Mimic Terms and Conditions
PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS (THE “AGREEMENT”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER” OR “YOU”), REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF MIMIC SOLUTIONS, THIS AGREEMENT GOVERNS CUSTOMER’S RIGHTS TO USE THE MIMIC SOLUTIONS. BY ASSENTING TO THIS AGREEMENT (EITHER BY CLICKING, CHECKING A BOX, ACCEPTING A QUOTE OR PLACING AN ORDER), CUSTOMER ACCEPTS THIS AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND MIMIC NETWORKS, INC., A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS LOCATED AT 2479 E. BAYSHORE ROAD #275, PALO ALTO, CA 94303, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, “MIMIC”). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT ASSENT, AND CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS OR USE THE MIMIC SOLUTIONS. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE AGREEMENT, THE DATE SET FORTH ON AN ORDER OR THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES OR USES ANY MIMIC SOLUTION (“EFFECTIVE DATE”).These Mimic Terms and Conditions are a master agreement that covers all solutions purchased by Customer hereunder, provided, however, any provisions that are applicable only to specific Products or Services apply only to the extent Customer has purchased, accessed or used such Products or Services.
1. Definitions
"Addendum” means an Addendum to this Agreement setting forth additional terms relating to a Solution.“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).“Aggregated Data” means any data that has been aggregated so that it is not identifiable or attributable to Customer or any of its Authorized Users and may include data based on Customer’s use of the Solutions“Analytics Data” means any technical, statistical or analytical data; correlative and/or contextual data; output from analytics and detections which are periodically gathered or aggregated in connection with Customer use of a Solution, including but not limited to data generated in connection with Customer's access, use and configuration of the Solutions and data derived from it (e.g., interacting with the Solutions), but which excludes any data that could be used to identify Customer or any of its Authorized Users.“Applicable Data Protection Laws” means any laws that regulate the processing, privacy or security of Customer Personal Data and that are directly applicable to each respective party to this DPA in the context of Mimic processing Customer Personal Data.“Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install the Products.“Customer” means, as the context requires, in addition to the entity identified above, any Customer Affiliate that places an Order under these Mimic Terms and Conditions, uses or accesses any Solution hereunder, or benefits from the Customer’s use of a Solution.“Customer Data” means all data, information, records and other content provided, uploaded, transmitted, inputted, edited, authored, or otherwise submitted by Customer or its Authorized Users under this Agreement in connection with the Solutions. Customer Data does not include any Mimic Data or publicly available data.“Customer Application” means the source or object code of Customer’s and Customer’s suppliers along with any configuration instructions, scripts or settings that Customer elects to be protected by the Solutions.“Documentation” means Mimic’s end-user technical documentation included in the applicable Solution.“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, container or virtual machine image.“Error” means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation which causes a material disruption of Customer’s Endpoint.“Fees” means, with respect to any Order, the amount payable by Customer to Mimic or a Mimic Reseller for any Solution specified on said Order.“Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patents and patent applications;(v) websites and internet domain name registrations; and (vi) computer programs, operating systems, applications, firmware, and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof (“Software”).“Internal Use” means access or use solely for Customer’s and its Affiliates’ own internal information security purposes.By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, or (ii) in any event, for the development of any product or service.Internal Use is limited to access and use by Customer’s and its Affiliates’ Authorized Users.For clarity, nothing in this Agreement will prevent or prohibit Customer from providing access to redacted Mimic Data specific to Customer or a threat to Customer’s environment to Customer’s representatives, including third parties, in the event of a security incident or if required to respond to inquiries from Customer’s clients or regulators, to the limited extent such Mimic Data is needed for the presentation or understanding of said security incident.“Machine-Generated Data” means any machine-generated data, such as metadata derived from tasks, file execution, commands, resources, network telemetry, executable binary files, macros, scripts, and processes, code, system files, log files, dll files, login data, binary files, tasks, resource information, commands, protocol identifiers, URLs, network data which may be periodically gathered or aggregated in connection with Customer use of a Solution but which excludes any data that could be used to identify Customer or any of its Authorized Users.“Mimic Data” means means all (i) Mimic Confidential Information; (ii) Analytics Data, (iii) Aggregated Data; (iv) Machine-Generated Data; and (v) Threat Data.“Object Code” means a form of software in a language that a computer can execute directly but is not generally readable by humans without reverse assembly, reverse compiling or reverse engineering.“Order” means any purchase order or other ordering document (including any SOW) accepted by Mimic or a Reseller that identifies the following ordered by Customer: Solution, Solution quantity based on Mimic’s applicable license metrics, price and Subscription/Order Term.“Personal Data” means any information that relates to an identified or identifiable natural person and which is protected as "personal data", "personal information" or "personally identifiable information" under Applicable Data Protection Laws.“Product” means any of Mimic’s cloud-based or on-premise software or other products ordered by Customer as set forth in the relevant Order, the Mimic Data, any Addendum, any Documentation and any Updates thereto that may be made available to Customer from time to time by Mimic.“Product Services” means, collectively (i) the standard technical support services for certain Products provided by Mimic as specified in the applicable Order, (ii) training provided by Mimic as specified in the applicable Order, and (iii) any other Mimic services provided or sold with Products.Product Services do not include Professional Services.“Professional Services” means any professional services performed by Mimic for Customer pursuant to a SOW or other Order.Professional Services may include without limitation configuration, deployment, and operational services not included in Product Services.“Reseller” means an entity that purchases Solutions from Mimic for purposes of resale to Customer.“Services” means, collectively, any Product Services and any Professional Services.“Solutions” means, collectively, any Products, Product Services, or Professional Services.“Statement of Work” or “SOW” means a mutually agreed upon and executed written document describing the Professional Services to be performed by Mimic for Customer, including any fees and expenses related thereto.“Subscription/Order Term” means the period of time set forth in the applicable Order during which: (i) Customer is authorized by Mimic to access and use the Product, or Product Service, or (ii) the period during which Professional Services may be performed.“Threat Data” means any malware, spyware, virus, worm, Trojan horse, indicators of compromise, threat behaviors, other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data that is related to potentially unauthorized third parties associated with the Threat Data and is collected or discovered during the course of using or receiving Mimic Solutions, excluding any such information or data that identifies Customer or to the extent that it includes Personal Data.“Updates” means any correction, update, upgrade, patch, or other modification or addition made by Mimic to any Product and provided to Customer by Mimic from time to time on an as available basis.Updates do not include additional functionality which may be separately licensed by Mimic.2. Affiliates, Orders and Payment
2.1 Affiliates. Any Affiliate purchasing hereunder, or using or accessing any Solution hereunder, or benefitting from the Customer’s use of a Solution, will be bound by and comply with all terms and conditions of this Agreement.The Customer signing these Mimic Terms and Conditions will remain responsible for Customer’s Affiliates’ acts and omissions unless Customer’s Affiliate has entered into its own agreement with Mimic.2.2 Orders. If Orders are submitted on forms other than Mimic’s,then only transaction-specific terms stating the Solutions ordered, quantity, price, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or Reseller purchase order) will have any force or effect unless a particular Order is executed by an authorized signer of Mimic and returned to Customer (or the applicable Reseller).If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein and only with respect to those Solutions ordered on such Order.Orders are non-cancellable.Mimic’s obligations and liabilities to Customer for Orders through any Reseller are subject to, and are governed by, this Agreement.2.3 Payment and Taxes. Customer will pay the Fees for Solutions to the Reseller or Mimic as set forth in the applicable Order.For Orders placed with Mimic and unless otherwise expressly set forth on the Order, signed by Mimic, Customer will pay the undisputed fees and amounts stated on each Order within 30 days after receipt of the applicable invoice. Failure to timely pay any amounts due may result in Mimic revoking Customer’s access and use rights or otherwise suspending the Services. Except as otherwise expressly provided in this Agreement or as agreed by Mimic in a signed SOW, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer’s purchase of the Solutions and the transactions hereunder, except for taxes based on Mimic’s income or with respect to Mimic’s employment of its employees.3. Access, Use and Restrictions
3.1 Evaluation. If Mimic approves Customer’s evaluation use of a Mimic product (“Evaluation Product”), the terms herein applicable to Products also apply to evaluation access and use of such Evaluation Product, except for the following different or additional terms: (i) the duration of the evaluation is as mutually agreed upon by Customer and Mimic, provided, that either Mimic or Customer can terminate the evaluation at any time upon written (including email) notice to the other party; (ii) the Evaluation Product is provided “AS-IS” without warranty of any kind, and Mimic disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (iii) Customer’s access and use is limited to Internal Use by Customer employees only.3.2 Access & Use Rights. Subject to the terms and conditions of this Agreement (including Mimic’s receipt of applicable fees), Mimic grants Customer, under Mimic’s Intellectual Property rights in and to the applicable Product, a non-exclusive, non-transferable, non-sublicensable license to access and use the Products in accordance with any applicable Addendum and Documentation solely for Customer’s Internal Use during the applicable Subscription/Order Term.Customer’s access and use is limited to the quantity in the applicable Order. Furthermore, the following additional terms and conditions apply to specific Products (or components thereof):(a) Products with Software Components. If Customer purchases a subscription to a Product with a downloadable Object Code component(s), Customer may, during the Subscription/Order Term, install and run multiple copies of the Object Code component(s) solely for Customer’s and Customer’s Affiliates’ Internal Use up to the maximum quantity in the applicable Order.(b) Customer Application Testing by Mimic. Customer or Customer’s Affiliates grants to Mimic a non-exclusive, worldwide license to use, copy, store, execute, display, perform, and create derivative works of Customer Application utilizing any non-production test data provided to Mimic by Customer solely for the purposes of: (1) gathering information to generate configurations, settings, scripts, and/or integration programs for the Solutions or between the Solutions and Customer’s Application; and (2) testing the Solution together with the Customer Application to validate any Errors or Updates.Each purpose shall continue for the duration of the Subscription/Order Term. Customer represents it has the right, title and interest to grant the license included in this clause 3.2(b). All testing is controlled by Mimic and conducted on systems under Mimic’s control.Any Mimic Data generated during the testing is the property of Mimic.Customer may revoke Mimic’s access to Customer Application with thirty (30) days advance notice. Upon termination of this Agreement, or revocation of Mimic’s license the Customer Application and any test data that was provided by Customer to Mimic is destroyed not returned.No Customer Data is used in the testing.3.3 Restrictions. The access and use rights set forth in Section 3.2Access & Use Rights do not include any rights to, and Customer will not, with respect to any Solution (or any portion thereof): (i) employ or authorize a anyone other than Customer or Customer Affiliates to use or view the Solution or Documentation, or to provide management, hosting, or support for a Solution; (ii) alter, publicly display, translate, create derivative works of or otherwise modify a Solution,except as necessary to exercise Customer’s rights pursuant to this Agreement or as agreed by Mimic in a signed SOW; (iii) rent, lease, lend, sell, encumber, sublicense, assign, distribute, publish, transfer or otherwise make available the Solution or Documentation, or any portion thereof, to any third party who is not an Authorized User, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iv) allow third parties to access or use a Solution; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for a Solution (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to a Solution or its related systems or networks without Mimic’s prior written consent, for the avoidance of doubt no restriction is made hereunder with respect to any open source software included in a Solution for which such restrictions would violate the terms of said open source software license; (vi) use a Solution to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (vii) remove or alter any notice of proprietary right appearing on a Solution; (viii) upload personal data as defined in the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679, or similar data protection or privacy laws in applicable jurisdictions, without prior authorization from the data owner and Mimic, (ix) submit publicly-visible information that is defamatory, obscene, threatening, abusive or hateful, as determined by Mimic in its sole discretion, or (x) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use a Solution in accordance with laws, rules and regulations directly applicable to Customer, not infringe or violate the intellectual property rights of any third party, and acknowledges that Customer is solely responsible for determining whether a particular use of a Solution is compliant with such laws.In using the Services, Customer will not permit unauthorized use of the Services, any output of the Services, or Mimic’s Solutions and other tools and applications to which Customer may be given access as part of the Services.3.4 Installation and User Accounts. Customer is responsible for the security for each account of an Authorized User, and each account shall only be authenticated to a single individual.Customer shall notify Mimic if Customer learns of any unauthorized access or use of Customer’s user accounts or passwords for a Solution.3.5 Third-Party Software.Mimic uses certain third-party software in its Products, including what is commonly referred to as open source software.Under some of these third-party licenses, Mimic is required to provide Customer with notice of the license terms and attribution to the third party.Licensing terms and attributions for such third-party software that Mimic uses are available upon request.3.6 Ownership & Feedback.Products and Product Services are made available for use or licensed, not sold.Mimic or its suppliers, own and retain all right, title and interest (including all Intellectual Property rights) in and to the Solutions.Any feedback or suggestions that Customer provides to Mimic regarding its Solutions (e.g., bug fixes and features requests) is freely given, non-confidential and may be used by Mimic for any purpose without acknowledgement or compensation. Any use of Customer feedback or suggestions will be at Mimic’s sole discretion, and Customer shall have no responsibility or liability to Mimic or any third party for any such use.All output from the Professional Services and all associated Intellectual Property rights will vest in and remain with Mimic absolutely.3.7 Data Privacy.To the extent Mimic processes Personal Data onbehalf of Customer under Applicable Law, the Mimic Data Processing Agreement located at www.mimic.com/dpashall apply. For clarity, Mimic may use Mimic Data for the purpose of: (i) analyzing, characterizing, deflecting, attributing, warning of, and/or responding to threats against Customer and others, (ii) analyzing trends or benchmarking system performance, (iii) providing, maintaining or improving Mimic Solutions; and (iv) any other purposes consistent with applicable law, provided, however, that in all of the foregoing use cases, data is used in a way that does not identify Customer or any Authorized User.4. Professional Services
4.1 Fees. Professional Services will commence on a mutually agreed upon date, as specified in the Order or SOW.Estimates provided for Professional Services performed on a time-and-material basis are estimates only and not a guaranteed time of completion.Professional Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order or SOW.5. Confidentiality
5.1 Definitions.In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality.“Confidential Information” means non-public information in any form that is in the Recipient’s possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes publicly available (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient in writing; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.5.2 Restrictions on Use. Except as permitted under Section 5.3 (Exceptions), Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein.Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement.Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information.Within 72 hours of Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall provide Discloser with notice thereof.5.3 Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Discloser’s Confidential Information as part of: (x) a legal proceeding to which the Discloser is a party but the Recipient is not; or (y) a government or regulatory investigation of the Discloser, the Discloser shall pay all of the Recipient’s reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for its reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony, unless Recipient’s performance under the terms of the Agreement is a material element of the proceeding or investigation against the Recipient.5.4 Destruction. Upon Discloser’s written request, Recipient shall destroy the Confidential Information and any copies or extracts thereof.However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.5.5 Equitable Relief. Each party acknowledges that a breach of this Section 5 (Confidentiality) may cause the other party irreparable injury and damage. Therefore, each party agrees that the non-breaching party may seek injunctive relief in a court of competent jurisdiction, in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.6. Warranties & Disclaimer
6.1 No Warranty for Pre-Production/Evaluation Versions. Any pre-production or evaluation feature or version of a Solution provided to Customer and identified as such in the applicable Order, or if not so identified is understood by the nature and character of the Solution to be pre-production or evaluation, is experimental and provided “AS IS” without warranty or liability of any kind and will not create any obligation for Mimic to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature or Solution.Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Mimic regarding future functionality or features.6.2 Product Warranty. If Customer has licensed a Product, Mimic warrants to Customer during the applicable Subscription/Order Term that: (i) the Product will substantially operate without Error; and (ii) Mimic used industry standard techniques to prevent the Product at the time of delivery from injecting malicious software viruses into Customer’s Endpoints where the Product is installed.Customer must notify Mimic of any warranty claim during the Subscription/Order Term.Customer’s sole and exclusive remedy and the entire liability of Mimic for its breach of this warranty will be for Mimic, at its own expense, to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct such Error within a commercially reasonable time, including providing an Update or requiringCustomer to install a newer version that corrects the Error (b) procure a substitute Product, that substantially conforms to the non-performing function of the Product or (c) terminate Customer’s license to access and use the applicable non-conforming Product and refund the prepaid fee prorated with such pro-ration based on the number of days remaining in the portion of the Subscription/Order Term for the specific Product which Customer has paid fees but that have not occurred as a result of such termination. Mimic shall have no obligation regarding Errors reported after the applicable Subscription/Order Term.6.3 Services Warranty. Mimic warrants to Customer that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards.Customer must notify Mimic of any warranty claim for Services during the period the Services are being performed or within 30 days after the conclusion of the Services.Customer’s sole and exclusive remedy and the entire liability of Mimic for its breach of this warranty will be for Mimic, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid attributable to the non-conforming portion of the Services.6.4 Exclusions. The express warranties do not apply if the applicable Solution (i) has been modified, except by Mimic or by Customer or a third party at Mimic’s written direction, (ii) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (iii) is non-conforming due solely to a failure to use an applicable Update, (iv) due to causes that are external to the Mimic Solution or otherwise beyond Mimic’s reasonable control, including, without limitation, natural disasters, fire, smoke, water, earthquakes, lightening, electrical power fluctuations or failures, or hardware or software not provided by Mimic.If any part of a Solution references websites, hypertext links, network addresses, or other third-party locations, information, or activities, such information is provided as a convenience only.6.4 No Guarantee. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT MIMIC DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, EXTRACT OR DISCOVER ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, OR MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD MIMIC RESPONSIBLE THEREFOR. CUSTOMER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT INCIDENT DATA WHICH THE SOLUTIONS PROVIDE AND/OR ATTRIBUTIONS WHICH THE SOLUTIONS MAKE, MAY BE UNRELIABLE AND INCOMPLETE; THEREFORE, ALL INCIDENT DATA AND ATTRIBUTED DATA IS PROVIDED AS IS AND WITHOUT GUARANTEE OF COMPLETENESS OR CORRECTNESS, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD MIMIC RESPONSIBLE THEREFOR.6.5 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 6, MIMIC AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MIMIC AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOLUTIONS.EXCEPT AS PROVIDED IN THIS SECTION 6, THERE IS NO WARRANTY THAT THE SOLUTIONS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS.THE SOLUTIONS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION.NEITHER ARE THE SOLUTIONS FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE.CUSTOMER AGREES THAT IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE SAFE USE OF A SOLUTION IN ANY APPLICATIONS AND INSTALLATIONS.MIMIC DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES.7. Indemnification
7.1 Mimic’s Obligation. Mimic will (i) defend its Customer against any claim asserted in a legal proceeding by a third party alleging that a Mimic Product infringes a third party’s registered copyrights, misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or infringes such third party’s valid U.S. patent(s) issued as of the Effective Date (a “Claim”) and (ii) subject to Section 8.3, pay any damages finally awarded against Customer for such Claim by a court of competent jurisdiction, or any amount agreed to by Mimic in settlement of such Claim; provided that Customer promptly notifies Mimic of any such Claim in writing (a delay in providing notice does not excuse these obligations unless Mimic is prejudiced by such delay), Mimic is given sole and exclusive control over the defense and settlement of such Claim (however, Mimic will not settle any Claim in a manner that requires Customer to admit fault or attributes liability to Customer without Customer’s prior written consent), and Customer provides all information and cooperation requested by Mimic, at Mimic’ expense, in connection with the defense and settlement of such Claim.7.2 Remedies. If any portion of a Mimic Product becomes, or in Mimic’s opinion is likely to become, the subject of a Claim, Mimic may, at its option, (i) procure for Customer the right to continue using the Product, (ii) replace or modify the Product to make it non-infringing or reduce the likelihood of infringement, such that the replacement or modification provides substantially the functionality of the Product that is replaced or modified, or (iii) terminate this Agreement by providing Customer written notice thereof; provided, however, that if Mimic exercises such termination right, Mimic will refund to Customer a pro-rata portion of the Fees paid by Customer for the Product subject to such Claim (with such pro-ration based on the number of days remaining in the Subscription/Order Term had Mimic not so terminated this Agreement).7.3 Exclusions. Mimic shall have no obligations under this Section to the extent the claim is based upon or directly arises out of: (i) any modification to the applicable Product not made by Mimic or at the writtendirection of Mimic; (ii) any combination or use of the applicable Product with or in any third-party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use and would have been avoided but for such combination or use; (iii) Customer’s continued use of the allegedly infringing Product after being notified by Mimic to cease usage of the allegedly infringing Product due to the infringement claim or after being provided a modified version of the Product by Mimic at no additional cost that is intended to address such alleged infringement, (iv) Customer’s failure to use the Product in accordance with the applicable Documentation;(v) Customer’s use of the Product outside the scope of the rights granted under this Agreement or a signed SOW; and/or (vi) any modification to or use of the Product which is based upon Customer Data or other material provided by Customer to Mimic, to the extent that such claim is based upon such Customer Data or other material .7.4 Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND MIMIC’S ENTIRE LIABILITY, WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INFRINGEMENT OF THAT THIRD PARTY’S INTELLECTUAL PROPERTY.8. Limitation of Liability
8.1 Exclusions to Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE;8.2 Sublimit on Monetary Damages. EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE UNDER SECTION 7 (INDEMNIFICATION); CUSTOMER’S PAYMENT OBLIGATIONS; DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE TO MIMIC FOR THE RELEVANT SOLUTION, DURING THAT SOLUTION’S 12 MONTH SUBSCRIPTION TERM THAT GAVE RISE TO THE CLAIM.THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT.8.3 Total Aggregate Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE, CUMULATIVE, TOTAL LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM, LOSS OR DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED TWO MILLION FIVE HUNDRED THOUSAND DOLLARS, ($2,500,000). THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF TWO OR MORE CLAIMS, LOSSES, DAMAGES OR SUITS WILL NOT ENLARGE THE LIMIT IN THIS SECTION 8.3.8.4 Acknowledgment. THE PARTIES ACKNOWLEDGE THAT THE FEES SPECIFIED IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF ITS LIABILITY AND THE WARRANTY DISCLAIMERS CONTAINED HEREIN.9. Compliance with Laws. Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption, employment and if applicable, the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679, the UK GDPR, or similar privacy laws in any relevant jurisdiction. Customer acknowledges and agrees the Solutions shall not be used, transferred, or otherwise exported or re-exported to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. Mimic represents and warrants that Mimic is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.9.1 Anti-Bribery. In connection with its obligations under this Agreement, Mimic shall comply with all anti-bribery laws and regulations applicable to Mimic.10. Termination. This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein.10.1 Upon delivery of reasonable notice based upon the risk of the situation, Mimic may immediately suspend Customer’s access to, or use of, the Solutions if Mimic reasonably believes that there is a significant threat to the security, integrity, functionality, or availability of the Solutions or any content, data, or applications in the Solutions.10.2 Any party (“Non-defaulting Party”) may terminate this Agreement by delivering written notice of a material breach, with a 30-day cure period, to the other party (“Defaulting Party”), unless the breach is cured within the 30-day cure period.Prior to termination and subject to the terms of this Agreement, Customer shall have the right to access and download Customer Data available per the Customer’s purchased Products and data retention period in a manner and in a format supported by the Products.10.3 This Agreement may also be terminated forthwith by any Non-defaulting Party by giving notice in writing to the Defaulting Party if at any time the Defaulting Party shall become insolvent or shall go into dissolution or into liquidation (except for a voluntary liquidation for the purposes of reconstruction or amalgamation upon terms previously approved in writing by the Non-defaulting Party) or a receiver or examiner is appointed to the Defaulting Party or upon the happening of a like event whether at the direction of an appropriate regulatory agency or a court of competent jurisdiction or otherwise the Defaulting Party breaches any laws or regulations or becomes subject to a lawsuit, regulatory action, government investigation, allegation, demand, claim, request, inquiry, sanction, arbitration or proceeding that, in each case the Non-defaulting Party reasonably determines could cause the Non-defaulting Party reputational harm.10.4 Upon termination of this Agreement for any reason: (a) all Customer’s access and use rights granted in this Agreement will terminate; (b) Customer must promptly cease all use of Solutions and de-install all Software installed on Customer’s Endpoints; and (c) save as otherwise provided in an Addendum, Customer Data will be deleted in accordance with the data retention period specified on the Order or in the Documentation and Section 5.4 Confidentiality; Destruction). Sections 1, 5, 7, 8, 10, 11 shall survive expiration or termination of this Agreement for any reason.11. General
11.1 Entire Agreement. This Agreement (together with all addendums, Orders and exhibits) constitutes the entire agreement between Customer and Mimic concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-Mimic document and no such terms included in any such portal or other non-Mimic document shall apply to the Agreement or Solutions ordered. Mimic’s obligations and liabilities to Customer for Orders through a Reseller are subject to, and are governed by, this Agreement. Mimic is not obligated under any Reseller's agreement with Customer unless an authorized signer of Mimic executes such agreement.This Agreement shall not be construed for or against any party to this Agreement because that party or that party’s legal representative drafted any of its provisions.11.2 Authority. The undersigned each hereby represent and warrant that they have full legal capacity, authority and power to enter into the Agreement on behalf of their Party, and to bind their respective Party to the terms and conditions herein.11.3 Non-Solicit. Commencing on the Effective Date and continuing for a period of twelve (12) months after the last-to-expire or terminate Subscription/Order Term, neither party (the “Prohibited Party”) will, directly or indirectly, solicit, attempt to solicit or encourage any of the other Party’s employees, contractors or advisors to (i) terminate his or her employment with the other party, (ii) cease providing services to the other party or (iii) enter into an employment, consulting or other professional relationship with any other entity or person (including the Prohibited Party). For purposes of the foregoing, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, will not be construed as a solicitation, and the hiring of any such person who freely responds thereto will not be a breach of the foregoing.11.4 Assignment. Neither Party may assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party. Notwithstanding the foregoing, Mimic may assign this Agreement without prior consent in the event of a merger, acquisition, or sale of substantially all Mimic’s assets, provided the assignee agrees to be bound by the terms of this Agreement. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and permitted assigns.11.5 Governing Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, excluding its conflicts-of-law principles.The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.Venue and Jurisdiction is proper in any Court of competent subject matter jurisdiction located in Wilmington, Delaware, and each party consents to personal jurisdiction therein.Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights.11.6 Independent Contractors; No Third-Party Rights. The parties are independent contractors.This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.11.7 Waiver, Severability & Amendments. The waiver by either party of a breach or default by the other party of any provision of this Agreement will not be construed as a waiver by such party of any succeeding breach or default by the other party in the same or other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible in order to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.11.8 Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, epidemic, pandemic, quarantine, or any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the control of the party and which could not have been prevented with reasonable care.The party experiencing a force majeure event shall use commercially reasonable efforts to provide notice of such to the other party.11.9 Notices. All legal notices will be given in writing to the addresses in the first introductory paragraph of this Agreement and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail).For clarity, purchase orders, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures. Notices to Mimic should be directed to:Mimic Networks, Inc.Attn: LegalP.O. Box 722Palo Alto, CA 94302 USAwith a copy to legal@mimic.com11.10 Order of Precedence. In the event of any conflict of terms between this Agreement, an Addendum, and the applicable Order, unless otherwise expressly provided herein, the order of precedence will be the following: (a) the applicable Order, provided it is signed by Mimic and subject to Section 2.2 (b) a signed Addendum, (c) this Agreement.