End User License Agreement

This End User License Agreement you are reading is a legally binding agreement (“Agreement”) between yourself (“Customer”) and the applicable Cymulate entity: (i) Cymulate Inc., if Customer has its primary office or residence in the United States or Canada; or (ii) Cymulate UK Ltd., if Customer has its primary office or residence in the United Kingdom; or (iii) Cymulate Ltd., if Customer has its primary office or residence in any other location (“Cymulate”).

Customer accepts this Agreement by clicking an “agree” or similar button, where this option is provided by Cymulate, or if Customer installs, uses or access the Platform or any part of the Platform. Customer’s agreement to this Agreement also binds its authorized users, company or organization. If you do not agree to the terms of this Agreement, do not accept it. Before accepting this Agreement, please carefully read it.

Any terms and conditions included in any ordering document from the Customer (including any purchase order) that are inconsistent, conflicting, or additional to the terms in this Agreement will be void. If the quote provided by Cymulate (the “Quote”) deviates from the terms of this Agreement, the terms of such Quote and any Exhibit(s) attached thereto shall prevail.

1. Introduction
   Access to Cymulate’s products detailed in the Quote, and any other material (whether written or oral), products, deliverables, reports, and/or services provided by Cymulate under this Agreement (collectively, the “Platform”) is provided to the Customer subject to the terms of this Agreement. This Agreement forms a legally binding contract between Customer and Cymulate in relation to Customer’s use of the Platform. The Platform also includes all enhancements, modifications, additions, translations, compilations, or other software delivered to Customer by Cymulate hereunder and any and all printed and electronic documentation provided with the Platform.
2. The Services
   1. Cymulate hereby grants the Customer the right, during the term of this Agreement, to install the Platform on its organization’s systems and to access and use the Platform for the sole purpose of assessing Customer’s exposure, validate the exploitability of any threat or attack path and optimize the Customer’s security defense, all as detailed in the Quote or, in the event of a Free Trial (as defined below), the description of the Free Trial , all subject to Customer’s compliance with the terms and conditions of this Agreement and any technical guidelines as will be provided by Cymulate from time to time. Use of the Platform for any other purpose shall require Cymulate’s prior written consent and shall be subject to such terms (including pricing) to be separately agreed.
   2. The Customer shall not make any copies of the Platform and is expressly prohibited from providing the Platform or any portion thereof, or access thereto, to any third party, except as otherwise agreed to by Cymulate in writing.
   3. As part of the Platform and during the term of this Agreement, Cymulate hereby grants the Customer a limited, revocable, non-exclusive, and non-transferable license to install software that runs locally on a dedicated test point within the Customer’s environment, which is provided as part of the Platform and facilitates seamless communication between Customer’s devices and the Platform, ensuring timely updates and efficient transfer of operational data.
   4. The Customer is solely responsible for providing equipment, infrastructure, servers, and all third-party software and licenses required for running the Platform as per Cymulate’s pre-requisites.  
   5. Cymulate may make modifications, additions, and upgrades to the Platform, as it deems necessary. The terms of this Agreement will apply to any updates that Cymulate may make available to the Customer unless the update is accompanied by a separate license, in which case that license terms will govern.
   6. Cymulate shall make commercially reasonable efforts to ensure that the Platform will be accessible and functional continuously, except for scheduled maintenance periods per its Service Level Agreement available at https://cymulate.com/sla/. The foregoing notwithstanding, Customer acknowledges and agrees that the Platform may be inaccessible or inoperable at any time and for any reason, including without limitation due to equipment malfunctions, unscheduled maintenance or repairs, or causes beyond Cymulate’s reasonable control or not reasonably foreseeable by Cymulate. If the Platform becomes inaccessible or is not fully functional, other than due to scheduled maintenance, Cymulate shall have qualified personnel respond and endeavor to remedy such unavailability or failure of functionality as soon as reasonably possible.
   7. In using the Platform, the Customer will adhere to all applicable laws.
3. Account Information
   1. Any personal information the Customer provides to Cymulate will be held and used in accordance with Cymulate’s Privacy Policy available at https://www.cymulate.com/privacy-policy (“Privacy Policy”), which constitutes an integral part of this Agreement. The Customer agrees that it will supply accurate and complete information to Cymulate and update that information promptly after it changes. The Customer represents and warrants that it has full right and authority to provide Cymulate with the foregoing information, including, without limitation, any third party’s consent (to the extent required under any applicable law).
4. Access to Platform
   1. Cymulate may refuse access to the Platform or any part thereof upon a suspected violation of this Agreement, illegal or improper use of the Customer’s account, or illegal or improper use of the Platform or Cymulate’s intellectual property as determined by Cymulate in its sole discretion, by providing the Customer prior written notice. If the Customer believes any action has been taken against its Account in error, please contact Cymulate at: [email protected].
   2. The Customer is solely responsible for preserving the originals of any content it provides and/or uploads to the Platform. Cymulate does not guarantee that any content will always be available through the Platform. Customers cannot rely upon the Platform as a storage space for such content.
5. Free Trial
   1. The Customer may sign up for a free trial by registering for the Free Trial on Cymulate’s website at: https://cymulate.com/free-trial/ or as detailed in the Quote (the “Free Trial”). The Free Trial will allow the Customer to launch a partial simulation of the Platform for a period of 14 days, or any other period as detailed in the Quote (the “Free Trial Period”).
   2. During the Free Trial Period, either party may terminate this Agreement and the use of the Platform by providing notice to the other party.
   3. Immediately following the Free Trial Period, in the event that the Customer does not purchase a subscription to continue using the Platform, the Customer’s account shall automatically terminate.
6. Consideration
   In the event that the Customer purchased the subscription to the Platform through a third-party partner authorized by Cymulate, the Customer’s payment obligations shall be owed to such partner in accordance with the terms agreed between the Customer and the partner.
   1. The Customer will pay Cymulate a subscription fee for the Platform in accordance with the commercial terms set forth in the Quote, or such other order form executed between Cymulate and the Customer (the “Fee”). The Fee shall be paid regardless of actual use of the Platform or any specific part thereof and shall be non-refundable. Without derogating from the aforesaid, it is hereby clarified that, if a package was purchased, the Customer shall pay the Fee for the entire package and, to the extent purchased, any add-ons detailed in the Quote, even if the Customer chooses not to use any part of such package, and that Customer shall not be entitled to any refund to the extent not all capabilities or scenarios were used.
   2. All Fees are net and exclusive of any taxes (including without limitation any Value Added Tax or other sales tax), customs, tariffs, or other charges or fees, except taxes arising from Cymulate’s income, all of which will be added to such prices and fees and borne exclusively by Customer.
   3. Any payments by Customer that are not paid on or before the date such payments are due under this Agreement shall bear interest of one percent (1%) per month. Interest shall accrue beginning on the first day following the due date for payment and shall be compounded quarterly. In addition, and without derogating from any other remedies available to Cymulate, if the non-payment of an invoice continues for sixty (60) days from the invoice date, Cymulate may disconnect the Platform and terminate the Agreement. All account data and history shall be permanently deleted.
7. Term and Termination
   1. Except in the event of a Free Trial, the term of this Agreement shall be set in the Quote (the “Initial Term”). The Initial Term will be automatically renewed for successive twelve (12) months terms unless either party notifies the other in writing not less than thirty (30) days prior to the expiration of the then-current term of its intention to terminate, notices of non-renewal to Cymulate must be sent to the following email address: [email protected]. The Initial Term and any renewal terms are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement for any reason. Except as otherwise agreed to by the Parties in writing, the subscription fee shall increase on an annual basis such that upon renewal of the Initial Term and any renewal term thereafter, the subscription fee shall be increased by 7% compared to the subscription fee paid for the prior subscription term. Notwithstanding anything to the contrary, any renewal in which the packages, number of assets, number of scenarios or subscription term, as applicable, had changed from the prior subscription term will result in re-pricing at renewal without regard to the subscription fee paid for the prior subscription term.
   2. Cymulate may terminate this Agreement immediately upon written notice to the Customer if the Customer has materially breached this Agreement or if the Customer fails to make any timely payment of the Fees in accordance with Section 6.
   3. Upon termination, all rights and obligations pursuant to this Agreement, including any licenses, shall immediately terminate, except for any provisions of this Agreement that are intended by their nature to survive termination, including Sections 7 (“Term and Termination”), 11 (“Title”), 12 (“Confidential Information”), 13 (“Disclaimer of Warranties”), 14 (“Limitations on Liability”) and 15 (“General”) hereunder, which shall survive the expiration or termination of this Agreement.
8. Information Collected
   1. During the Customer’s use of the Platform, Cymulate may collect information regarding the Customer’s use of the Platform, such as information on which scenarios, tools, services, features and/or capabilities in the Platform are being used and how they are being used, connection time to Cymulate’s server, etc. Any such information gathered by Cymulate will be used in general, aggregated, non‑personally identifiable form to evaluate and improve Cymulate’s products and technology and for statistical purposes. Notwithstanding, the use of any of our services shall be subject to Cymulate’s Privacy Policy, as updated from time to time.
   2. Following termination of this Agreement, the Customer may, for a period of 90 days, request Cymulate to receive all information regarding the Customer’s use of the Platform. Following the lapse of the aforesaid 90 days period, and provided that the Customer did not renew its subscription to the Platform, Cymulate will destroy and/or delete all such information regarding the Customer’s use of the Platform.
   3. While Cymulate will not initiate the collection of personal information, as defined under the EU General Data Protection Regulation 2016/679 (“GDPR”), such information may be collected upon the Customer’s registration to create an account and/or use the Platform.
      
      If this Agreement is with Cymulate Ltd. or Cymulate UK Ltd., notwithstanding Section 3.1 to this Agreement and to the extent that the GDPR will apply on Cymulate’s processing of the Customer’s personal information, such information shall be processed pursuant to the provisions set forth under the Data Processing Addendum available at https://cymulate.com/dpa_eu/.
      
      If this Agreement is with Cymulate Inc., notwithstanding Section 3.1 to this Agreement, such information shall be processed pursuant to the provisions set forth under the Data Processing Addendum available at https://cymulate.com/dpa_us/.
   4. Cymulate may elect to notify relevant third-party software and systems vendors of critical vulnerabilities discovered during performance and use of the Platform. Cymulate will only make such a notification where it reasonably considers that the existence of the vulnerability should be brought to the relevant vendor’s attention to prevent harm to other users of the software or systems and that Cymulate making the notification is generally in the public interest. Cymulate will limit the content of any notification to the existence of the vulnerability in question and will not provide any data or information specific to the Customer or that might reasonably be expected to identify the Customer.
9. Creation of Custom Attacks
   1. During the Customer’s use of the Platform, the Customer may create custom scenarios, payloads and/or commands (“Custom Attacks”). In the event that the Customer chooses to create Custom Attacks, it shall have full and sole responsibility over the Custom Attacks and their outcomes.
   2. The Customer shall obtain all consent and permissions required under all applicable laws regarding the creation, editing or use of any Custom Attacks and shall adhere to all laws applicable thereto.
   3. The Customer shall confirm that Custom Attacks shall not contain any unapproved third-party information nor infringe any third-party rights.
   4. All rights in the Custom Attacks shall remain with the Customer. Custom Attacks shall not be considered a Cymulate product and/or a part of the Platform.
   5. The Customer understands that Cymulate does not review nor scan any of the Custom Attacks, does not check and/or confirm whether a Custom Attack works and/or performs as intended by the Customer nor whether the use of a Custom Attack may result in any harm to the Customer’s systems, network and/or assets. The Customer shall bear all risk and liability with respect to any creation, use, and outcome of a Custom Attack, even when used through the Platform.
   6. The Customer understands and agrees that Cymulate may need to access, upload and copy the Custom Attacks to the Platform, make display adjustments, duplicate for backup, and perform any other technical actions and/or uses required to perform the services, as Cymulate deems fit. Cymulate may, at its sole discretion (however, it shall have no obligation to do so), screen, monitor, and edit any Custom Attack at any time and for any reason, with or without notice, provided that such actions shall not derogate from the Customer’s responsibility for the Custom Attacks.
10. External Data
    1. During the Customer’s use of the Platform, the Customer acknowledges that Cymulate may pull information from third-party systems installed in the Customer’s environment, which the Customer chooses to integrate with the Platform. For performing the services, Cymulate will automatically receive the applicable data of those third parties’ systems which were integrated with the Platform (the “External Data”).
    2. The Customer represents that it is authorized to share the External Data and that the External Data shall not contain any unapproved third-party information nor infringe any third-party rights.
    3. Cymulate does not check and/or confirm whether the External Data and the information therein are reliable and correct but relies on it “as is” to perform the services provided by the Platform.
    4. The Customer understands and agrees that Cymulate receives full access to the External Data and may need to access, upload and/or copy the External Data to the Platform, make display adjustments, duplicate for backup, and perform any other technical actions and/or uses required to perform the services, as Cymulate deems fit, provided, however, that such actions shall not derogate from Customer’s responsibility for the External Data.
    5. The Customer understands that the Platform may use various methods and software tools to aggregate data from multiple third-party systems and products which are owned by the Customer, and analyze such data to perform risk calculation, correlation and provide insights. The Customer represents and warrants that it has all the required approvals and authorizations to share the information required for the performance of the Platform and hereby authorizes Cymulate through the Platform to perform such services.
11. Title
    1. All rights, titles, and interests (including any intellectual property rights) in the Platform and any improvements and enhancements thereto shall at all times remain with Cymulate and/or its suppliers and no rights in the Platform or under any Cymulate intellectual property rights is granted to the Customer except as explicitly provided in Section 2 above.
    2. The Customer shall not and shall not permit any third party to (a) engage in, cause, or permit the reverse engineering, disassembly, decompilation, or any similar manipulation or attempt to discover the source code of the Platform or any part thereof; (b) bypass, alter or tamper with any security or lockout features of the Platform; (c) perform penetration testing on the Platform; (d) create any derivative work or translation of the Platform.
    3. Nothing in this Agreement gives the Customer a right to use any of Cymulate’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
    4. The Customer may provide Cymulate with feedback concerning the functionality and performance of the Platform, from time to time, as reasonably requested by Cymulate, including, without limitation identifying potential errors, enhancements, and improvements. Any feedback, suggestions, ideas, or other inputs that the Customer may provide Cymulate in connection with the Platform may be freely used by Cymulate to improve or enhance its products and, accordingly, all rights to such improvements and/or enhancements, howsoever arising, including as a result of any ideas, inputs or information provided by the Customer as aforesaid, shall vest solely with Cymulate.
12. Confidential Information
    
    The Customer acknowledges and agrees that the Platform was developed at considerable time and expense by Cymulate and contains valuable trade secrets and confidential information of Cymulate.
    
    Each party agrees to maintain the confidentiality of any proprietary information received by it from the other party during, or prior to entering into, this Agreement, including, without limitation, the Platform and any know-how disclosed by Cymulate, trade secrets, and other proprietary information, that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information and all other information obtained during the use of the Platform as permitted hereunder (“Confidential Information”). The restriction herein shall not apply (i) to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of the receiving party; (ii) rightfully received by the receiving party without any restrictions; (iii) required to be disclosed pursuant to an order of a court of competent jurisdiction or by applicable law or regulation, provided, however, that such disclosure is made only to the extent and solely to the recipient legally required and that the receiving party provides the disclosing party with adequate prior written notice of such legal requirement and with the opportunity to oppose the disclosure or obtain a protective order. Each party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party shall protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.
    
    To the extent a non-disclosure agreement was executed between the parties prior to execution of this Agreement, the terms of such non-disclosure agreement will continue to apply, and the provisions of this Section shall be in addition to it.
    
13. Disclaimer of Warranties
    1. The Customer understands that the Platform may use various methods and software tools to probe network resources for security-related information and detect actual or potential security flaws and vulnerabilities. The Customer authorizes Cymulate through the Platform to perform such security services (and all such tasks and tests reasonably contemplated by or reasonably necessary to perform the security services or otherwise approved by the Customer from time to time). Furthermore, the Customer acknowledges that using the Platform could result in service interruptions or degradation regarding its systems and accepts those risks and consequences
    2. Without derogating from the aforesaid, the Platform is provided “as is”. Cymulate disclaims any and all warranties, representations, and conditions relating to the Platform, whether express, implied, or arising by custom or trade usage, or from a course of dealing including, but not limited to, any representation, warranty, or condition of merchantability, fitness for a particular purpose, or non-infringement. No information or advice given by Cymulate or its agents, employees, or representatives, whether oral or written, shall create any representation or warranty
    3. The Customer understands that the use of the Platform does not constitute any guarantee or assurance that the security of its systems, networks, and assets cannot be breached or are not at risk. Use of the Platform is an assessment as of a particular date. Furthermore, Cymulate is not responsible for updating its Platform, including any reports and assessments provided as part of the Platform, or enquiring as to the occurrence or absence of such, in light of subsequent changes to its systems, networks, and assets after the date of use of the Platform.
       
14. Limitations on Liability
    In no event shall either party or anyone on its behalf be liable for any indirect, consequential, incidental, special, or punitive damages of any kind, including without limitation damages for loss of business or profits, business interruption, loss of business information, loss or damages or loss or damages to goodwill, in connection with this agreement regardless of the cause and whether arising in the contract (including fundamental breach), tort (including negligence) or otherwise, even if such party has been advised of the possibility of such damages or loss. Notwithstanding anything to the contrary herein, under no circumstances will either party’s total and aggregate liability to the other party from all causes of action of any kind, including without limitation contract, tort, negligence, strict liability, breach of warranty, or otherwise, arising out of or related to this Agreement, exceed the fees paid or payable by the Customer to Cymulate hereunder in the 12 months preceding such claim.
15. General
    1. No agency, partnership, joint venture, or employment relationship is or shall be created by this Agreement.
    2. The Customer shall not assign this Agreement or its rights hereunder without the prior written consent of Cymulate (which may be withheld or conditioned at Cymulate’s sole discretion), and any assignment by the Customer without such consent of the Cymulate shall be null and void and of no effect. Cymulate may perform all obligations under this Agreement directly or may have some or all obligations performed by its affiliates, contractors, or subcontractors.
    3. The Customer hereby agrees that Cymulate may identify Customer on Cymulate’s website(s) and other marketing materials as a user of the Platform.
       
       The Customer further agrees that Cymulate may send marketing materials, newsletters, updates and other promotional communications to the Customer using the contact details provided. The Customer may withdraw consent or opt out of receiving such communications at any time by providing a written notice to Cymulate.
    4. All matters arising from or relating to this Agreement, will be governed by, interpreted and enforced in accordance with the applicable governing law and venue outlined in the table below opposite the applicable Cymulate entity, without regard to that jurisdiction’s conflict of law principles, and the Parties hereby irrevocably consent to the exclusive jurisdiction and venue of such applicable courts.[View Table 1]
    5. All notices permitted or required hereunder shall be in writing and sent by email, personal delivery at the email, or address as either Party may specify. Notices sent to Cymulate shall be addressed to Cymulate Ltd, 95 Jerusalem Blvd., Holon, Israel, with a copy to [email protected], and to the Customer’s address as provided by it, or to the address otherwise designated from time to time in writing by the Parties. Any notices provided will be deemed as being received on the date of transmission of an e-mail, or personal delivery unless given outside normal business hours, in which case such notice shall be deemed as being given on the next business day, provided that if any such notice fails to reach the Customer because the information provided by it or on its behalf to Cymulate is not accurate or up to date, notice shall be deemed sufficiently delivered on the date it was sent.

Should the Customer have any questions concerning this Agreement, or if the Customer desires to contact Cymulate for any reason, please direct all correspondence to Cymulate Support ([email protected]).