WATERFALL END-USER LICENSE AGREEMENT
This End-User License Agreement (this “EULA”, this “Agreement”) is a binding agreement between You (both the individual installing the Product and any legal entity on whose behalf such individual is acting) (hereinafter “You” or “Your”) and Waterfall Security Solutions Ltd. (”WATERFALL”) regarding the use of the Software (as defined herein) and Product Documentation (as defined herein). By installing and/or using all or any portion of the Software and/or the Product (as defined herein), You accept all the terms and conditions of this Agreement.
TAKING ANY STEP TO SET-UP, USE OR INSTALL THE SOFTWARE AND/OR PRODUCT CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. YOU MAY ONLY USE THE SOFTWARE IN ACCORDANCE WITH, AND SUBJECT TO, YOUR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY UNDER ANY DOCUMENT EXCHANGED OR SIGNED BETWEEN YOU AND WATERFALL, THE TERMS OF THIS AGREEMENT GOVERN THE USE OF THE SOFTWARE AND PRODUCT DOCUEMTNATION, AND THE TERMS OF THIS AGREEMENT SHALL PREVAIL OVER ANY CONTRADICTING PROVISION IN ANY OTHER DOCUMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE AND/OR PRODUCT. INSTEAD, PROMPTLY CONTACT WATERFALL FOR INSTRUCTIONS ON RETURNING THE SOFTWARE AD/OR PRODUCT IN ACCORDANCE WITH WATERFALL’S RETURN POLICIES.
- The Product and Software. The term ”Product” in this Agreement refers to any Waterfall product provided to You, including, but not limited to: (i) any and all hardware components and/or the Software (as defined below); (ii) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disks, CD-ROMs or other media provided to You; (iii) all accompanying manuals and other documentation; and (iv) all enhancements, upgrades, modified versions, and extensions thereto that may be provided by WATERFALL (directly or indirectly) to You from time to time (the “Enhancements”). The term “Software” in this Agreement shall refer to the Waterfall’s software components embedded within or provided in connection with any Product, including, any upgrades, modified versions, updates and additions thereof, if any (collectively, the “Updates”). The term “Product Documentation” in this Agreement shall refer to those items described in subsections (ii) and (iii), and any Enhancements thereto.
- Grant of License. Subject to Your compliance with the terms of this Agreement, WATERFALL grants to You a limited, non-exclusive, non-transferable, non-sub-licensable, license to use the Software on a single System as defined below, and to make one backup copy of the Software provided in connection with the Product, provided Your backup copy is not installed or used on any server or computer, and further provided that such copy must be maintained in accordance with the confidentiality obligation in Section 4 below. WATERFALL also grants to You a limited, non-exclusive, non-transferable, non-sub-licensable, license to use the Product Documentation solely in connection with Your use of the Product and/or Software. You may only use the Software and Product Documentation for Your internal business purposes and You may not make any commercial use of the Software or Product Documentation, nor grant any third party any right to use or access the Software or Product Documentation for any reason. The term “System” means one transmitting server/computer and one receiving server/computer.
- No Ownership. WATERFALL does not grant you any ownership rights, interest, title or other proprietary rights in the Software and the Product Documentation. Rather, You have a license to use the Software and the Product Documentation pursuant to the terms of this Agreement. All other rights, title and interests of the Software and the Product Documentation, including all copyrights, trade secrets, and other intellectual property rights, shall remain at all times solely with WATERFALL and/or its third-party licensors.
- Confidentiality. The Software and the Product Documentation contain confidential and proprietary information and trade secrets of WATERFALL. You agree keep in strict confidence and not disclose or use in an unauthorized manner the Software and Product Documentation and that any unauthorized disclosure, use, or copying of the Software or Product Documentation may cause WATERFALL irreparable harm and serious financial loss. Accordingly, You shall treat the Software and the Product Documentation as confidential and shall securely store and protect the Software and Product Documentation in at least the same manner as You store and protect Your own confidential material of a similar nature.
- Copyrights. The Software and the Product Documentation contain material that is protected by applicable patent, copyright, trade secret and other proprietary laws and by international treaty provisions. All copyright or other proprietary notices placed on or contained within the Software and the Product Documentation shall be maintained, and You may not alter, remove, modify, or suppress any such notices. You will also ensure that all such proprietary notices and confidentiality legends appear on all allowed copies, if any, of the Software and the Product Documentatio Please see https://waterfall-security.com/legal/legal-page/ for further information.
- Updates. WATERFALL, at its discretion, may provide Updates to the Software. All Updates will be provided to You by WATERFALL on a license exchange basis and may be licensed to You with additional and/or different terms. You agree that by using any Update You voluntarily terminate Your license to use any previous version of the Software, except that You may continue to use previous versions of the Software on Your System only to assist in the transition to the Update, provided that: (i) the Update and the previous versions are installed on the same System; and (ii) the previous versions or copies thereof are not transferred to another party or System. You agree that any obligation that WATERFALL may have to support the previous versions of the Software may end, at WATERFALL’s discretion, upon availability of the Update.
- Restrictions. Without limiting the anything in this Agreement, You agree not to, and not to allow or assist any third party to: (i) use the Software or Product Documentation other than in compliance with the terms of this Agreement; (ii) publish, display, disclose, sell, distribute, rent, lease or donate the Software or the Product Documentation; (iii) copy (except as allowed under this Agreement), alter or reproduced the Software or the Product Documentation or create derivative works based on the Software, Product Documentation or any part thereof; (iv) use the Software, Product Documentation or any of the concepts or ideas contained in the Software and Product Documentation to develop any other product; (v) modify, alter, reverse engineer, dissemble or decompile the Software or any part thereof, or incorporate the Software into any other software, or extract the Software from the Product within which it is embedded, or attempt to create the source code from the object code of the Software; or (vi) transmit the Software over any network or between any devices, although You may use the Software to make such transmissions of other materials and You may transfer the Software to another System You own as long as You only use the Software on one System at a time. Please be aware that Your use of the open source and any third-party software embedded within or included with the Product is subject to the terms of the licenses of the respective third parties.
- Limited Software Warranty. WATERFALL warrants to You that the encoding of the software program on the media on which the Software is furnished will be substantially free from defects in material and workmanship, and that the Software, as it exists at the date of delivery, shall operate according to its user manual in all material respects for a period of ninety (90) days from the date the Software (or Product) is delivered to You (the “Limited Software Warranty”). Notwithstanding the Limited Software Warranty, WATERFALL does not guarantee nor make any representations with regard to any open source or third-party software included in the Product. If during the ninety (90) day period, the Software does not comply with the Limited Software Warranty, You must promptly notify WATERFALL (“Defected Software Notice”) of the defective Software. FAILURE TO GIVE TIMELY NOTICE OF A CLAIMED SOFTWARE DEFECT UNDER THIS WARRANTY SHALL RESULT IN YOUR WAIVER OF SUCH CLAIM. The Limited Software Warranty shall not apply if Your use of the Software is not in compliance with the Agreement. WATERFALL’s entire liability and Your sole and exclusive remedy under this Limited Software Warranty shall be, at WATERFALL’s sole discretion, either: (i) repair or replacement of the Product or media that does not meet this Limited Software Warranty or, (ii) refund to You the price paid to WATERFALL for the Product including the defective Software. For clarity, only a single refund shall be provided for both the return of a Product and the Software embedded or included as part of that Product. To submit a claim under the Limited Software Warranty email us at: email@example.com. In the event WATERFALL replaces a defective Product and/or Software, the replacement/repaired Product/Software will be covered under the Limited Software Warranty for the remainder of the original ninety (90) day period of the defective Product/Software. This Limited Software Warranty is only for Your benefit and is not transferable. No other person may act on Your behalf for the purpose of claiming or exercising any rights or benefits under or in connection with this Limited Software Warranty. WATERFALL GRANTS NO OTHER WARRANTY WITH RESPECT TO THE SOFTWARE OR PRODUCT DOCUMENTATION TO YOU OR TO ANY OTHER PERSON OR ENTITY, EITHER EXPRESS IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WATERFALL DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. EXCEPT AS PROVIDED HEREIN, THE SOFTWARE AND PRODUCT DOCUMENTATION ARE PROVIDED “AS IS” AND WITH ALL FAULTS.
- Support Services. You may purchase additional support services from WATERFALL pursuant to separate terms and conditions (the “Support Services”). If You subscribe to these Support Services, WATERFALL will provide additional support for the Software and/or Product as further described in the terms and conditions for the Support Services.
- Limitation of Liability. WATERFALL SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, MULTIPLE OR INDIRECT OR OTHER SIMILAR DAMAGES SUFFERED BY YOU, OR ANY PERSON CLAIMING THROUGH YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR THE PRODUCT DOCUMENTATION (INCLUDING DAMAGES FOR LOSS OF PROFIT, LOST REVENUE, LOSS OF BUSINESS, LOSS OR CORRUPTION OF DATA, LOSS OF CUSTOMERS AND CONTRACTS, LOSS OF GOODWILL, THE COST OF PROCURING REPLACEMENT GOODS OR SERVICES, AND REPUTATIONAL DAMAGE), EVEN IF YOU HAVE ADVISED WATERFALL OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY). WITHOUT LIMITING THE FOREGOING, THE LIABILITY OF WATERFALL ARISING UNDER OR RELATING TO THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, SHALL BE LIMITED TO RECOVERY OF DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT AND/OR SOFTWARE (INCLUDING PRODUCT DOCUMENTATION) GIVING RISE TO SUCH CLAIM. The limited warranty, limited liability and exclusive remedies provisions set forth herein are fundamental elements of this Agreement, and You accept and confirm that WATERFALL would not be able to provide the Software and Product Documentation on an economic basis without such limitations.
- Termination. Notwithstanding anything to the contrary herein, this Agreement is effective until terminated pursuant to the provisions of this Section. You may terminate this Agreement at any time by destroying or returning to WATERFALL all copies of the Software and Product Documentation in Your possession or under Your control. If You choose to destroy the Software and Product Documentation, You must provide written notice to WATERFALL which will confirm that You have acted in accordance with the provisions hereof. WATERFALL may terminate this Agreement and the license granted hereunder, if the WATERFALL Terms and Conditions are terminated or if WATERFALL finds that You have violated the terms of this Agreement, or in case of nonpayment of the applicable fees for the Product or the Services provided by WATERFALL at the time, and such failure is not remedied by You within 10 days. Upon notification of termination, You agree to destroy or return to WATERFALL all copies of the Software and Product Documentation in Your possession or under Your control and to certify in writing, inter alia, that all known copies, including backup copies of the Software and Product Documentation have been destroyed or returned. All provisions relating to proprietary rights and limitation of warranty and liability shall survive the termination of this Agreement.
- Compliance with Laws. You shall comply with all applicable laws, governmental rules, regulations and codes related to the use, possession, storage and access to the Product, including the Software and Product Documentation. Without limiting the foregoing: (i) You shall be responsible for obtaining and maintaining all necessary governmental registrations, permits or approvals as required for the purchasing and/or importing and/or storage and/or using of the Products and the fulfilling of its obligations hereunder; and (ii) You agree that You will not directly or indirectly participate in any act that constitutes a violation of United States Foreign Corrupt Practices Act (the “FCPA”), the Mexican local law regarding anticorruption, including the Ley Federal Anticorrupcion en Contractataciones Publicas, the UK Bribery Act and all other applicable national and local laws and regulations relating to the subject matter thereof, including both the anti-bribery and accounting provisions of the FCPA (collectively, the “Bribery Laws”). You represent and warrant that each and every act, practice and transaction pursuant to or in furtherance of the Agreement by You and each of Your employees and other representatives has been and shall be in full compliance with the Bribery Laws.
- Export. You acknowledge that the Product, including the Software and Product Documentation, may be subject to export control laws applicable to You or in Your jurisdiction, including, without limitation, the United States and Israel. You understand and acknowledge that upon entry of the Product into the United States, it becomes subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all of Your obligations with respect to the Product shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, and Bureau of Export Administration. You represent and warrant that You will comply in all respects with the export and reexport restrictions applicable to the Product, including the Software and Product Documentation, and will otherwise comply with all laws and regulations in effect from time to time applicable to You and/or the Product, including the Software and Product Documentation. You represent and warrant that You are not: (i) located in, under the control of, or a national or resident of (a) Cuba, North Korea, Iran, Syria or the Crimea, Donetsk, and Luhansk Regions of Ukraine, or (b) any other country or region which is subject to embargo or other sanctions of the United States or Israel which may apply to You, Your region or jurisdiction, or the Product, including the Software and Product Documentation, or (ii) on the U.S Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
- Governing Law. This Agreement will exclusively be governed by and construed in accordance with the substantive laws in the State of Israel, without regard to its conflict of law rules. The applicable courts of Tel-Aviv-Jaffa shall have exclusive jurisdiction over all disputes arising from or relating to this Agreement, and You agree that You will not bring any action in any other court, raise a defense regarding the jurisdiction of these courts, and will not attempt to remove any action from these courts.
- General Provisions. (i) You may not assign or transfer any rights or obligation in this Agreement without the prior written consent of WATERFALL. Any attempted assignment or transfer in violation of this Section will be deemed void. WATERFALL reserves the right to assign this Agreement to any of its affiliates or in the scope of a sale of all or substantially all of WATERFALL’s assets or shares, carve-out transaction, merger (including a reverse merger), amalgamation or any other similar transaction; (ii) If any term or provision of this Agreement is unenforceable or invalid, this Agreement shall be ineffective only to the extent of such provisions, and the enforceability or validity of the remaining provisions of these terms shall not be affected thereby, unless the ineffectiveness of such term or provision materially undermines the purpose and intent of the parties hereto, in which case these terms shall be null and void; (iii) You may provide WATERFALL feedback or suggestions regarding the Products, including the Software and Product Documentation. WATERFALL will be free to use such feedback and suggestions without any restrictions or obligations to You, and You hereby provide any rights that you have in the feedback and suggestions to WATERFALL; (iv) Any waiver of any provision of this Agreement shall be effective only if in writing and shall only apply to the specific breach being waived and not any prior, concurrent or subsequent breach of accruing right or remedy; (v) No delay or omission by WATERFALL in exercising any right under this Agreement shall operate as a waiver of that or any other right; and (vi) Nothing in this Agreement, express or implied, shall create any third party beneficiary rights nor entitle any person to enforce any provision of the Agreement under the Contracts (Rights of Third Parties) Act of 1999, and nothing in this Agreement shall confer upon any person or entity, other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities, except as expressly provided herein.