B. Maintenance and Support
Incapsula will provide the Services in accordance with its standard Service Level Agreement (SLA) then in effect. Other than as set forth in the Service Level Agreement, Incapsula has no obligation to provide support, maintenance, upgrades or modifications to the Services.
C. Service Access
Other than as set forth in the Service Level Agreement, Incapsula does not represent or warrant the accessibility of the Service and temporary suspension of access to the Services may occur without notice for reasons beyond our control. End User agrees that except for the Service Credits described in the Service Level Agreement, neither Incapsula nor its third party providers will be liable to End User in any way for the termination, suspension, interruption, delay of any of the Services.
D. Trademark License; Ownership Rights
Incapsula™, the Incapsula logo, and other Incapsula graphics, logos and service names are trademarks, service marks, or other trade dress of Incapsula or its affiliates. Incapsula’s trademarks, service marks, and trade dress have inherent meaning and substantial value because of their restricted use. Incapsula hereby grants End User a license to use Incapsula’s name and logo on its website solely to identify Incapsula as End User’s service provider. They may not be used in connection with any other product or service without Incapsula’s permission.
All Intellectual Property Rights evidenced by or embodied in the Service, are and shall be owned exclusively by Incapsula. The rights granted by this Agreement are limited to those expressly stated and no additional rights or licenses are being granted by implication or otherwise. “Intellectual Property Rights” means all patents, trademarks, rights associated with works of authorship, including copyrights, rights relating to the protection of trade secrets and confidential information and any other proprietary rights relating to intangible property.
E. Access Requirements and Restrictions
End User is solely responsible for obtaining, paying for, repairing and maintaining all of the equipment, hardware, software, services and materials that are required to access the Services. Without limiting the foregoing, End User must pay all charges, taxes, and other costs and fees related to obtaining its own Internet access, telephone, computer, and other equipment and any communications or other charges incurred by End User to access the Services. End User may access the Services only through the interfaces and protocols provided or authorized by Incapsula and its partners and agrees to set up, maintain and use the Services in strict compliance with Incapsula’s and its partners’ instructions. End User agrees that it will not access the Services through unauthorized means. As a prerequisite for provision of the Services, End User hereby agrees to ensure that all traffic to its site will be rerouted to the applicable IP address as set forth in the applicable Incapsula set up set up procedure and by doing so shall fully comply with all ICANN rules and regulations and any internet registrar procedures in connection therewith. In the event of expiration or termination of any Services that require DNS routing, End User will be solely responsible for rerouting its DNS traffic back to its IP address and Incapsula, its partners and suppliers shall have no liability for End User’s failure to do so.
F. Protection of Information
Upon registration and/or use of the products and services End User shall be required to provide information (including user name, password and billing information). End User agrees to provide true, accurate, complete and current information. End User is solely responsible for maintaining the confidentiality of any passwords and account information required to access Services, for all acts that occur in connection with End User’s account and to immediately notify Incapsula of any unauthorized use of End User’s account. End User is solely responsible for any information it provides in connection with the Services and its use thereof.
End User is solely responsible for protecting information on its computers such as by installing anti-virus software, updating applications, password protecting files, and not permitting third party access to its computers.
The Services may save a copy of End User’s site to a server operated by Incapsula or a third party. Incapsula does not warrant that it will maintain a back-up copy of End User’s data saved to such servers. Incapsula is not a back-up service and End User should keep a copy of the content on its site for back-up purposes. If End User’s license to use the Services is terminated, is not renewed, or is otherwise discontinued for any reason, Incapsula may, without notice, delete or deny access to any of End User’s content or meta data that may remain in its possession or control.
End User agrees that Incapsula may download and cache on its servers documents, information and/or any content and/or meta data contained in End User’s site and/or trafficked to End User’s site (“End User’s Content”), including without limitation reroute End User’s Content and all traffic directed to End User’s site to another Incapsula designated IP address, for the purpose of enabling the provision of the Services. End User hereby grants Incapsula and its partners a nonexclusive, worldwide, fully paid-up, royalty-free license to use, host, transfer, display, minimize and compress the content and material on its web sites solely for the purpose of enabling the provision of the Services. Such license will apply to any form, media, or technology now known or hereafter developed. End User hereby warrants and represents that: (i) it is the sole owner of and/or holds all necessary rights in and to End User’s Content; (ii) there are no restrictions which prevent or restrict End User from granting Incapsula the license above.
End User agrees to indemnify, defend and hold harmless Incapsula, its officers, directors, employees, stockholders, affiliates, agents and suppliers, from and against any and all claims, liabilities, damages, losses or expenses, including but not limited to attorney’s fees and costs, arising out of or in any way connected with End User’s access to or use of the Services, including without limitation any third party claims relating to the accessibility to End User’s website and any collection, use, or export of personal information or other data.
Without limiting the foregoing, the Services are not available where they are illegal to use, and Incapsula reserves the right to refuse and/or cancel services to anyone at its own discretion if it believes that they are being used in violation of an applicable law.
End User agrees 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 such data to a national or resident of (i) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government restricts export to such countries); (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 country to which such export or re-export is restricted or prohibited without an export license or approval. End User agrees 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 on any such prohibited party list.
J. Acceptable Use
End User agrees to comply with all local rules regarding online conduct and the collection and transmission of data, including all laws, rules, codes and regulations of the country in which End User is located, countries from which it have gathers data and the country from which it accesses the Services.
End User acknowledges that the Services offer a platform to cache, serve, monitor and optimize web pages and web sites and is not offered for other purposes, such as remote storage. The Services are also a shared web caching service, which means a number of customers’ web sites are cached on the same server. To ensure that the Services are reliable and available for the greatest number of users, a customer’s usage cannot adversely affect the performance of other customers’ sites.
End User agrees that it will not:
End User agrees that if, at Incapsula’s and its partners’ sole determination, End User is using the Services in violation of this Section or creates an excessive burden or potential adverse impact on Incapsula’s, its partners’ or its suppliers’ systems, business or customers, Incapsula, its partners or its suppliers may flag or block content or suspend or terminate End User’s access to the Services without notice to End User and Incapsula will have no liability to End User regarding the deletion, blocking or removal of content or the suspension or termination of Services.
INCAPSULA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES , WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY EXPRESSED OR IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INCAPSULA MAKES NO WARRANTY THAT:
THE SECURITY MEASURES USED TO PROTECT USER CONTENT ARE USED IN CONJUNCTION WITH THE USER CONTENT “AS-IS” AND WITH NO ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
L. Limitation of liability
INCAPSULA AND ITS AFFILIATES AND SUPPLIERS ARE NOT AND WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF INCAPSULA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT DEROGATING FROM THE FOREGOING, THE TOTAL AND AGGREGATE LIABILITY OF INCAPSULA AND ITS AFFILIATES AND SUPPLIERS TO END USER OR ANY THIRD PARTY SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY END USER FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
END USER ACKNOWLEDGES AND AGREES THAT INCAPSULA HAS OFFERED ITS SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN END USER AND INCAPSULA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN END USER AND INCAPSULA. INCAPSULA WOULD NOT BE ABLE TO PROVIDE THE SITE, SERVICES TO END USER ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Incapsula may provide End User with notices, including those regarding changes to Incapsula’s terms and conditions, by email or by posting a notice on End User’s account page. Notice will be deemed given twenty-four hours after posting or after an email is sent to the most recent address provided by End User.
O. Stopping e-mail
Incapsula periodically sends out e-mail newsletters and other announcements to our users about services. If End User wishes to cease receiving these please contact us at: stopemail@Incapsula.com.
This Service Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by End User, but may be assigned by Incapsula without restriction. Any attempted assignment in violation of this Section shall be void.
Q. Applicable Law and Jurisdiction
This Agreement and any action related thereto shall be governed by the laws of the State of California, without regard to the conflicts of laws provisions thereof. The parties hereby consent to the exclusive jurisdiction and venue of state and federal courts located in Santa Clara County, California or for the purpose of any such action. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement.