1. Right to use the Services; 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 Client a license to use Incapsula’s name and logo on its website solely to identify Incapsula as Client’s service provider. They may not be used in connection with any other product or service without Incapsula's written permission. Client shall not remove, alter, or obscure any proprietary notices of Incapsula.
Client consents to Incapsula and its affiliates using its name and logo to identify Client as a customer of Incapsula Services. Any use shall be subject to compliance with guidelines that Client may deliver to Incapsula from time-to-time regarding the use of its name and logo. This consent terminates upon termination of the Services.
2. Access Requirements and Restrictions
Except as explicitly set forth herein, Client is solely responsible for acquiring and maintaining all of the equipment, software and services necessary to access and make use of the Services, including without limitation paying all fees and other costs related to internet access and for configuration changes that may be required to route activity to the Services. Client 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. Client agrees that it will not access the Services through unauthorized means. As a prerequisite for provision of the Services, Client 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 procedure and shall fully comply with all ICANN rules and regulations and any applicable internet registrar procedures. In the event of expiration or termination of any Services that require DNS routing, Client will be solely responsible for rerouting its DNS traffic back to its IP address and Vendor, Incapsula, its partners and suppliers shall have no liability for Client’s failure to do so.
3. Protection of Information
Client 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. Client agrees that for the purpose of enabling the provision of the Services, Incapsula may cache on its servers content and/or meta data contained in Client’s site and/or sent to Client’s site (“Client’s Content”), including without limitation rerouting Client’s Content and all traffic directed to Client’s site to another Incapsula designated IP address. Client hereby grants Incapsula and its partners a nonexclusive, worldwide, fully paid-up, royalty-free license to use, transfer, display, minimize and compress Client’s Content solely for the purpose of providing and improving the Services. Such license will apply to any form, media, or technology now known or hereafter developed. Client hereby warrants and represents that: (i) it is the sole owner of and/or holds all necessary rights in and to Client’s Content; (ii) there are no restrictions which prevent or restrict Client from granting Incapsula the license above. Incapsula is not a back-up service and does not keep a copy of Client’s Content. If Client’s right to use the Services is terminated or is not renewed, Incapsula may, without notice, deny access to any of Client’s Content or delete or deny access to any data that may remain in its possession or control. Incapsula acknowledges that content of Client’s site and information its users send to the site is Client’s confidential information and it will not disclose such information to third parties.
Client agrees to indemnify, defend and hold harmless Incapsula, its officers, directors, employees, stockholders, affiliates, agents and suppliers, from and against any and all third party claims and the related damages, losses or expenses, including but not limited to attorneys' fees and costs, arising out of or in any way connected with Client’s Content or websites, including without limitation any claims relating to the accessibility of Client’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 or if instructed to do so by any legal authority.
Client 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 Services to a national or resident of (i) Crimea, Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government restricts export to such countries or regions); (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 location to which such export or re-export is restricted or prohibited without an export license or approval. Client 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 region or on any such prohibited party list.
8. Acceptable Use
Client agrees to comply with all applicable rules regarding online conduct and the collection and transmission of data, including all laws, rules, codes and regulations of the countries in which Client operates and from which it gathers data.
The Services are 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, Client's usage cannot adversely affect the performance of other customers' sites.
Client agrees that it will not:
- Transmit data unless it has obtained all authorizations required by law or by the owners of the data, including any consent required from data subjects for collection, use and transmission to other countries;
- Transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
- Transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Interfere with or disrupt the Service or servers or networks connected to the Service;
- Transmit, or otherwise make available any content that violates any applicable laws or regulations, including export laws and regulations, transmit any spam or otherwise duplicative or unsolicited messages in violation of any applicable laws, transmit or post content that is harmful, threatening, abusive, defamatory, or libelous or transmit or post any material that encourages conduct that could constitute a criminal offense or promotes harm or injury against any group or individual.
Client agrees to be solely responsible for compliance with these terms by the users of Client’s sites.
Client agrees that if, at Incapsula’s and its partners’ sole determination, Client is using the Services in violation of this Section or creates a potential adverse impact on Incapsula’s, its partners’ or its suppliers’ systems, business or customers, Incapsula, its partners or suppliers may flag or block content, block access to Clients sites from particular jurisdictions or suspend or terminate Client’s access to the Services without notice to Client and Incapsula will have no liability to Client regarding the deletion, blocking or removal of content or the suspension or termination of Services.
VENDOR, 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:
- 1. THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS;
2. THE APPLICABLE SITE TO WHICH CLIENT’S TRAFFIC IS ROUTED WILL BE AVAILABLE AT ALL TIMES, UNINTERRUPTED OR FREE FROM DOWNTIME OR INOPERABILITY; OR
- 3. THE SERVICES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO BREACH OF THE SERVICES’ SECURITY MEASURES.
10. Limitation of liability
IN NO EVENT SHALL INCAPSULA, VENDORS OR SUPPLIERS HAVE ANY LIABILITY 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, WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY EVEN IF INCAPSULA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AND AGGREGATE LIABILITY OF INCAPSULA, VENDORS AND THEIR AFFILIATES AND SUPPLIERS TO CLIENT OR ANY THIRD PARTY SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
CLIENT ACKNOWLEDGES AND AGREES THAT INCAPSULA AND VENDOR HAVE OFFERED THE SERVICES AND SET THEIR PRICES 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, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CLIENT, VENDOR AND INCAPSULA. INCAPSULA WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Without granting any right or license, Incapsula agrees that the foregoing shall not apply with respect to any information that Client can document (i) is or becomes (through no improper action or inaction by Client or any affiliate, agent, consultant or employee of Client) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from Incapsula. Client may make disclosures required by law or court order provided Client uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows Incapsula to participate in the proceeding.
13. Applicable Law
Notices shall be sent by Client by email to [email protected] and by Incapsula by posting a notice on Client’s account page or by sending an email to the Client email address. Each party may update its contact information by providing such a notice. Notice will be deemed given twenty-four hours after posting or after an email is sent to the most recent address provided by the other party.
17. PLAN SPECIFIC TERMS
- a.Free, Personal and Business Plans
i. Plan limitations. Plans are limited to 5 Mbps of clean traffic calculated according to the 95thpercentile.
ii. Termination and Suspension. Incapsula reserves the right to suspend provision of Services to Client and/or terminate the Services without notice if: (i) Client fails to timely pay any undisputed amounts, if applicable; or (ii) Client breaches the terms of Acceptable Use.
b. Enterprise Plans
i. Plan Limits.
1. If the plan’s clean bandwidth is exceeded according to the 95th percentile, Incapsula will provide Client with advance notice and Client can either upgrade the plan to accommodate for the usage for the remainder of the Term or pay overages of $400/10Mbps per month.
2. On demand DDoS plans allow Client to route traffic through the Incapsula network only when under a DDoS attack. Clean traffic bandwidth overage charges will apply if Client (a) uses the DDoS service when no DDoS attack has occurred or (b) does not route its traffic off the Incapsula network within 36 hours after a DDoS attack has ended.
3. If a DDoS attack exceeds the Client’s purchased DDoS threshold, Incapsula may suspend service and stop processing Client’s traffic, until such time when Client upgrades to the applicable Service plan based on their actual DDoS attack size.
ii. Service Level Agreement.Incapsula Services are eligible for the Incapsula Service Level Agreement. Incapsula’s SLA, if applicable, shall be fixed for the duration of the Term of Client’s Incapsula Order From. If the Services are renewed, the version of the SLA that is current at the time the renewal term commences will apply throughout the renewal term.
iii. Credits.Credits, if applicable, shall be calculated in accordance with the SLA. The provision of Credits shall be Client’s sole and exclusive remedy for any violation of the level of service. Credits shall only be credited against fees associated with the applicable Service for which the outage had occurred.
1. Term. The term of the Services shall commence on the Service Start Date set forth in the Order Form and shall continue for the duration of the Term set forth in the Order Form (the “Term”). The Services will automatically renew for an additional term (“Renewal Term”) equal to the length of the Term upon expiration of the Term and any Renewal Term, unless earlier terminated in accordance with the terms herein. If Client does not desire to renew the Services for any additional term, it must provide Incapsula notice of such intent at least thirty (30) days prior to the expiration of the Term or the then-current Renewal Term.
2. Termination and Suspension.Either party may terminate the Services upon written notice for material breach, provided, that the terminating party has given the other party at least thirty (30) days prior written notice of the breach and such breach is not cured within such thirty (30) day period. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach.
3. Client Termination.Client may terminate the Services immediately upon Client’s receipt, in accordance with the SLA, of a third Credit (as defined in the SLA) within any rolling three month period, except that if Client fails to exercise such termination right within thirty days of its receipt of said third Credit, such termination right shall be waived until Client again receives a third Credit in any rolling three month period.
4 .Incapsula termination/suspensionIncapsula reserves the right to suspend provision of Services to Client and/or terminate the Services without notice if: (i) Client fails to timely pay any undisputed amounts; or (ii) Client breaches the terms of Acceptable Use; or (iii) Client refuses to upgrade to the applicable Service plan based on their actual DDos attack size, as set forth in Section 17.b.1.3 above. If Incapsula terminates the Services due to Client’s breach of the terms of Acceptable Use or if Client terminates the Services (or refuses to upgrade to the applicable Service plan based on their actual DDos attack size, as set forth in Section 17.b.1.3 above) and such termination is not in accordance with Section 4i or 4ii above, Client agrees to pay Incapsula the number of months remaining on the then current Term times the Monthly Services Fee set out in the Fee Schedule in the Order Form.
V. Data Across Border Provision. Client may request that Incapsula restrict Client’s traffic processing to a subset of data centers in accordance with the restrictions set forth in the SLA. However, in adverse situations, Incapsula may temporarily route Clients data outside of the specific geographical location and/or data center in order to maintain Service availability. Any request for data center restrictions shall be subject to submission by Client of a corresponding support ticket in Incapsula’s technical support ticket system.