Radware DefensePro Subscription Terms and Conditions of Sale

Unless specifically set forth otherwise in a signed agreement between you (“you” or “Purchaser”) and Radware Ltd. or any of its affiliated entities (“Radware”), the following terms and conditions will apply to sale/purchase transaction of Radware DefensePro Subscription between you and Radware. Radware is not bound by, and expressly rejects, any terms and conditions of your purchase order or any other offer or document, whether oral or written, which attempt to impose any conditions that are additional, conflicting or inconsistent with the following terms and conditions. No purchase order or any other purchase document will be deemed accepted and biding unless Radware issues an order confirmation accepting same. No contract is formed between the parties unless Radware issues an order confirmation accepting a purchase order.

DefensePro Subscription Terms and Conditions of Sale

1. These Radware Terms and Conditions of Sales apply to the sale of Radware’s DefensePro subscription product and service offerings appearing on Radware’s price list from time to time (“ DefensePro Subscription”).

   The DefensePro Subscription price will include Radware’s maintenance and standard support services, as described in Radware’s Certainty Support Guide published by Radware from time to time at http://portals.radware.com/Customer/KB-Related/Radware-Certainty-Support-Guide/ (“CSG”) If needed, username and password to access the CSG are available upon request. It is clarified that the Defense Pro Subscription price does not include any other Radware services such as professional services.

2. The initial term of the DefensePro Subscription shall be three (3) years, unless terminated sooner as provided herein (“Initial Term”). At the end of the Initial Term or any of the subsequent Extension Term(s) (as defined below), you will be entitled to extend the term as follows:
   (i)

   Extend the term for one or more additional 12-month period(s) ("Extension Term") on the same terms and conditions as in the Initial Term; or
   (ii)

   Extend the term for a one time additional three (3) years period on the same terms and conditions as in the Initial Term and, upgrade your DefensePro Subscription appliance to a new appliance. The upgraded DefensePro Subscription appliance will be the then available and equivalent appliance to your previous DefensePro Subscription appliance. This upgrade will be subject to such future appliance availability; Your DefensePro Subscription license will be equivalent to the license in the Initial Term for price, mitigation and legitimate traffic capacity; In addition, you will be entitled to six (6) months overlap support for both DefensePro Subscription appliances (old and new); Radware does not commit that the new DefensePro Subscription appliance will be backward compatible.
   (iii)

   IF YOU DECIDE NOT TO EXTEND THE INITIAL TERM OR UPON FAILURE TO PAY THE SUBSCRIPTION FEE, THE LICENSE TERM SHALL EXPIRE AND THE DEFENSEPRO APPLIANCE SHALL STOP ALL MITIGATION AND ANY ADDITIONAL FUNCTIONS. ALL TRAFFIC SHALL FLOW THROUGH THE DEFENSEPRO APPLIANCE DIRECTLY TO YOUR NETWORK WIHTOUT ANY INSPECTION MITIGATION, REPORTING OR OTHER CAPABILITIES (“BYPASS MODE”). YOU ACKNOWLEDGE AND AGREE THAT ONCE THE DEFENSEPRO APPLIANCE ENTERS INTO BYPASS MODE, RADWARE SHALL NOT BE LIABLE FOR THE DEFENSEPRO APPLIANCE OPERATION NOR TO ANY CONSEQUENCES ARISING FROM THE BYPASS MODE, INCLUDING BUT NOT LIMITED TO, DDOS AND OTHER CYBER SECURITY ATTACKS ON YOUR ASSETS.
3. Unless stated otherwise in Radware’s invoice or in the invoice of Radware’s distribution channel issued to you (as applicable) or unless otherwise agreed in writing you will pay the annual DefensePro Subscription fees for each 12-month period in advance. Payment will be made by either wire transfer or by a Letter of Credit. All payments shall be made in US Dollars. You shall bear any and all bank fees and commissions resulting from any transfer or Letter of Credit.
4. All amounts due to Radware shall be paid without deduction or set-off or counter claim, free and clear of any restrictions or conditions, and without deduction for any and all taxes levied on the manufacturing, sale, lease, delivery or use of any the DefensePro Subscription. Purchaser shall be responsible for the payment of all such taxes and for providing Radware with tax-exemption certificate(s) acceptable to the relevant taxing authorities, where applicable.
5. In the event you fail to timely pay the annual subscription fees, you will receive a 30 days’ notice to cure the non-payment breach and if the breach continues, the DefensePro Subscription appliance shall enter into Bypass Mode.
6. You hereby agree that the DefensePro subscription license granted herein shall not be construed as a software time bomb, trap door, or any other form of unlawful software agent. The DefensePro Subscription license granted to you is intended solely to manage the DefensePro Subscription duration and access to the software during the paid for term and does not contain any hidden or malicious code designed to disrupt, disable, or otherwise impair the DefensePro Subscription software's functionality beyond the agreed subscription term as detailed in Section 2 above.
7. All purchase orders submitted by you either directly to Radware or indirectly to Radware’s distribution channels (as applicable), will be irrevocable and non-cancellable and the purchased items included therein non-returnable and non-terminable, unless you have requested amendments to these Terms and Conditions of Sale, and your request has been accepted by Radware and become part of this negotiated document.
8. Purchase orders for DefensePro Subscription must be issued by you at least 45 days prior to the requested delivery date. Changes in delivery schedules, product type or product quantities must be made in writing at least 30 days prior to the scheduled delivery dates.
9. Unless otherwise agreed between the parties, title and risk of loss or damage to the DefensePro Subscription appliance will be upon delivery EXW Incoterms 2020.
10. Product warranty, DOA, RMA, end of life and maintenance and support services are provided pursuant to the CSG.
11. Exclusive remedies for failure of warranty are repair, replacement, reperformance of service or pro rata refund of subscription fee.
12. EXCEPT AS EXPLICITYLY SET FORTH OTHERWISE IN THESE AGREED TERMS AND CONDITIONS OF SALE, THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED AND EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS OF SALE ORMANDATORILY PROVIDED BY THE APPLICABLE LAW, RADWARE’S PRODUCTS AND ANY SERVICES AND ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED.
13. All intellectual property rights embodied in the DefensePro Subscription are exclusively owned by Radware. Software is licensed under Radware’s End User License Agreement published at https://www.radware.com/documents/eula/. In case of a conflict or inconsistency between these Terms and Conditions of Sales and Radware’s End User License Agreement, these Terms and Conditions of Sales will govern and prevail over Radware’s End User License Agreement.
14. You may not use or otherwise export or re-export, directly or indirectly, any products and/or services except as authorized by United States law and the laws of the jurisdiction in which the products and/or services were obtained (“Relevant Authority”), including, but not limited to, anti-boycott, export control, sanction, customs, and shipping laws. You will be solely responsible for obtaining any license from the Relevant Authority required to export or re-export such products, and their components, and to comply with applicable Relevant Authority government export regulations.
15. You agree to comply with any applicable anti-corruption laws which are in force from time to time which may include but are not limited to the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act of 1977 ("FCPA"), as well as the laws of the jurisdiction in which the products and/or services were obtained.
16. These Terms and Condition of Sale shall be governed and construed in accordance with the substantive laws of, and venue will be located in: (i) Israel if Purchaser is located in Israel; (ii) England and Wales if Purchaser is located in EMEA; (iii) Singapore if Purchaser is located in APAC; and (iv) the state of New York for all other Purchaser locations.
17. Neither party shall be liable to the other party for any special, indirect, incidental or consequential, exemplary or reliance damages, losses or expenses (including without limitation, loss of profits, loss of information, loss or corruption of data, loss or interruption of business) arising from or in any way connected with the DefensePro Subscription purchased by Purchaser, however caused, and whether based on contract, tort (including negligence), equity or other theory of liability whatsoever, even if such party has been advised of the possibility of such damages or losses or expenses. Without derogating from the foregoing, in no event shall a party’s total aggregate liability to the other party exceed the total annual contract value fees (“ACV”) received by Radware for the DefensePro Subscription services purchased by the Purchaser that are the subject matter of the claim during the period of 12 months preceding the event giving rise to the damage. This section will survive the termination/expiration of any sale/purchase document between Radware and Purchaser. The foregoing limitations will not apply with regard to damages arising from a party’s fraud or willful misconduct or any other mandatory exception under applicable law.
18. Except for payment obligations, neither you nor Radware shall be liable to the other, nor be deemed to be in default under, or in breach of any provision of, these Terms and Conditions of Sale for the nonperformance or delay in performance of any of your or Radware’s obligations (respectively) under these Terms and Conditions of Sale when such nonperformance or delay is due to Force Majeure Events. “Force Majeure Events” means: (i) acts of God, (ii) flood, fire, earthquake, tornado, tsunami, storm or explosion, (iii) war, invasion, riot, or other civil unrest, (iv) pandemics, epidemics, or quarantine restrictions, (v) government regulations or orders, (vi) action by any governmental authority, (vii) national or regional emergency, (viii) strikes, labor stoppages or slowdowns or other industrial disturbances, (ix) shortage of adequate power or transportation facilities, or (x) any other event which is beyond the reasonable control of such party. The party suffering a Force Majeure Event shall give notice of such Force Majeure Event as soon as reasonably practicable to the other party.
19. You are the controller of personal data transferred by you or by your customers to Radware and Radware is the data processor. Radware and Purchaser will each comply with its respective obligations as data processor/controller under applicable privacy & data security laws and, where applicable, pursuant to the Radware DPA available at https://www.radware.com/documents/dpa-customer/. Purchaser authorizes Radware to engage other processors for carrying out processing activities on behalf of the Purchaser including the sub-processors listed at https://www.radware.com/documents/cloud-subprocessors/.
20. If one or more terms of these Terms and Conditions of Sale become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from this these Terms and Conditions of Sale. All remaining terms of these Terms and Conditions of Sale shall remain in full force and effect.