Deep Instinct Limited Efficiency Warranty
This Limited Efficiency Warranty (the “Limited Warranty”) is a legally binding agreement made by and between the entity that executed the Purchase Schedule and EULA (as such terms are defined below) (collectively, the “Agreement”) that incorporated this Limited Warranty by reference (“you”) and Deep Instinct (USA) Inc., (for and on behalf of itself and its Affiliates, “Deep Instinct”. Words and phrases that have a defined meaning in the Agreement will have the same meaning in this Limited Warranty. The Limited Warranty is not available to all customers of Deep Instinct and is subject to eligibility.
This Limited Warranty is provided in combination with the Agreement between you and Deep Instinct. No coverage is provided under this Limited Warranty for any loss or event that took place prior to the issuance of this Limited Warranty. Unless otherwise indicated, this Limited Warranty shall be in effect during the time period that the Agreement is in effect. However, Deep Instinct may amend or discontinue this Limited Warranty when Deep Instinct renews or extends the Agreement.
1. Definitions
1.1. “Affiliate” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Limited Warranty, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for as long as such control exists.
1.2. “Benign” means any file typically identified with certain enterprise applications as being whitelist, as well as any files set by an Eligible Customer as ‘benign’ on the local application whitelist, or any files that the enterprise applications identified under Exhibit A shall not be considered ‘benign’.
1.3. “Eligible Customer” means any end-users of Deep Instinct, excluding software vendors.
1.4. “Eligible Device” means the endpoint computer on which the Product is installed and commissioned as active, provided that, throughout the Screening Period, the Product is operating on and is compatible with the then-current version of the Product (in the event of a new minor/major release of the Product, as made available to you through the user interface, you will have up to 90 days to update the Product version and in the event of a new inference model of the D-Brain, as made available to you through the user interface, you will have up to 30 days to update the model version) and the applicable Windows operating system.
1.5. “EULA” means Deep Instinct’s End User License Agreement which sets up the terms and conditions that an end user must perform, under which an Eligible Customer licenses the right to use the Product.
1.6. “False-Positive Threshold” means the occurrence of a number of False-Positive Events during use of the Product which, if aggregated together surpasses, the number of purchased devices in the respective Screening Period multiplied by 0.1. Any False-Positives Events occurring in connection with Benign files shall not be counted towards the threshold.
1.7. “False-Positive Event” means a report by the Product of a false-positive on the Portable Executable format that occurred on an Eligible Device for Windows operating systems (PE file) due to failure to efficiently detect and filter malware, by misclassifying such benign files as malware.
1.8. “Minimum Security Policy” means Deep Instinct policy with respect to the minimum configurations, settings, actions and remediations applicable to your use of the Product, which shall include the configurations set forth under Exhibit B, as well as any configuration as may be prescribed by Deep Instinct.
1.9. “Product” means the Deep Instinct security products identified in a Purchase Schedule with you in concurrence with the EULA, including related documentation, materials and any updates provided to you under the EULA.
1.10. “Purchase Schedule” means the purchase schedule executed by and between you and Deep Instinct that references and incorporates this Limited Warranty and that identifies any applicable warranty parameters (e.g., the number of Eligible Devices, subscription type).
1.11. “Screening Period” means a three-month period during the Term measured on a quarterly basis beginning as of the next fiscal quarter following the effective date of the EULA executed by the Eligible Customer with Deep Instinct.
1.12. “Warranty Period” means each then-current 12-month period entered into under the Term of this Limited Warranty consisting of either the Initial Term or a Renewal Term, as may be applicable.
1.13. “Warranty Underwriter” means such insurance carrier which has been appointed and authorized by Deep Instinct (USA), Inc. to act as the insurance carrier underwriting this Limited Warranty.
2.Warranty. This Limited Warranty provides you a guarantee of performance of the Product in detecting False-Positive Events and a commitment by Deep Instinct that the occurrence of such False-Positive Events will not surpass a certain threshold as set forth under this Limited Warranty. If during the term of this Limited Warranty, you experience underperformance of the Product which surpasses the False-Positive Threshold occurring for at least two consecutive Screening Periods (“Underperformance“), you shall be entitled, subject to the terms herein, for the payment of the Compensation Amount (as further detailed below). THE PAYMENT OF THE COMPENSATION AMOUNT IN ACCORDANCE WITH THIS LIMITED WARRANTY SETS FORTH DEEP INSTINCT’S SOLE AND EXCLUSIVE REMEDY AND DEEP INSTINCT’S SOLE LIABILITY RELATING TO CLAIMS ARISING FROM FALSE-POSITIVE EVENTS.
3.Compensation under Warranty. If there was Underperformance of the Product, as determined by Deep Instinct, then Deep Instinct shall pay you 25% of the annual subscription fee for each single Eligible Device (as counted at the end of the respective Screening Period) times the number of False Positive Events that exceed the Threshold in the respective Screening Period (the “Compensation Amount”). Notwithstanding, in any event the Compensation Amount shall be limited to a total aggregate amount of 150% the annual subscription fee paid per all Eligible Devices.
4.Affiliates. Your Affiliates may purchase a separate Limited Warranty with respect to any Agreements existing between such Affiliates and Deep Instinct. In any Event, any payment of the Compensation Amount under this Limited Warranty will not be increased if you are comprised of multiple entities, including your Affiliates.
5.Disclaimer of Warranty.EXCEPT AS EXPRESSLY SET FORTH UNDER THIS LIMITED WARRANTY AND UNDER THE AGREEMENT, THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, AND DEEP INSTINCT AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. DEEP INSTINCT DOES NOT WARRANT THAT THE PRODUCT WILL BE ERROR-FREE OR ITS USE UNINTERRUPTED, THAT DEEP INSTINCT WILL BE ABLE TO CORRECT ANY ERRORS WITH THE PRODUCT, OR THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. DEEP INSTINCT IS NOT RESPONSIBLE OR LIABLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PRODUCT THAT ARISE FROM YOUR DATA, SYSTEMS OR DEVICES, OR APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
6.Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DEEP INSTINCT OR ITS AFFILIATES HAVE ANY LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS LIMITED WARRANTY FOR ANY LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL DEEP INSTINCT’S LIABILITY UNDER OR ARISING FROM THIS LIMITED WARRANTY EXCEED AN AGGREGATE AMOUNT OF 1.5 TIMES THE AMOUNTS PAID BY YOU TO DEEP INSTINCT IN RESPECT OF ALL ELIGIBLE DEVICES IN THE TWELVE (12) MONTHS PRECEING THE OCCURRENCE OF THE FALSE-POSITIVE THRESHOLD.
7.Reimbursement Qualification. In order for the payment amount to be paid, you must comply with all of the following:
7.1. During the Warranty Period you must have a valid subscription to the Product under an Agreement with Deep Instinct;
7.2. During the Warranty Period the Product must be operating on an Eligible Device in accordance with Deep Instinct’s Minimum Security Policy (default settings set at moderate or higher);
7.3. At the time the False-Positive Event first occurs during the Screening Period, 75% deployed Eligible Devices out of the total purchased Eligible Devices;
7.4. You must be in compliance with your Agreement with Deep Instinct, including without limitation any payment obligations existing thereunder;
7.5. At the time the False-Positive Event first occurs, you must be using the Most-Recent Version of the Product on the Eligible Device that experienced such False-Positive Event. As may be applicable, you shall also activate the D-Brain package provided by Deep Instinct and ensure that such package is up to date in accordance with the Most-Recent Version definition;
7.6. Comply with the provisions of the Compensation Request Process (as further detailed in Section 9 below).
8.Exclusions of Warranty. This Limited Warranty shall not apply with respect of, and the False-Positive Threshold shall exclude any False-Positives Events arising out of, any the following:
8.1. There is any material change to the Eligible Device or to the Product in accordance with the warranty exclusions set forth under the EULA, unless such changes were agreed to by Deep Instinct in writing.
8.2. Any intentional misconduct, or fraudulent behavior, gross negligence, criminal activity, malicious acts or dishonesty of you or your officer, director, proprietor, or partner, acting alone or in collusion with others, in connection with the occurrence of False-Positives Events on in making any representations of facts under a particular Compensation Request.
8.3. Any False-Positives Events resulting from a total or partial interruption or reduction in performance of power, heating, lighting, water, electricity, utility, internet or any other telecommunication including cable or satellite.
8.4. Any False-Positives Events arising from a force majeure event, including without limitation earth movement; fire; nuclear reaction, radiation or contamination; or any activity involving the use or threatened use of any nuclear, biological, chemical, or radioactive agent, material, device or weapon.
8.5. Any False-Positives Events arising from any Acts of Terrorism, provided that such exclusion shall not apply to Cyber Terrorism.
8.6. Any False-Positives Events arising from War.
8.7. Any False-Positives Events arising from any nation state-sponsored malicious or intentional Cyber Incident that is part of or in support of a War involving said nation state.
8.8. Any False-Positives Events arising from Cyber Incidents affecting Electronic Data and Computer Systems owned and/or used by you.
8.9. The False-Positive Event took place prior to the issuance of this Limited Warranty or after this Limited Warranty or the Agreement has expired or been cancelled or voided.
8.10. The payment of any Compensation Amount under this Limited Warranty would either expose Deep Instinct or the Warranty Underwriter to any sanction, prohibition or restriction under United Nations resolutions or any sanctions, laws or regulations of the European Union as well as the United States of America or would contradict the legislative provisions applicable to Deep Instinct or the Warranty Underwriter concerned.
8.11. Any failure to follow any written instructions given to you by Deep Instinct with respect of the Product.
For the purpose of this Section:
“Acts of Terrorism” means any physical act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear.
“Computer System” means any computer, hardware, information technology and communications system or electronic device − including any similar system or any configuration of the aforementioned and including any associated input, output or Electronic Data storage device, networking equipment or back up facility.
“Cyber Incident” includes (i) unauthorized, intentional or malicious acts or omissions (including by any of your employees), regardless of time and place, or the threat or hoax thereof involving access to, processing of, use of or operation of any Computer System, and (ii) malware, including but not limited to virus, trojan horses, worms, logic bombs or denial of service attack, and (iii) any unintentional or unplanned – whole or partial – outage of any Computer System, hardware, information technology and communications system, or electronic device, affecting access to, processing of, use of or operation of such Computer System or any Electronic Data derived from any system used by you by any person or group(s) of persons.
“Cyber Terrorism” means any act or series of acts or threat thereof of any person or group of persons, whether acting alone or on behalf of or in connection with any organization through the use of Computer Systems, to destruct, disrupt or subvert any Computer System, Infrastructure, the Internet, telecommunications and/or its content, with the intention to cause harm or committed for religious, ideological or political purposes including but not limited to the influencing of any government and/or to put the public or a section of the public in fear.
“Electronic Data” means facts, concepts and information converted to a form useable for communications, interpretation or processing by electronic and electromechanical data processing or electronically controlled equipment and includes programmes, software and other coded instructions for the processing and manipulation of data or the direction and manipulation of such equipment owned or used by you.
“Infrastructure” means any telephone equipment, air conditioning, power supply installations, standalone generators, frequency inverter units, transformers and any other facilities that are used for maintaining the functioning of the electronic facilities that support the Computer Systems and Data in operation.
“Internet” means the worldwide public Data network (the so-called World Wide Web (www)) that allows the transmission of Data, including virtual private networks (VPN).
“Most-Recent Version”means the then current version of the Product. In the event of a new minor/major release of the Product, you will have up to 90 days to update the Product version. In the event of a new inference model of the D-Brain, you will have up to 30 days to update the model version.
“Terrorist Activity” means any physical act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear.
“War” means any state of hostile conflict (whether declared or not) that is carried on by physical force of arms and/or violence to resolve a matter of dispute between two or more states or nations, including physical acts of war such as invasion, insurrection, revolution or military coup.
9.Compensation Request Process
9.1. Notification. You are responsible to provide Deep Instinct with prompt notice via email to Cyberwarranty@deepinstinct.com if you experience underperformance of the Product which surpasses the False-Positive Threshold during any time in a given Screening Period, provided however, that in any event, you are obligated to provide notice to Deep Instinct on the occurrence of Underperformance in the Products no later than three (3) days following the consummation of the second Screening Period during which Underperformance had occurred (the “Notice”). This limited Warranty shall not apply to any Compensation Requests unless the Notice is provided to Deep Instinct within the timeframe set forth herein.
9.2. Compensation Request. If you intend to file a claim under this Warranty, you must provide your request for compensation to Deep Instinct via email to Cyberwarranty@deepinstinct.com no later than thirty (30) days after the Notice informing Deep Instinct that Underperformance in the Product has occurred has been sent to Deep Instinct. Amount (each a “Compensation Request”). A separate Compensation Request must be submitted to Deep Instinct for each Screening Period. Such Reimbursement Request shall include all information available to and access to any physical and electronic evidence in your possession regarding any and all False-Positive Events counted towards the False-Positive Threshold, and in any event you shall provide the following items: (i) the result of the look-up of a False-Positive Event with the local application whitelist, including the hash and file description; (ii) list of Eligible Devices affected by any False-Positive Events and confirmation that all such devices are Eligible Devices; and (iii) description of the configuration and security settings existing in the Eligible Device at the time of the False-Positive Event. You hereby declare that the information and materials disclosed by you to Deep Instinct are complete and accurate in any and all material manner and are not misleading and there is no information or material that has not been disclosed to Deep Instinct that if disclosed by you, individually or taken together, materially affect Deep Instinct’s liability hereunder in any material manner.
9.3. Review of Compensation Request; Investigation. Deep Instinct shall review the Compensation Request, and is hereby authorized by you to share the Compensation Request and any information that is reasonably necessary to assess the validity of the Compensation Request. You shall provide any additional information reasonably requested by Deep Instinct at any time. Upon receiving all reasonably required information as may be requested by Deep Instinct, Deep Instinct shall conduct an investigation of all False-Positive Events relating to the False-Positive Threshold which are subject of the Compensation request and your eligibility to receive the Compensation Amount associated therewith. Such investigation shall not exceed forty-five (45) business days from the date Deep Instinct confirmed the receipt of all information required for review of the Compensation Request.
9.4. Payments; Audit. Deep Instinct shall pay the Compensation Amount within forty-five (45) business days of the conclusion of its review of the Compensation Request, provided you submitted all necessary information under your Compensation Request and subject to the Warranty Underwriter approval of the Reimbursement Request. During the term of this Warranty Agreement and for a period of three (3) years thereafter, Deep Instinct shall have the right at its own expense to inspect, and you shall maintain and provide, any of your records related to the False-Positive Events under the False-Positive Threshold, as applicable. Deep Instinct shall provide advance written notice of no less than thirty (30) days prior to the audit, and such audit shall be conducted during regular business hours.
10.Insurance. Deep Instinct has obtained one or more insurance policies from the Warranty Underwriter to cover its obligations under this Warranty Agreement. You hereby acknowledge that you are not an insured party under such insurance policies. For removal of doubt, this Limited Warranty does not provide any third party beneficiary status to you or provide any rights to you to pursue any claim directly against the Warranty Underwriter.
11.Term; Termination.This Limited Warranty shall become effective as of the effective date of the Agreement entered into between the parties, and shall remain in effect for a period of one (1) year thereafter (the “Initial Term”). Thereafter, this Limited Warranty shall remain effective for successive one-year periods, provided you paid all applicable Fees stated under the Agreement, and the subscription to the Product or the Agreement with Deep Instinct had not expired or terminated in accordance with the terms of the Agreement (each, a “Renewal Term” and together with the Initial Term, the “Term”). Notwithstanding the foregoing, Deep Instinct may discontinue this Limited Warranty prior to each Renewal Term at its sole discretion and upon providing notice to you of any such discontinuation. Upon the expiration or termination of the subscription to the Product or the Agreement with Deep Instinct, this Limited Warranty shall immediately terminate and have no force and effect. Any discontinuation of the Limited Warranty shall not affect your subscription with Deep Instinct which shall remain in effect in accordance with the Agreement.
12.General
12.1. Independent Contractors. Deep Instinct and Customer are independent contractors and shall represent themselves as such in all regards. Neither the custom nor dealing of the Parties nor any provision of this Limited Warranty shall be construed to render the Parties to be joint venturers, partners, associates, master/servant or employer/employee.
12.2. Assignment and Binding Effect. Neither Party may assign this Limited Warranty without the advance written authorization of the other party, such consent not to be unreasonably withheld. Notwithstanding the above, either party may assign, without such consent aforementioned, as part of such party’s merger, acquisition, or sale of all or substantially all of such Party’s assets, or to a wholly-owned subsidiary of a Party, provided the other party is not materially prejudices by said assignment. Subject to the foregoing, this Limited Warranty shall be binding upon and inure to the benefit of the successors and assigns of the parties.
12.3. Severability. If any term, provision, covenant or condition of this Limited Warranty is held invalid or unenforceable for any reason, the remaining provisions of this Limited Warranty shall continue in full force and effect as if the Limited Warranty had been executed with the invalid portions eliminated. The Parties agree to substitute for the invalid provision a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
12.4. Waivers. Any delay, omission or failure to exercise any right or remedy under this Limited Warranty shall not constitute a continuing waiver of such right or remedy.
12.5. Governing Law. This Limited Warranty shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its choice of laws principles. The federal and state courts in New York, NY shall have exclusive jurisdiction over any claims arising from or relating to this Agreement. The Parties unconditionally waive their respective rights to a jury trial for any claim or cause of action based upon or arising out of, directly or indirectly, this Limited Warranty.
12.6. Entire Agreement. This Limited Warranty constitutes the entire agreement between Deep Instinct and Customer with respect to the subject matter hereof, and supersedes all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to such subject matter. This Limited Warranty may be amended, or any provision waived, only by a written agreement signed by both parties. If any party fails to enforce any term or fails to exercise any remedy, such failure to enforce or exercise on that occasion will not prevent enforcement or exercise on any other occasion.
12.7. Notices. Subject to notification procedure under Section 1, any notice, request, demand or other communication will be deemed to be properly given when (i) hand delivered, (ii) sent by courier or air mail or first class registered mail, postage prepaid, or (iii) sent by facsimile or any other electronic means, including via emails.
12.8. Counterparts. This Limited Warranty may be executed in two counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
Exhibit A
Enterprise Application
- Gaming Applications
- Bitcoin Miners
Exhibit B
Security Configurations
- Prevention Settings – set at moderate or higher
- D-Cloud Services – enabled