These Simulint Terms and Conditions constitute a master agreement governing all Simulint products and services; however, provisions relating to specific products or services apply only to the extent that you have purchased, accessed, or used those particular products or services.
1. Definitions.
“Affiliate” is any company or organization that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control.
“Agreement” is these Simulint Terms and Conditions together with every Order.
“API” is an interface that allows different software applications to communicate with each other.
“Simulint Competitor” is any person or company that develops, distributes, or sells Internet security products or services that are similar to or compete with Simulint’s platform, products, or services.
“Simulint Data” means all the data produced by the Simulint Offerings—including correlation, contextual information, or detection details—but it does not include any data supplied by the Client.
“Simulint Tool” is any proprietary tool—whether software-as-a-service, software, hardware, or another type—that Simulint uses to deliver Professional Services as set out in the applicable Statement of Work (SOW). This term can also include Simulint’s products.
“Client” means as the context requires, in addition to the entity identified above, any Client Affiliate that places an Order or accesses any Offering, or benefits from using an Offering.
“Client Contractor” means any individual or entity (other than a Simulint Competitor) that: (i) has access or use of a Product under this Agreement solely on behalf of and for Client’s Internal Use, (ii) has an agreement to provide Client (or its Affiliates) services, and (iii) is bound to the confidentiality obligations covering Simulint’s Confidential Information.
“Client Contractor Services” are the products, services, or content developed or provided by Client Contractors. This includes but is not limited to third party applications complementary to the Offerings, implementation services, managed services, training, technical support, or other consulting services related to, or in conjunction with, the Offerings.
“Documentation” means Simulint’s end-user technical documentation included in the applicable Offering.
“Endpoint” is any device—whether a physical device (like a computer, server, laptop, or mobile phone) or a virtual one (such as a container or virtual machine image).
“Error” is a consistent, repeatable failure of a Product to work as described in its Documentation.
“Internal Use” means access or use solely for Client for its internal information security purposes. This is subject to the Sections entitled Affiliates, Orders and Payment, and Access and Use Rights. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Client or its Affiliates, or (ii) in any event, for the development of any product or service. Internal Use is limited to access and use by your and your Affiliates’ employees and Client Contractors (except as set forth in the Section entitled Client Contractors), in either event, solely on your behalf and for your benefit.
“Offerings” means, collectively, any Products, Product-Related Services, or Professional Services.
“Order” means any purchase order or other ordering document (including any SOW) accepted by Simulint.
"Original Baseline" means the number of Usage Units determined by Simulint following onboarding and verification of Client’s environment for the applicable Offerings.
“Product” means any of Simulint’s cloud-based software or other products ordered by Client as set forth in the relevant Order, along with any available APIs, the Simulint Data, any Documentation, and any Updates that may be made available to Client from time to time by Simulint.
“Product-Related Services” means the technical support services for certain Products provided by Simulint, training, and any other Simulint services provided or sold with Products. Product-Related Services do not include Professional Services.
“Professional Services” means any professional services performed by Simulint for Client pursuant to an SOW or other Order.
“Services” means all Product-Related Services or any Professional Services.
“Statement of Work” or “SOW” means a mutually-agreed, executed, document describing the Professional Services to be performed by Simulint for Client.
“Subscription/Order Term” means the period of time set forth in the applicable Order during which: (i) Client is authorized by Simulint to access and use the Product or Product-Related Service, or (ii) Professional Services may be performed.
“Updates” means any correction, update, upgrade, patch, or other changes made by Simulint to any Product and provided to Client by Simulint from time to time on an as-available basis.
"Usage Units" means the applicable consumption metrics used for billing Offerings, which may include users, devices, licenses, endpoints, monitored assets, identities, mailboxes, or other metrics specified in the applicable Order.
2. Affiliates, Orders and Payment.
2.1 Affiliates. Any Affiliate purchasing, using, or accessing any Offering hereunder, or benefitting from the Client’s use of an Offering, will be bound by and must comply with all terms and conditions of this Agreement. The Client signing these Simulint Terms and Conditions will remain responsible for Client’s Affiliates’ acts and omissions unless Client’s Affiliate has entered into its own Terms and Conditions with Simulint.
2.2 Orders. Only those transaction-specific terms stating the Offerings ordered, quantity, price, payment terms, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Client or reseller purchase order) will have any force or effect unless a particular Order is executed by an authorized signer of Simulint and returned to Client (or the applicable reseller). If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Offerings ordered on such Order.
2.3 Payment and Taxes. Client will pay for the Offerings to Simulint as set forth in the applicable Order. Unless otherwise expressly set forth on the Order, Client will pay the fees and amounts stated on each Order within 30 days after receipt of the applicable invoice. Except as otherwise expressly provided in this Agreement, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Client must pay all such taxes levied or imposed by reason of Client’s purchase of the Offerings, except for taxes based on Simulint’s income or with respect to Simulint’s employment of its employees.
2.3.1 Subscription Renewal and Renewal Pricing. Unless otherwise expressly stated in the applicable Order, each Subscription/Order Term for subscription-based Offerings will automatically renew for successive renewal terms of the same duration as the expiring Subscription/Order Term unless Client provides written notice of non-renewal at least sixty (60) business days prior to the end of the then-current Subscription/Order Term. Simulint may adjust pricing upon renewal no more than once annually to reflect inflation, increased costs, changes in service requirements, changes in Client environment, or changes in the scope of the Offerings. Simulint will provide Client with at least ninety (90) days’ prior written notice of any such price adjustment before the applicable renewal date.
2.4 Usage Measurement and Billing Reconciliation
2.4.1 Usage Based Pricing. Simulint’s pricing for certain Offerings is usage based and is designed to scale with Client’s environment. As Client’s environment grows, fees may increase based on actual measured Usage Units. If usage declines, fees may adjust downward subject to the stability threshold in Section 2.4.4.
2.4.2 Measurement Authority. Client acknowledges that any quantities of Usage Units provided prior to onboarding are estimates only. Following onboarding and upon obtaining appropriate access to Client’s environment, Simulint will determine the actual number of applicable Usage Units using data collected from its platform administrative, monitoring, and reporting systems. System generated usage data constitutes the authoritative record for purposes of determining usage and billing.
2.4.3 Onboarding True Up. The first invoice may be based on the estimated Usage Units provided by Client or reflected in the applicable Order. Upon completion of onboarding and verification of Client’s environment, Simulint will validate actual Usage Units and any resulting adjustment will be reflected on the next invoice.
2.4.4 Monthly Reconciliation and Baseline Floor. Within five (5) business days prior to the end of each calendar month, Simulint will reconcile the active Usage Units applicable to the Offerings. If actual Usage Units increase, Client will be invoiced for the higher actual Usage Units at the applicable per unit rate set forth in the Order. If actual Usage Units decrease, billing will adjust downward to actual measured usage; however, billable Usage Units will not fall below ninety percent (90%) of the Original Baseline during the applicable Subscription/Order Term unless otherwise stated in the Order.
2.4.5 Invoice Review. Client will have ten (10) business days from receipt of an invoice to provide written notice of any good faith dispute, including reasonable supporting detail. Absent such notice, the invoice and reconciliation will be deemed accepted. Any mutually confirmed billing discrepancy will be reflected as a credit or charge on the next invoice.
3. Access & Use Rights.
3.1 Evaluation. If Simulint approves Client’s evaluation use of a Product (an “Evaluation Product”), the terms herein applicable to Products also apply, except for the following different or additional terms: (i) the duration of the evaluation is as mutually agreed upon by Client and Simulint, provided that either Simulint or Client can terminate the evaluation at any time upon written (including email) notice to the other party; (ii) the Evaluation Product is provided “AS-IS” without warranty of any kind, and Simulint disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (iii) Client’s access and use is limited to Internal Use only.
3.2 Access & Use Rights. Subject to this Agreement (including Simulint’s receipt of applicable fees), Simulint grants Client, under Simulint’s intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable (except as expressly provided in the Section entitled Assignment), non-sublicensable license to access and use the Products in accordance with any applicable Documentation solely for Client’s Internal Use during the applicable Subscription/Order Term. Client’s access and use is limited to the quantity in the applicable Order. Furthermore, the following additional terms and conditions apply to specific Products (or components thereof):
(a) Products with Software Components. If Client purchases a subscription to a Product with a downloadable object-code component (“Software Component”), Client may, during the Subscription/Order Term install and run multiple copies of the Software Components solely for Client’s and its Affiliates’ Internal Use up to the maximum quantity in the applicable Order.
(b) Simulint Tools. If Simulint provides Simulint Tools, the license set forth in the Section entitled Access & Use Rights applies to such Simulint Tools as used solely for Client's Internal Use during the period of time set forth in the applicable Order, or if none is specified, for the period authorized by Simulint. Not all Professional Services engagements will involve the use of Simulint Tools.
3.3 Restrictions. The access and use rights set forth in the Section entitled Access & Use Rights do not include any rights to, and Client will not, with respect to any Offering (or any portion thereof): (i) employ or authorize a Simulint Competitor to use or view the Offering or Documentation, or to provide management, hosting, or support for an Offering; (ii) alter, publicly display, translate, create derivative works of or otherwise modify an Offering; (iii) sublicense, distribute or otherwise transfer an Offering to any third party (except as expressly provided in the Section entitled Assignment); (iv) allow third parties to access or use an Offering (except for Client Contractors as expressly permitted herein); (v) create public Internet “links” to an Offering or “frame” or “mirror” any Offering content on any other server or wireless or Internet-based device; (vi) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for an Offering (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to an Offering or its related systems or networks; (vii) use an Offering to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (viii) remove or alter any notice of proprietary right appearing on an Offering; (ix) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, an Offering (provided, that this does not prevent Client from comparing the Products to other products for Client’s Internal Use); (x) use any feature of Simulint APIs for any purpose other than in the performance of, and in accordance with, this Agreement; or (xi) cause, encourage or assist any third party to do any of the foregoing. Client agrees to use an Offering in accordance with laws, rules and regulations applicable to Client and acknowledges that Client is solely responsible for determining whether a particular use of an Offering is compliant with such laws.
3.4 Installation and User Accounts. Simulint is not responsible for installation unless Client purchases installation services from Simulint. For those Products requiring user accounts, only the single individual user assigned to a user account may access or use the Product. Client is liable and responsible for all actions and omissions occurring under Client's and Client Contractor’s user accounts for Offerings. Client must notify Simulint if Client learns of any unauthorized access or use of Client's user accounts or passwords for an Offering. Client shall reasonably cooperate with Simulint in investigating suspected misuse of the Offerings or security incidents involving the Offerings, including by providing relevant information and access reasonably necessary for such investigation.
3.5 Malware Samples. If Simulint makes malware samples available to Client in connection with an evaluation or use of the Product (“Malware Samples”), Client acknowledges and agrees that: (i) Client’s access to and use of Malware Samples is at Client’s own risk, and (ii) Client should not download or access any Malware Samples on or through its own production systems and networks and that doing so can infect and damage Client’s systems, networks, and data. Client shall use the Malware Samples solely for Internal Use and not for any malicious or unlawful purpose. Simulint will not be liable for any loss or damage caused by any Malware Sample that may infect Client’s computer equipment, computer programs, data, or other proprietary material due to Client’s access to or use of the Malware Samples.
3.6 Third Party Software. Simulint may use certain third party software in its Products, which can include open source software. Under some of these third party licenses, Simulint is required to provide Client with notice of the license terms and attribution to the third party. To the extent open source software is being used, see the licensing terms and attributions for such third party software that Simulint uses at: https://Simulint.com/opensource.
3.7 Ownership & Feedback. Products, Product-Related Services and the Simulint Tools are made available for use or licensed, not sold. Simulint owns and retains all right, title and interest (including all intellectual property rights) in and to the Products, Product-Related Services and the Simulint Tools. Any feedback or suggestions that Client provides to Simulint regarding its Offerings and Simulint Tools is non-confidential and may be used by Simulint for any purpose without acknowledgement or compensation; provided, Client will not be identified publicly as the source of the feedback or suggestion.
3.8 Service Modifications. Simulint may modify, enhance, or improve the Offerings from time to time, provided that such changes do not materially reduce the core functionality of the applicable Offering purchased by Client.
4. Client Contractors.
4.1 Authorization. Client authorizes Simulint to give Client Contractors access to the Offerings necessary to enable and provide for Client’s use and receipt of the Client Contractor Services. If at any time Client revokes this authorization, to the extent the Offerings provide for Client to limit the Client Contractor’s access and use of the Offerings, then Client is responsible for taking the actions necessary to revoke such access and use. In the event Client requires Simulint assistance with such revocation or limitation, Client must contact Simulint Support with written notice of such revocation or limitation at support@Simulint.com and Simulint will disable the Client Contractor’s access to Client’s Offerings within a reasonable period of time following receipt of such notice but in any event within 72 hours of receipt of such notice.
4.2 Disclaimer. Client Contractors are subject to the terms and conditions in the Agreement while they are using the Offerings on behalf of Client and Client remains responsible for their acts and omissions during such time. Any breach by a Client Contractor of this Agreement is a breach by Client. Simulint may make available Client Contractor Services to Client, for example, through an online directory, catalog, store, or marketplace. Client Contractor Services are not required for use of the Offerings. Offerings may contain features, including APIs, designed to interface with or provide data to Client Contractor Services. Simulint is not responsible or liable for any loss, costs or damages arising out of Client Contractor’s actions or inactions in any manner, including but not limited to, for any disclosure, transfer, modification or deletion of Client Data (defined in Exhibit A). Whether or not a Client Contractor is designated by Simulint as, or otherwise claims to be “certified,” “authorized,” or similarly labeled, Simulint does not: (i) control, monitor, maintain or provide support for, Client Contractor Services, (ii) disclaims all warranties of any kind, indemnities, obligations, and other liabilities in connection with the Client Contractor Services, and any Client Contractor interface or integration with the Offerings, and (iii) cannot guarantee the continued availability of Client Contractor Services and related features. If Client Contractor Services and related features are no longer available for any reason, Simulint is not obligated to provide any refund, credit, or other compensation for, or related to, the Offerings.
4.3 Restrictions on Client Contractors. Client shall not give or allow Client Contractors access to, or use of, intelligence reports provided by, or made accessible in, the Products. For the avoidance of doubt, nothing herein prevents Client from using intelligence APIs in Client Contractor Services for Client’s Internal Use.
5. Professional Services.
5.1 Fees. Professional Services will commence on a mutually agreed upon date. Simulint shall not be responsible for delays in the performance of Professional Services caused by Client’s failure to provide timely access, information, approvals, personnel, or other resources reasonably required for performance. Any resulting delays may require adjustment of applicable schedules or timelines. Estimates provided for Professional Services performed on a time-and-material basis are estimates only and not a guarantee. Professional Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.
5.1.1 Travel and Expense Reimbursement. Client agrees to reimburse Simulint for reasonable and necessary travel-related expenses incurred in connection with the performance of the Professional Services, provided that such travel is approved by Client in advance. Reimbursable expenses may include mileage at the then-current IRS standard mileage rate, airfare, lodging, ground transportation, parking, tolls, meals, and other reasonable incidental expenses. Such travel may include both same-day travel and travel requiring overnight stays where reasonably necessary for the performance of the Professional Services. All reimbursable expenses will be supported by reasonable documentation and made available for Client review upon request.
5.2 Ownership of Deliverables. Professional Services do not constitute “works for hire,” “works made in the course of duty,” or similar terms under laws where the transfer of intellectual property occurs on the performance of services to a payor. The only deliverable arising from the Professional Services is a report consisting primarily of Simulint’s findings, recommendations, and adversary information. You own the copy of the report delivered to you (“Deliverable”), subject to Simulint’s ownership of the Simulint Materials. You agree that relative to you, Simulint exclusively owns any and all software (including object and source code), flow charts, algorithms, documentation, adversary information, report templates, know-how, inventions, techniques, models, Simulint trademarks, ideas and any and all other works and materials developed by Simulint in connection with performing the Professional Services (including without limitation all intellectual property rights therein and thereto) (collectively, the “Simulint Materials”) and that title shall remain with Simulint. For the avoidance of doubt, the Simulint Materials do not include any Client Confidential Information or other Client provided materials or data. Upon payment in full of the amounts due hereunder for the applicable Professional Services and to the extent the Simulint Materials are incorporated into the Deliverable(s), you shall have a perpetual, non-transferable (except as expressly provided in the Section entitled Assignment), non-exclusive license to use the Simulint Materials solely as a part of the Deliverable(s) for your Internal Use.
6. Data Security and Privacy.
See Exhibit A.
6.1 Security Incident Notification. Simulint will notify Client without undue delay after becoming aware of a confirmed Security Breach affecting Client Data stored on Simulint Systems. Simulint will provide information reasonably available to it regarding the nature of the Security Breach and steps taken to mitigate its effects, consistent with applicable law and Simulint’s security policies.
7. Confidentiality.
7.1 Definitions. In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form that is in the Recipient’s possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
7.2 Restrictions on Use. Except as allowed in Section 7.3 (Exceptions), Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information. Within 72 hours of Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall provide Discloser with notice thereof.
7.3 Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Discloser’s Confidential Information as part of: (x) a legal proceeding to which the Discloser is a party but the Recipient is not; or (y) a government or regulatory investigation of the Discloser, the Discloser shall pay all of the Recipient’s reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for its reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony.
7.4 Destruction. Upon Discloser’s written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.
7.5 Equitable Relief. Each party acknowledges that a breach of this Section 7 (Confidentiality) shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.
8. Warranties & Disclaimer.
8.1 No Warranty for Pre-Production Versions. Any pre-production feature or version of an Offering provided to Client is experimental and provided “AS IS” without warranty of any kind and will not create any obligation for Simulint to continue to, in any way, continue to provide or develop any such feature or Offering. Client agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Simulint regarding future functionality or features.
8.2 Product Warranty. If Client has purchased a Product, Simulint warrants to Client during the applicable Subscription/Order Term that: (i) the Product will operate without Error; and (ii) Simulint has used industry standard techniques to prevent the Products at the time of delivery from injecting malicious software viruses into Client's Endpoints where the Products are installed. Client must notify Simulint of any warranty claim during the Subscription/Order Term. Client's sole and exclusive remedy and the entire liability of Simulint for its breach of this warranty will be for Simulint, at its own expense to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct such Error; or (b) terminate Client's license to access and use the applicable non-conforming Product and refund the prepaid fee prorated for the unused period of the Subscription/Order Term. Simulint shall have no obligation regarding Errors reported after the applicable Subscription/Order Term.
8.3 Services Warranty. Simulint warrants to Client that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards. Client must notify Simulint of any warranty claim for Services during the period the Services are being performed or within 30 days after the conclusion of the Services. Client's sole and exclusive remedy and the entire liability of Simulint for its breach of this warranty will be for Simulint, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid attributable to the non-conforming Services.
8.4 Exclusions. The express warranties do not apply if the applicable Product or Service: (i) has been modified, except by Simulint, (ii) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (iii) is non-conforming due to a failure to use an applicable Update. If any part of a Product or Service references websites, hypertext links, network addresses, or other third party locations, information, or activities, it is provided as a convenience only.
8.5 No Guarantee. CLIENT ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT SIMULINT DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CLIENT’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND CLIENT AND ITS AFFILIATES WILL NOT HOLD SIMULINT RESPONSIBLE.
8.6 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, SIMULINT AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SIMULINT AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE OFFERINGS AND SIMULINT TOOLS. THERE IS NO WARRANTY THAT THE OFFERINGS OR SIMULINT TOOLS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CLIENT’S PARTICULAR PURPOSES OR NEEDS. THE OFFERINGS AND SIMULINT TOOLS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE OFFERINGS NOR SIMULINT TOOLS ARE FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. Client agrees that it is Client’s responsibility to ensure safe use of an Offering and the Simulint Tools in such applications and installations. SIMULINT DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.
9. Indemnification.
9.1 Simulint’s Obligation. Simulint shall: (i) defend and/or settle any claim brought against Client by an unaffiliated third party alleging that an Offering infringes or violates that third party’s intellectual property rights, and (ii) pay and indemnify any settlement of such claim or any damages awarded to such third party by a court of competent jurisdiction as a result of such claim; provided, that Client: (a) gives Simulint prompt written notice of such claim; (b) permits Simulint to solely control and direct the defense or settlement of such claim (however, Simulint will not settle any claim in a manner that requires Client to admit liability without Client’s prior written consent); and (c) provides Simulint all reasonable assistance in connection with the defense or settlement of such claim, at Simulint’s cost and expense. In addition, Client may, at Client’s own expense, participate in defense of any claim.
9.2 Remedies. If a claim covered under this Section occurs or in Simulint’s opinion is reasonably likely to occur, Simulint may at its expense and sole discretion (and if Client’s access and use of an Offering is enjoined, Simulint will, at its expense): (i) procure the right to allow Client to continue using the applicable Offering; (ii) modify or replace the applicable Offering to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Client’s license or access to the affected portion of applicable Offering and refund a portion of the pre-paid, unused fees paid by Client corresponding to the unused period of the Subscription/Order Term.
9.3 Exclusions. Simulint shall have no obligations under this Section if the claim is based upon or arises out of: (i) any modification to the applicable Offering not made by Simulint; (ii) any combination or use of the applicable Offering with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use; (iii) Client’s continued use of the allegedly infringing Offering after being notified of the infringement claim or after being provided a modified version of the Offering by Simulint at no additional cost that is intended to address such alleged infringement; (iv) Client’s failure to use the Offering in accordance with the applicable Documentation; and/or (v) Client’s use of the Offering outside the scope of the rights granted under this Agreement.
9.4 Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDIES, AND SIMULINT’S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9.5 Client Indemnification. Client shall defend, indemnify, and hold harmless Simulint and its Affiliates from and against any claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to: (i) Client’s misuse of the Offerings; (ii) Client’s violation of applicable law in connection with its use of the Offerings; or (iii) Client Data or materials provided by Client that infringe or violate the rights of a third party. Simulint shall provide Client with prompt written notice of any such claim, permit Client to control the defense and settlement of such claim, and provide reasonable assistance at Client’s expense; provided that Client shall not settle any claim in a manner that imposes liability or obligations on Simulint without Simulint’s prior written consent.
10. Limitation of Liability.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE TO THIRD PARTIES UNDER SECTION 9 (INDEMNIFICATION), CLIENT’S PAYMENT OBLIGATIONS, AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE; OR (B) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE TO SIMULINT UNDER THE APPLICABLE ORDER FOR THE RELEVANT OFFERING. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 10.
10.2 Additional Liability Terms. Additional or different liability terms may apply to certain Clients where expressly set forth in an applicable Order or written agreement executed by Simulint and Client.
11. Compliance with Laws.
Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption and employment laws. Client acknowledges and agrees the Offerings shall not be used, transferred, or otherwise exported or re-exported to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government, where necessary. Client represents and warrants that, to the extent required by applicable law, Client is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. Simulint represents and warrants that Simulint is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.
12. U.S. Government End Users.
12.1 Commercial Items. The following applies to all acquisitions by or for the U.S. government or by any U.S. Government prime contractor or subcontractor at any tier (“Government Users”) under any U.S. Government contract, grant, other transaction, or other funding agreement. The Products, Simulint Tools, and Documentation are “commercial items,” as that term is defined in Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in FAR 12.211 and 12.212. In addition, Department of Defense FAR Supplement (“DFARS”) 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by Department of Defense agencies. Consistent with FAR 12.211 and 12.212 and DFARS (48 C.F.R.) 227.7202-1 through 227.7202-4, the Products, Simulint Tools, and Documentation are being licensed to Government Users pursuant to the terms of this license(s) customarily provided to the public as set forth in this Agreement, unless such terms are inconsistent with United States federal law (“Federal Law”).
12.2 Disputes with the U.S. Government. If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal Law and the parties cannot reach a mutual agreement on terms for this Agreement, the Government agrees to terminate its use of the Offerings. In the event of any disputes with the U.S. Government in connection with this Agreement, Section 14.3 of this Agreement shall not apply. Instead the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with Federal Procurement Law and any such disputes shall be resolved pursuant to the Contract Disputes Act of 1978, as amended (41 U.S.C. 7101-7109), as implemented by the Disputes Clause, FAR 52.233-1.
12.3 Precedence. The U.S. Government rights in this Section are in lieu of, and supersede, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in the Offerings, computer software or technical data under this Agreement.
13. Suspension and Termination.
This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein. Simulint may immediately suspend Client’s access to, or use of, the Offerings if: (i) Simulint believes that there is a significant threat to the security, integrity, functionality, or availability of the Offerings or any content, data, or applications in the Offerings; (ii) Client or Client users are in breach of Section 3.3 (Restrictions); or (iii) Client fails to pay Simulint when undisputed fees are due; provided, however, Simulint will use commercially reasonable efforts under the circumstances to provide Client with notice and, if applicable, an opportunity to remedy such violation prior to any such suspension. Either party may terminate this Agreement upon 30 days’ written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period. Prior to termination and subject to the terms of this Agreement, Client shall have the right to access and download Client Data available per the Client’s purchased Products and data retention period in a manner and in a format supported by the Products. Upon termination of this Agreement for any reason: (a) all Client’s access and use rights granted in this Agreement will terminate; (b) Client must promptly cease all use of Offerings and de-install all Software Components installed on Client’s Endpoints; and (c) Client Data will be deleted in accordance with the data retention period purchased by Client and Section 7.4 (Destruction). Sections 1, 3.3, 7, 10, 12, 13, and 14 and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
14. General.
14.1 Entire Agreement. This Agreement constitutes the entire agreement between Client and Simulint concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-Simulint document and no such terms included in any such portal or other non-Simulint document shall apply to the Offerings ordered. Any Order through a reseller is subject to, and Simulint’s obligations and liabilities to Client are governed by, this Agreement. Simulint is not obligated under any reseller's agreement with Client unless an officer of Simulint executes the agreement. This Agreement shall not be construed for or against any party to this Agreement because that party or that party’s legal representative drafted any of its provisions.
14.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
14.3 Governing Law; Venue. Except as otherwise expressly provided in an applicable Order or written agreement executed by the parties, this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in New Castle County, Delaware, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in Simulint’s case, to recoup any payments due.
14.4 Permission to List Client as a Simulint Client. Unless Client directs otherwise by sending an email to us at legal@simulint.com, which direction may be given at any time, you agree that Simulint may display Client's company name and logo (in accordance with any trademark guidelines Client provides) as a Simulint client in a manner that does not suggest Client's endorsement of any specific Simulint product or service.
14.5 Independent Contractors; No Third Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
14.6 Waiver, Severability & Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
14.7 Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.
14.8 Notices. All legal notices will be given in writing to the addresses in the Order and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, Orders, POs, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures.
Exhibit A - Data Security and Privacy Schedule
1. Definitions
a. “Simulint Systems” means those computer systems hosting the Simulint Platform.
b. “Client Data” means the data generated by the Client’s Endpoint and collected by: (i) the Products, and/or (ii) the Simulint Tools, and in either case, sent to the Simulint Systems. Client Data is considered Client’s Confidential Information (defined in Section 7 Confidentiality) and subject to the exclusions, exceptions and obligations set forth therein and this Exhibit A Data Security and Privacy Schedule.
c. “Execution Profile/Metric Data” means any machine-generated data, such as metadata derived from tasks, file execution, commands, resources, network telemetry, executable binary files, macros, scripts, and processes, that: (i) Client provides to Simulint in connection with this Agreement or (ii) is collected or discovered during the course of Simulint providing Offerings, excluding any such information or data that identifies Client or to the extent it includes Personal Data.
d. “Personal Data” means information provided by Client to Simulint or collected by Simulint from Client used to distinguish or trace a natural person’s identity, either alone or when combined with other personal or identifying information that is linked or linkable by Simulint to a specific natural person. Personal Data also includes such other information about a specific natural person to the extent that the data protection laws applicable in the jurisdictions in which such person resides define such information as Personal Data.
e. “Privacy and Security Laws” means U.S. federal, state and local and non-U.S. laws, including those of the European Union, that regulate the privacy or security of Personal Data and that are directly applicable to Simulint.
f. “Security Breach” means unauthorized access to, or unauthorized acquisition of: (i) Client Data, or (ii) Personal Data, stored on Simulint Systems that results in the compromise of such Client Data and/or Personal Data.
g. “Threat Actor Data” means any malware, spyware, virus, worm, Trojan horse, or other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data, in each case that is potentially related to unauthorized third parties associated therewith and that: (i) Client provides to Simulint in connection with this Agreement, or (ii) is collected or discovered during the course of Simulint providing Offerings, excluding any such information or data that identifies Client or to the extent that it includes Personal Data.
2. Blue Sphere Platform
The “Blue Sphere Platform” uses a crowd-sourced environment, for the benefit of all clients, to help clients protect themselves against suspicious and potentially destructive activities. Simulint’s Products are designed to detect, prevent, respond to, and identify intrusions by collecting and analyzing data, including machine event data, executed scripts, code, system files, log files, dll files, login data, binary files, tasks, resource information, commands, protocol identifiers, URLs, network data, and/or other executable code and metadata. Client, rather than Simulint, determines which types of data, whether Personal Data or not, exist on its systems. Accordingly, Client’s endpoint environment is unique in configurations and naming conventions and the machine event data could potentially include Personal Data. Simulint uses the data to: (i) analyze, characterize, attribute, warn of, and/or respond to threats against Client and other clients, (ii) analyze trends and performance, (iii) improve the functionality of, and develop, Simulint’s products and services, and enhance cybersecurity; and (iv) permit Clients to leverage other applications that use the data, but for all of the foregoing, in a way that does not identify Client or Client’s Personal Data to other clients. Neither Execution Profile/Metric Data nor Threat Actor Data are Client’s Confidential Information or Client Data.
3. Processing Personal Data
a. Provisioning/Use of Offerings. Personal Data may be collected and used during the provisioning and use of the Offerings to deliver, support and improve the Offerings, administer the Agreement and further the business relationship between Client and Simulint, comply with law, act in accordance with Client's written instructions, or otherwise in accordance with this Agreement. Client authorizes Simulint to collect, use, store and transfer the Personal Data that Client provides to Simulint as contemplated in this Agreement.
b. Suspicious/Unknown File Analysis. While using certain Simulint Offerings Client may have the option to upload (by submission, configuration, and/or, in the case of Services, by Simulint personnel retrieval) files and other information related to the files for security analysis and response or, when submitting crash reports, to make the product more reliable and/or improve Simulint’s products and services or enhance cyber-security. These potentially suspicious or unknown files may be transmitted and analyzed to determine functionality and their potential to cause instability or damage Client's systems or Endpoints. In some instances, these files could contain Personal Data for which Client is responsible.
4. Compliance with Privacy and Information Security Requirements
a. Compliance with Laws. Simulint shall comply with all Privacy and Security Laws, as applicable. Simulint’s privacy notice may be found at https://www.Simulint.com/privacy-notice/. To the extent necessary to comply with Privacy and Security Laws, including but not limited to when Client is a controller of Personal Data processed by Simulint originating in the European Union, Switzerland, or the United Kingdom, the Data Privacy Policy set forth here shall apply to Simulint’s processing of such Client Personal Data.
b. Safeguards. Simulint shall maintain appropriate technical and organizational safeguards commensurate with the sensitivity of the Client Data and Personal Data processed by it on Client’s behalf (“Information Security Controls for Simulint Systems”).
c. Subprocessors. Simulint may use subcontractors, subprocessors, or service providers to assist in providing the Offerings, including hosting, infrastructure, analytics, security, and support services. Simulint will remain responsible for the compliance of such subcontractors, subprocessors, and service providers with the applicable obligations of this Agreement to the extent such obligations relate to the services performed on Simulint’s behalf.
5. Client Obligations.
Client, along with its Affiliates, represents and warrants that: (i) it owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Products and/or Simulint Tools will be installed or that will be the subject of, or investigated during, the Offerings, (ii) to the extent required under any federal, state, or local U.S. or non-US laws (e.g., Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., Title III, 18 U.S.C. 2510 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq.) it has authorized Simulint to access the Systems and process and transmit data through the Offerings and Simulint Tools in accordance with this Agreement and as necessary to provide and perform the Offerings, (iii) it has a lawful basis in having Simulint investigate the Systems, process the Client Data and the Personal Data; (iv) that it is and will at all relevant times remain duly and effectively authorized to instruct Simulint to carry out the Offerings, and (v) it has made all necessary disclosures, obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of Client Data and Client Personal Data from each Client and Client Affiliate, to Simulint.
