Terms and Conditions
This Software-as-a-Service Agreement (“Agreement“) is between the entity identified in the commercial terms form entered by the parties (“Customer” and “Commercial Terms Form”, respectively), and Cymulate Ltd. (“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 these terms 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.
- Access to Cymulate’s remote cloud-based cyber breach and attack simulation platform and any other material (whether written or oral), products, deliverables, reports and/or services provided by Cymulate under this Agreement including the Agent (collectively, the “Platform“) is provided to 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.
- Customer may not use the Platform and may not accept the Agreement if it is an entity barred from receiving the Platform under the laws of the State of Israel or other countries including the country in which Customer is a resident or from which Customer uses the Platform.
- If Customer is agreeing to be bound by this Agreement on behalf of its employer or other entity, Customer represents and warrants that it has full legal authority to bind its employer or such entity to this Agreement. If Customer does not have the requisite authority, it may not accept the Agreement or use the Platform on behalf of its employer or other entity.
- The Services
- 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, Cymulate hereby grants Customer the right, during the term of this Agreement, to install the “Agent” on its organizations systems and to access and use the Platform for the sole purpose of conducting such number of cyber security testing simulations detailed in the Commercial Terms Form for Customer’s organizations systems in order to validate its current security posture. 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.
- Customer shall not make any copies of the Platform and are 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.
- As part of the Platform, Cymulate shall grant Customer a limited, revocable, non-exclusive and non-transferable license to install during the term of this Agreement an executable plugin which functions with Outlook account (“Agent“) on Customer’s organizations systems for the purposes stated herein.
- Customer is solely responsible for providing equipment, infrastructure, servers and all third-party software and licenses required for running the Platform. Customer is responsible for all fees charged by third parties related to its access and use of the Platform (e.g., charges by Internet service providers). If any IP addresses, hosts, facilities or web applications are owned or hosted with a service provider or other third party, it will be necessary for Customer to obtain permission from that party before using the Platform in writing or through email. Customer hereby represents and warrants that it has or will obtain prior to using the Platform any authorizations and consents required in order to use the Platform and shall, if requested by Cymulate, provide written evidence of such consent to Cymulate.
- 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 Customer unless the update is accompanied by a separate license, in which case the terms of that license will govern. Customer agrees that updates may require it to change or update your systems, and may affect its ability to use, access or interact with the Platform.
- Cymulate shall make commercially reasonable efforts to ensure that the Platform will be accessible and functional on a continuous basis, with the exception of scheduled maintenance periods in accordance with its Service Level Agreement attached hereto as Annex A. 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 that are beyond Cymulate’s reasonable control or not reasonably foreseeable by Cymulate, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
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.
- In using the Platform, Customer will adhere to all applicable laws regarding the transmission and distribution of information or material over the Internet and will otherwise adhere to generally accepted standards of Internet usage.
- Account Information
- During the process of creating an account in order to access the Platform (“Account“), Customer may be required to select a password (the “Login Information“). The following rules govern the security of Customer’s Account and Login Information. For the purposes of this Agreement, references to Account and Login Information shall include any account and account information, including user names, passwords or security questions, whether or not created for the purpose of using the Platform, that are used to access the Platform:
- Customer shall not share its Account or Login Information, nor let anyone else access its Account or do anything else that might jeopardize the security of its Account;
- In the event Customer becomes aware of or reasonably suspects any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of its Login Information or unauthorized access to its Account, Customer must immediately notify Cymulate and modify its Login Information;
- Customer is solely responsible for maintaining the confidentiality of the Login Information, and will be responsible for all uses of its Login Information, including purchases, whether or not authorized by it;
- Customer is responsible for anything that happens through its Account, whether or not such actions were taken by it, including, for the avoidance of doubt, actions taken by third parties. Customer therefore acknowledges that its Account may be terminated if someone else uses it to engage in any activity that violates this Agreement or is otherwise improper or illegal;
- Customer undertakes to monitor its Account and restrict use by any individual barred from accepting this Agreement and/or using the Platform, under the provisions listed herein or any applicable law. Customer shall accept full responsibility for any unauthorized use of the Platform by any of the above mentioned;
- Cymulate reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
- Account Termination
- Cymulate may refuse access to the Platform or may terminate Customer’s Account without notice for any reason, including, but not limited to, a suspected violation of this Agreement, illegal or improper use of Customer’s Account, or illegal or improper use of the Platform or Cymulate’s intellectual property as determined by Cymulate in its sole discretion. Customer may lose its user name as a result of Account termination, without responsibility on the part of Cymulate for any damage that may result from the foregoing. If Customer has more than one Account, Cymulate may terminate all of its Accounts.
- In addition to the foregoing, Cymulate may selectively remove or revoke benefits associated with Customer’s If Customer’s Account, or a particular subscription for the Platform associated with Customer’s Account, is terminated, suspended and/or if any benefits are selectively removed or revoked from Customer’s Account, no refund will be granted, no benefits will be credited to Customer or converted to cash or other forms of reimbursement, and Customer will have no further access to its Account or benefits associated with its Account or such particular service.
- Customer acknowledges that Cymulate is not required to provide it notice before suspending or terminating its Account or selectively removing or revoking benefits associated with its Account. In the event that Cymulate terminates Customer’s Account, Customer may not participate nor make use of the Platform again without Cymulate’s express consent. Cymulate reserves the right to refuse to keep Accounts for, and provide access to the Platform or other services to, any individual. Customer may not allow entities whose Accounts have been terminated by Cymulate to use its Account. If Customer believe that any action has been taken against its Account in error, please contact Cymulate at: Cymulate Support.
- Customer is solely responsible to preserve 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. Customer cannot rely upon the Platform as a storage space for such content.
- Customer will pay Cymulate a subscription fees for the Platform in accordance with the commercial terms set forth in the Commercial Terms Form (“Fees“). The Fees shall be paid regardless of actual use of the Service and shall be non-refundable.
- All prices and fees indicated in the Commercial Terms Form 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.
- 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, Cymulate may:
- If the non-payment of an invoice continues for a period of sixty (60) days from the date of invoice – disconnect the Platform. Customer will not be able to login to the account and analytics and alerts will be disabled.
- If the non-payment of an invoice continues for a period of ninety (90) days from the date of invoice – terminate the Platform. All account data and history shall be permanently deleted.
- Term and Termination
- The term of this Agreement shall be set in the Commercial Terms Form (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. Both the Initial Term and any renewal term are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement without cause for any reason.
- Cymulate may terminate this Agreement immediately upon written notice to Customer if Customer have materially breached this Agreement or if Customer fails to make any timely payment of the Fees.
- 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 6 (“Term and Termination”), 8 (“Title”), 9 (“Confidential Information”), 10 (“Limitations on use”), 11 (“Disclaimer of Warranties”), 12 (“Limitations on Liability”), 13 (“Indemnification”) and 14 (“General”) hereunder, which shall survive the expiration or termination of this Agreement.
- Information Collected
- Cymulate may elect to notify relevant third-party software and systems vendors of the existence 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 Customer or which might reasonably be expected to identify Customer.
- All right, title and interest (including any and all 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 Customer except as explicitly provided in Section 2 above.
- 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) create any derivative work or translation of the Platform.
- Nothing in this Agreement gives Customer a right to use any of Cymulate’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
- Customer hereby agrees to 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 Customer provides 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 Customer as aforesaid, shall vest solely with Cymulate.
- Confidential Information
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. Accordingly, Customer agrees to maintain the confidentiality of any proprietary information received by Customer 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 Customer 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 to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of Customer. Customer agrees not to use said Confidential Information for any purpose except as necessary to fulfill your obligations and exercise your rights under this Agreement. Customer shall protect the secrecy of and avoid disclosure and unauthorized use of Cymulate’s Confidential Information to the same degree that it takes to protect your own confidential information and in no event less than reasonable care.
- Limitations on use
Customer agrees to use this Platform solely to perform security assessments and other services provided by Cymulate through Cymulate’s Platform.
Customer agrees to use the Platform’s services to make only legitimate actions.
Customer agrees to not abuse the Platform. “Abuse” includes, without limitation, using the Platform to:
- Defame, harass, stalk, threaten, abuse or otherwise violate others’ rights as defined by applicable law.
- Harm or interfere with the operation of others’ computers and software in any respect, including, without limitation, by uploading, downloading or transmitting corrupt files or computer viruses.
- Violate applicable intellectual property, publicity or privacy rights, including, without limitation, by uploading, downloading or transmitting materials or software.
- Omit or misrepresent the origin of, or rights in, any file Customer download or upload, including, without limitation, by omitting proprietary language, author identifications, or notices of patent, copyright or trade-mark.
- Transmit, post, or otherwise disclose trade secrets, or other confidential or protected proprietary material or information, moreover provide Cymulate’s proprietary information to any 3rd party (including: business entities, vendors, integrators etc.).
- Download or upload files that are unlawful to distribute through the Platform.
- Interfere with or disrupt the Platform or servers or networks connected to the Platform, including attempting to interfere with the access of any other user, host or network, including without limitation, overloading, initiating, propagating, participating, directing or attempting any “denial of service” attacks, “spamming”, “crashing”, “flooding” or “mail-bombing” the Platform.
- Direct bots, spiders, crawlers, avatars, intelligent agents or any other automated process at Cymulate’s computer systems or otherwise, create unreasonable load upon any of Cymulate’s computer hardware, network, storage, input/output or electronic control devices or infrastructure.
- Transmit any information or software obtained through the Platform, or copy, create, display, distribute, license, perform, publish, recreate, reproduce, sell, or transfer works deriving from the Platform.
- Falsely use a password or personal identification number during logging into the Account, or misrepresent one’s identity or authority to act on behalf of another.
- Violate this Agreement in any other manner.
- Disclaimer of Warranties
- Customer understands that the Platform may use various methods and software tools to probe network resources for security-related information and to detect actual or potential security flaws and vulnerabilities. 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 Customer from time to time). Furthermore, Customer acknowledges that use of the Platform could possibly result in service interruptions or degradation regarding its systems and accept those risks and consequences. Customer further acknowledges that it is its responsibility to restore network computer systems to a secure configuration after using the Platform.
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.
- Customer understands that use of the Platform does not constitute any guarantee or assurance that 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.
- Limitations on Liability
in no event shall cymulate 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 or loss or damages to goodwill, in connection with this agreement regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if cymulate has been advised of the possibility of such damages or loss. notwithstanding anything to the contrary herein, under no circumstances will cymulate’s total and aggregate liability to CUSTOER 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 us $100.
To the maximum extent permitted by law, Customer agrees to defend, indemnify and hold harmless Cymulate, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) its use of the Platform, and (b) any non-compliance with this Agreement and/or breach of Customer’s representations.
- No agency, partnership, joint venture or employment relationship is or shall be created by virtue of this Agreement.
- Cymulate may assign this Agreement without notice to Customer. Customer shall not assign this Agreement or its rights hereunder without the prior written consent of Cymulate (such consent may be withheld or conditioned at Cymulate’s sole discretion) and any assignment without Cymulate’s prior written consent shall be null and void and of no effect. Cymulate may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its affiliates, contractors or subcontractors.
- Cymulate may make changes to the Agreement as it distributes new versions of the Platform. When these changes are made, Cymulate will make a new version of the Agreement available on the website where the Platform is made available.
- Customer hereby agrees that Cymulate may identify Customer on Cymulate’s website(s) and other marketing materials as a user of the Platform.
- This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of Israel, without regard to its conflict of law principles. All actions, suits or proceedings under or related to this Agreement shall be adjudicated in the courts of Tel-Aviv, Israel, and the Parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
- All notices permitted or required hereunder shall be in writing and shall be sent by facsimile, or personal delivery at the facsimile number, or address as either Party may specify. Notices sent to Cymulate shall be addressed to Cymulate , 2 Nim St., Rishon Le Tzion, Israel and to 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 facsimile, 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 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 Customer have any questions concerning this Agreement, or if Customer desires to contact Cymulate for any reason, please direct all correspondence to Cymulate Support.