Deep Instinct Limited Ransomware Warranty
This Limited Ransomware 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” or “Warranty Holder”) 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. “Eligible Device” means the endpoint computer on which the Product is installed and commissioned as active, provided that, the Product is operating on and is compatible with the Most-Recent Version of the Product and the applicable Windows operating system.
1.3. “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 End User licenses the right to use the Product
1.4. “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 A, as well as any configuration as may be prescribed by Deep Instinct.
1.5. “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.
1.6. “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.
1.7. “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).
1.8. “Ransomware Event” means the unauthorized access of a third party to an Eligible Device, consisting of a malware specifically utilizing encryption-ware measures and attempting to encrypt data stored on the Eligible Device, all for the purpose of demanding payment of ransom from you, where the Product had failed to detect and prevent the occurrence of such unauthorized access. It is hereby clarified that any access by any of your representative (such as employees, consultants, contractors, service providers etc.) will not be considered as an unauthorized access and as such shall not go under the Ransomware Event definition.
1.9. “Ransomware Costs” means the following costs reasonably incurred by you as a result of the occurrence of a Ransomware Event, as may be applicable on a per-Eligible Device infected by a Ransomware Event basis: (i) legal consultation fees and expenses incurred by you to obtain legal advice associated with a Ransomware Event, provided that such fees shall exclude any fees or expenses incurred solely in connection with the response to or defense of any actual, anticipated or threatened suit, action, proceeding, litigation or compliance demands brought against you; (ii) notification fees and expenses incurred by you in connection with responses to inquiries from and payment of fines to governmental authorities due to the occurrence of a Ransomware Event, or due to maintenance of notification obligations of Data Subjects, as may be applicable; and (iii) fees and expenses relating to forensic services associated with a ransomware Event; (iv) other payments related directly to the remediation and recovery cost. For removal of doubt, the reimbursement will not include the ransom payment It is hereby clarified that the Ransomware costs will not include any hardware replacement.
1.10. “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.
1.11. “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. If you experience a Ransomware Event on an Eligible Device during the term of this Limited Warranty, you shall be entitled the sole and exclusive remedy under this Limited Warranty, subject to the terms herein, for the reimbursement of the Ransomware Costs you incur that result directly from such Ransomware Event; provided, however, that the reimbursement of any Ransomware Costs per Warranty Period shall be paid to you up to a maximum amount not to exceed the lower amount of: (a) an aggregate amount of US$[500,000/2,000,000/3,000,000]per annum for all Eligible Devices infected by a Ransomware Event; or (b) US$[1,500/1,250/1,000]per each Eligible Device infected by a Ransomware Event. THE REIMBURSEMENT OF RANSOMWARE COSTS 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 RANSOMWARE EVENTS.
3.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 Ransomware Costs under this Limited Warranty will not be increased if you are comprised of multiple entities, including your Affiliates.
4.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.
5.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 THE LOWER AMOUNT OF: (A) AN AGGREGATE AMOUNT OF US$ 2,000,000 PER ANNUM FOR ALL ELIGIBLE DEVICES; OR (B) US$ 1,500 PER EACH ELIGIBLE DEVICE. FOR THE AVOIDANCE OF DOUBT, MULTIPLE CLAIMS OR RANSOMWARE EVENTS SHALL NOT EXPAND THE LIMITATION SPECIFIED IN THE FOREGOING SENTENCE.
[1] Subject to number of licenses purchased.
6.Reimbursement Qualification. To be eligible to receive reimbursement of Ransomware Costs, you shall be obliged to comply with the following:
6.1. During the Warranty Period you must have a valid subscription to the Product under an Agreement with Deep Instinct, and such Product must be operating on an Eligible Device in accordance with Deep Instinct’s Minimum Security Policy;
6.2. At the time the Ransomware Event first occurs, you must be using the Most-Recent Version of the Product on the Eligible Device that experienced such Ransomware 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;
6.3. Comply with the provisions of the Reimbursement Request Process (as further detailed in Section 8 below);
6.4. You must be in compliance with your Agreement with Deep Instinct, including without limitation any payment obligations existing thereunder; and
6.5. During the Warranty Period, you shall reasonably cooperate with Deep Instinct to mitigate the impact of any Ransomware Event, and will implement all reasonable remediation steps instructed or provided by Deep Instinct, including blacklisting of any Eligible Devices affected by a Ransomware Event within [*] hours (the “Mitigation Threshold“), and Deep Instinct will not cover any Ransomware Costs associated with losses occurring after the passing of the Mitigation Threshold.
7.Exclusions of Warranty. This Limited Warranty shall not apply with respect of any of the following:
7.1. The Ransomware Event occurs in connection with files which had been expressly excluded by you from this Limited Warranty, or otherwise identified as legitimate files under the ‘Allow List’ as configured in your environment.
7.2. There is any material change to the Eligible Device or to the Product, unless agreed to by Deep Instinct in writing.
7.3. The Product was not installed, used, or maintained in accordance with the Agreement and any documentation provided to you.
7.4. The Eligible Device or Product has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, or (iv) is used with equipment, products or systems not specified in the Documentation.
7.5. Loss arising from 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 collecting any Ransomware Costs under this Limited Warranty, or in representing any facts under a particular Reimbursement Request.
7.6. Loss or damage 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.
7.7. Loss arising from the occurrence of a force Majeure event, including without limitation earth movement; fire; war; nuclear reaction, radiation or contamination, including any radioactive, toxic, explosive or other hazardous or contaminating properties of any radioactive matter or any nuclear installation, reactor or other nuclear assembly or nuclear component thereof, including any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter or any chemical, biological, bio-chemical or electromagnetic weapon,; or Acts of Terrorism (provided that this exclusion will not apply to Cyber Terrorism); War; any nation-state-sponsored malicious or intentional Cyber Incident that is part of or in support of a War involving said nation state; or Cyber Incidents affecting Electronic Data and Computer Systems owned and/or used by you not specifically insured by this Warranty).
7.8. The Ransomware 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.
7.9. The payment of any Ransomware Costs or provision of benefits 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.
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) unauthorised, 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/or; (ii) malware, including but not limited to virus, trojan horses, worms, logic bombs or denial of service attack, and/or (iii) any unintentional or unplanned – whole or partial – outage of a Computer System affecting access to, processing of, use of or operation of any Computer System or any Electronic Data 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 World Wide Web (www)) that allows the transmission of Data, including virtual private networks (VPN).
“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.
8.Reimbursement Request Process
8.1. Notification. You are responsible to provide Deep Instinct with prompt notice via email to Cyberwarranty@deepinstinct.com no later than three (3) business days upon knowledge of any Ransomware Event occurring with respect to a particular Eligible Device you believe may be covered under this Limited Warranty (the “Notice”). This Limited Warranty shall not apply to any Ransomware Costs unless the Notice is provided to Deep Instinct within the timeframe set forth herein.
8.2. Reimbursement Request. If you intend to file a claim under this Warranty, you must provide your request for reimbursement to Deep Instinct via email to Cyberwarranty@deepinstinct.com no later than thirty (30) days after the Notice has been sent to Deep Instinct (a “Reimbursement Request”). Such Reimbursement Request must be submitted to Deep Instinct for each Ransomware Event and shall include all information available to and access to any physical and electronic evidence in your possession regarding the Ransomware Event, and in any event you shall provide the following items: (i) the ransomware file including the ransom message; (ii) list of Devices affected by the Ransomware Event and confirmation that all such devices are Eligible Devices; (iii) description of the configuration and security settings existing in the Eligible Device at the time of the Ransomware Event; (iv) description and Ransomware Costs incurred by you and evidence of payment thereof; (v) written statement by you that you made best efforts to mitigate the costs and losses included in the Ransomware Costs. If not all of the necessary information for the Reimbursement Request is available within the required time frame, you shall provide all information that has been obtained up to that point in time, and provide a request for additional time to submit further information as set forth above. Such request shall not be unreasonably withheld. This Limited Warranty shall not apply to any Ransomware Costs unless the Reimbursement Request is provided to Deep Instinct within the timeframe set forth herein
8.3 Review of Reimbursement Request; Investigation. Deep Instinct shall review the Reimbursement Request, and is hereby authorized by you to share the Reimbursement Request and any information that is reasonably necessary to assess the validity of the Reimbursement Request with the Warranty Underwriter, provided such Warranty Underwriter is under an obligation to keep such information confidential. 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 the Ransomware Event and your eligibility to receive reimbursement of Ransomware Costs associated therewith in a period not to exceed forty-five (45) business days from the date Deep Instinct confirmed the receipt of all information required for review of the Reimbursement Request.
8.4. Payments; Audit. Deep Instinct shall reimburse you with the Ransomware costs within forty-five (45) business days of the conclusion of its review of the Reimbursement Request, provided you have submitted all necessary information with your Reimbursement 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 such Ransomware Costs upon reasonable written notice made thirty (30) days prior to the audit, and such audit shall be conducted during regular business hours.
9.Other Recovery. Deep Instinct will not pay under this Limited Warranty for any portion of the Ransomware costs for which you have received or will receive payment from another source. This includes, but is not limited to, payments from insurance policies and other warranties (including under the Agreement). If you receive such other recovery after Deep Instinct has paid the Ransomware claimed under the Reimbursement Request, you agree to notify Deep Instinct and refund to us the difference between the payment you received from us and the payment you would have received from Deep Instinct if the other recovery had been known to us at the time of the settlement.
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 of the Agreement.
12.General
12.1. Independent Contractors. Deep Instinct and you 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 prejudiced 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 you 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
Security Configurations
- Prevention – enabled with minimum threat severity set to high
- D-Cloud Services – enabled
- Code Injection Protection – enabled in prevention mode
- Shellcode execution protection – enabled in prevention mode
- Enhanced Ransomware Protection – enabled in prevention mode
- Malicious PowerShell protection – enabled in prevention mode