a manner inconsistent with the requirements of Section 2 herein; (ii) Other types of enforcers are not included. Specifically, the warranty does not include micro/nano/vm enforcers.; (iii) Company’s negligence or misconduct; or (iv) other products and/or services which directly or indirectly cause the malfunction or non-performance of the Aqua Platform with respect to the subject containers.
6. Sole and Exclusive Remedy
The Warranty Payment is the only payment to which the Company shall be entitled to and will be Company’s sole and exclusive remedy and the extent of Aqua’s liability, directly or indirectly, with respect to the Cloud Native Attack and this Warranty.
7. Other Terms and Conditions
Any other terms and conditions of the PO or Aqua MSA shall be unaffected by this Warranty Agreement, except as expressly stated in the PO or Aqua MSA, as the case may be. In case of any conflict between the terms of this Warranty Agreement and the terms and conditions within the PO or Aqua MSA relating to the Warranty, the terms and conditions within this Warranty Agreement shall prevail.
This Warranty Agreement represents the complete agreement between the Parties concerning the Warranty granted hereunder and supersedes any and all prior agreements or representations between the Parties. Aqua may revise the terms of this Warranty Agreement or any of its Exhibits, from time to time in its discretion. If any provision of this Warranty Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Warranty Agreement is governed by and construed in accordance with the laws specified in the Aqua MSA, and the competent courts specified in the Aqua MSA shall have sole and exclusive jurisdiction over every dispute arising from, or in connection with this Warranty Agreement.