HomeMy WebLinkAboutDarktrace Master Customer Agreement for Enterprise Immune SoftwareCustomer Name: City of Meridian Product Order Form Ref:
Shipping Address: 33 E Broadway Ave, Meridian, ID 83642
33 E Broadway Ave, Meridian, ID 83642
Dave Tiede
Date Prepared:
Invoice Address: Expiry Date:
23378-201909-19-612180-AK
2019/09/19
2019/10/01
Attn:
Email: dtiede@meridiancity.org
Darktrace Offering:
Line Product/Services Description Product Code QTY Term Annual Customer Price Extended Customer Price Item (months) (USD) (USD)
Enterprise Immune System DCIP-EIS 60 20,300 101,500
comprising:
Small Appliance DCIP-S 3
Medium Appliance DCIP-M 1 1 Antigena Network Software DC IP-ANTI 1
Term license commencing on 2019/10/01 ("Commencement Date")
Installation Services
Standard Support Services
2 Threat Visualizer Training, Virtual Instructor - Public DC IP-TV-PT 1 --Included
Total 101,500
Extended Customer Price if Product Order Form is executed after 1st October 2019 132,000
Terms and Conditions:
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By signing this Product Order Form ("Product Order Form"), issuing a purchase order referencing this Product Order Form or otherwise accessing or using
the Offering, the Customer's use of the Offering shall be subject to the Darktrace Master Customer Agreement included in the Appliance, which can also
found at: https:/ /www.darktrace.com/resources/legal-online-terms.pdf ("Agreement").
Provided Customer is current in its payment obligations to Darktrace, Customer shall have the right to terminate the licenses conveyed by this Product
Order Form upon each anniversary of the Commencement Date, solely in the event Customer fails to receive sufficient appropriation of funds or
authorization for the expenditure of sufficient funds to provide for the continuation of such licenses. In such circumstance, Customer will provide as much
notice as possible and in any case at least ten (1 0) days' written notice to fingroup@darktrace.com prior to such anniversary of the Commencement Date,
and in such notice Customer shall certify and warrant in writing that sufficient funds have not been appropriated or authorized to continue the Offering and
Agreement. If Customer does not provide the foregoing notice, (a) this Product Order Form will continue to be effective; and (b) Darktrace shall be entitled
to invoice Customer in accordance with the terms of this Product Order Form.
The Appliance(s) are for use with respect to the Customer's applicable bandwidth throughput, number of connected devices and connections per minute
as set out in the applicable Product Data Sheet (https://darktrace.com/resources/contract-data-sheets.zip). The Software is limited to one thousand
(1,000) Devices in use on the Customer network (the "Device Limit"). For the purposes of this calculation a "Device" is a unique Internet Protocol address
(IP address), tied to a piece of equipment, apparatus, or instrument, virtual or physical; that is monitored, modelled and visible in the Threat Visualizer
within a given seven (7) day time frame. Should the Device Limit be exceeded, an additional Fee equal to USD $1.00 per Device, per month shall be payable
for each Device in excess of the Device Limit..
Fees are exclusive of any applicable sales tax, goods and services tax, withholding tax or VAT. Fees will be invoiced annually in advance from the
Commencement Date. Payment terms Net 30.
If Customer requires a purchase order, it must be sent at the time of acceptance of this Product Order Form and be for the full contract value. If it is not
received, Darktrace shall be entitled to invoice without it.
Acceptance of this Product Order Form is expressly limited to the terms of Darktrace's offer. Once accepted, the terms and conditions of this Product
Order Form and the Agreement will be the complete and exclusive statement of the agreement between the parties. Any modifications proposed by
Customer are expressly rejected by Darktrace and shall not become part of the Agreement in the absence of Darktrace's written acceptance.
This Product Order Form may be executed in any number of counterparts and by different parties in separate counterparts. Each counterpart when so
executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. Transmission of the executed
counterpart of this Product Order Form by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart.
In consideration for the use of the Appliance and the licences granted herein, Customer agrees that Darktrace shall be permitted to (a) identify the
Customer as a customer and to use the Customer's name in connection with proposals to prospective customers, (b) display Customer's logo on
Darktrace's web site, and (c) otherwise refer to Customer in print or electronic form solely for marketing or reference purposes, including in a joint press
release(s), Customer also agrees to (d) participate in a case study for the purposes of marketing and promotion, (e) participate in and speak at least one
Darktrace seminar, dinner, or roundtable event, and (f) provide a reasonable number of reference calls on demand.
*Final contract shall be subject to additional terms and conditions of the NASPO contract vehicle and licensed partner SHI International Corp.*
*THE TERMS AND CONDITIONS HEREIN DO NOT CONSTITUTE A FORMAL OFFER, AND ARE BEING PROVIDED FOR INFORMATIONAL PURPOSES ONLY.*
Meridian City Council Meeting Agenda September 24, 2019 – Page 159 of 257
MULTI-YEAR CONTRACTS / FISCAL YEAR FUNDING CLAUSE
Continuation of this contract past the initial fiscal year for which it was approved is subject
to the appropriation of funds by City Council. Any contract that requires this additional
City Council Approval shall automatically terminate if those funds are not appropriated in
subsequent fiscal years as thereby affected and Contractor will relieve CITY of any further
obligation. The date of termination is the last day of the fiscal year (September 30 th ) for
which money was last appropriated, or the date provided in the termination clause of the
procurement contract, whichever is earlier.
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DARKTRACE MASTER CUSTOMER AGREEMENT
IMPORTANT - READ CAREFULLY:
Please read the following legally binding Darktrace Master Customer Agreement (“Agreement”) between Darktrace Limited or any
of its Affiliates (“Darktrace”) and the person or entity which has been granted license rights under this Agreement (“Customer”)
carefully. THIS AGREEMENT SHALL APPLY TO ANY QUOTE, ORDER, ORDER ACKNOWLEDGEMENT, AND INVOICE, AND ANY SALE,
LICENSE, OR DELIVERY OF ANY PRODUCTS OR SERVICES BY DARKTRACE. By selecting the accept option, breaking the seal on the
package, or installing, or otherwise accessing or using the Darktrace Offering (as defined herein), Customer acknowledges that
Customer has read, understands, and agrees to be bound by the terms and conditions of this Agreement. Where a reseller, service
provider, consultant, contractor or other party downloads, installs or otherwise uses the Products on Customer’s behalf, such party
will be deemed to be Customer’s agent and Customer will be deemed to have accepted all of the terms and conditions of this
Agreement as if Customer had directly downloaded, installed or used the Products.
If Customer does not agree with the terms and conditions of this Agreement, Customer is not authorised to install the Products or
otherwise use the Offering for any purpose whatsoever. If Customer returns the unused Products and all accompanying items in
their original condition and packaging within twenty-one (21) calendar days of delivery by Darktrace, together with proof of
purchase, Customer may receive a full refund of any Fees paid.
Darktrace and Customer may be collectively referred to as “Parties” and/or individually as “Party”.
The Agreement is comprised of the following documents:
1. This Agreement and its appendices;
2. The Product Order Form (commercial terms schedule) as defined below;
3. Any documents incorporated by reference.
RECITALS
Whereas, Darktrace is the supplier of the Darktrace Product(s) which are more fully described in the applicable quotation or
ordering document provided by Darktrace or its authorised reseller, as applicable, and accepted by Darktrace, which identifies the
Products and any Services ordered by Customer from Darktrace or its authorised reseller, as applicable, the term, the quantity, the
applicable fees (if any), together with any other specifications or requirements and any other restrictions (if any) (“Product Order
Form”).
Whereas, the Customer is interested in using the Offering for its internal use and Darktrace has agreed to Customer’s use of the
Offering on the terms of this Agreement.
Now therefore, in consideration of the mutual covenants and the payment of Fees described herein, the Parties agree as follows:
1. DEFINITIONS
The defined terms are as set forth in Appendix 1 to this Agreement.
2. EVALUATIONS, TECHNICAL PREVIEWS, BETA TESTING AND FREE TOOLS
2.1. If Darktrace permits the Customer to conduct an evaluation of a commercially available Product (the “Evaluation”), the Customer
may use the Product free of charge for evaluation purposes only for a maximum of four (4) weeks, or such other duration as
specified by Darktrace in writing at its sole discretion (the “Evaluation Period”). If the Customer does not purchase the Product,
the rights to use the Product will terminate immediately upon expiry of the Evaluation Period.
2.2. If the Evaluation relates to Hardware, all right, title and interest in the Products will remain with Darktrace and the Products must
be returned at the end of the Evaluation Period. Customer must keep the Products free from liens, shall be responsible for any
damage to such Products during the Evaluation Period (reasonable wear and tear excepted) and shall carry insurance coverage
(all risks), in an amount equal to the full replacement value of such Products. Customer must promptly return the Hardware to
the return location indicated by Darktrace, securely and properly packaged, with carriage (and insurance at Customer’s option)
prepaid upon the expiry of the Evaluation Period. Darktrace will work with Customer to remove any and all of Customer’s data
from the Hardware prior to return. If Customer wishes to retain the hard disk drives, these will be chargeable at Darktrace’s
then-current list price. If Customer fails to return the Hardware upon expiry of the Evaluation Period, Darktrace may invoice, and
Customer shall pay, for the Offering at list price for the extension period. DARKTRACE SHALL NOT BE RESPONSIBLE FOR
MAINTAINING OR PROTECTING ANY CONFIGURATION SETTINGS OR DATA FOUND ON THE RETURNED HARDWARE OR
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V16.10.2017 MCA SHRINKWRAP 2
COMPONENT PART OF THE HARDWARE AND IT IS CUSTOMER'S SOLE RESPONSIBILITY TO DELETE ANY SUCH INFORMATION PRIOR
TO RETURN.
2.3. If Darktrace provides Customer with a Product for technical preview or beta testing purposes (a “Preview Product”), Customer
may use the Preview Product for evaluation purposes, in a non-production test environment only, for the period specified by
Darktrace (the “Test Period”). Customer shall test the Preview Product in accordance with any conditions specified in the readme
file for the software and/or any accompanying Documentation and shall gather and report test data, feedback, comments and
suggestions to Darktrace. The Customer’s right to use the Preview Product shall terminate upon expiry of the Test Period.
Darktrace does not warrant that it will release a commercial version of the Preview Product, or that a commercial version will
contain the same or similar features as the Preview Product.
2.4. Clause 9 and Clause 12 shall not apply to Evaluation Products and Preview Products. EVALUATION PRODUCTS AND PREVIEW
PRODUCTS ARE PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (i) DARKTRACE MAKES NO
WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE WITH RELATION TO SUCH PRODUCTS, (ii) IN NO EVENT SHALL DARKTRACE BE LIABLE TO CUSTOMER OR TO THOSE
CLAIMING THROUGH CUSTOMER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF
ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, LOSS OF OR
CORRUPTION OF INFORMATION OR DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT (INCLUDING
WITHOUT LIMITATION NEGLIGENCE), EVEN IF DARKTRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2.5. IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN CLAUSE 2.4 ABOVE IS HELD TO BE INVALID
FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND DARKTRACE BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE
THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED TEN
THOUSAND POUNDS STERLING (£10,000).
3. OFFERING; ORDER PROCESS
3.1. Subject to these terms and conditions, Darktrace agrees to provide to the Customer and Customer agrees to be provided by
Darktrace: (i) the number and type of Products; (ii) the Support Services; and (iii) the Professional Services, if any, as set out in a
Product Order Form. All Product Order Forms must be in writing and reference this Agreement to be valid. All Product Order
Forms shall be governed by this Agreement and any different or additional terms presented with or in any communication,
including but not limited to, the Customer’s purchase order, are deemed null and void and of no effect unless the additional
terms are agreed upon by the Parties in writing prior to acceptance of that Product Order Form.
3.2. Darktrace acknowledges and agrees that the Offering is provided for the benefit of Affiliates of Customer from time to time.
Accordingly, such Customer Affiliates shall be entitled to utilise the Offering in the same way as Customer under the terms of this
Agreement. To the extent that any such Customer Affiliate utilises the Offering in accordance with this Clause 3.2, Customer
(acting as agent and trustee of the relevant Customer Affiliate) shall be entitled to enforce any term of this Agreement and
recover all losses suffered by such Customer Affiliate pursuant to this Agreement as though Customer had suffered such loss
itself, provided that in no event may Customer recover twice in respect of the same loss.
4. HARDWARE
4.1. Hardware Products. Subject to Clause 2.2, Darktrace shall sell to the Customer, and Customer shall purchase from Darktrace, the
Hardware element of the Products, subject to, and in accordance with, the terms of this Agreement. Unless otherwise agreed in
a Product Order Form, the cost of the Hardware is included in the Fees. With respect to Software delivered on Hardware,
Customer shall be granted a license to the Software pursuant to Clause 5 below to use the Software solely in conjunction with
such Hardware (and not separately or apart from the Hardware) and in accordance with the applicable Documentation. Customer
acknowledges that, with respect to Software which is delivered on Hardware, the Hardware is provided hereunder solely as the
medium for delivery and operation of the Software and, unless otherwise agreed by the Parties in writing, Darktrace at its option
may provide Hardware that is either new or refurbished. Where the Hardware is refurbished, Darktrace warrants that the
Hardware shall perform as if it were new. Customer acknowledges and agrees that Customer owns only the Hardware (or media,
if applicable) on which the Software is installed and that Darktrace licenses, and does not sell, any Software and nothing in this
Clause 4 will operate to transfer or assign ownership of the Software or any of Darktrace’s other Intellectual Property Rights (or
those of its licensors) to Customer. If Customer sells, leases, lends, rents, distributes or otherwise transfers any Hardware to any
third party, or if Darktrace terminates this Agreement, then Customer will erase all Software from such Hardware.
4.2. Delivery. Darktrace will use commercially reasonable efforts to ship the Products on the agreed delivery dates (in partial or full
shipments); provided, however, that Darktrace shall in no event be liable for any delay in delivery or for failure to give notice of
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V16.10.2017 MCA SHRINKWRAP 3
delay. Without liability to any person and without prejudice to any other remedy, Darktrace may withhold or delay shipment
of any Order if Customer is late in payment or is otherwise in default under this Agreement. Darktrace will deliver the Hardware
FCA (Incoterms 2010) to the agreed Customer sites. In the absence of specific shipping instructions from Customer, Darktrace
will ship by the method it deems most advantageous. Unless otherwise agreed, Customer shall pay and be exclusively liable for
all costs associated with shipping and delivery including without limitation, freight, shipping, customs charges and expenses,
cost of special packaging or handling and insurance premiums incurred by Darktrace in connection with the shipment of
Products to Customer. Darktrace will identify itself in all documents related to the shipment of Products as the exporter of
record from the United Kingdom, and the Customer (or its agent, as applicable) as the importer of record into the country of
delivery. Darktrace must provide the Customer with reasonable assistance and support (including technical advice and
information) to this end. Title and (without prejudice to Darktrace’s obligations in respect of installation Services and Support
Services) risk in the Hardware will pass to Customer upon delivery. Acknowledgement of receipt of the Hardware by Customer
will not prevent Customer from subsequently rejecting the Hardware if it is discovered that the Hardware does not meet the
specification set out in the Documentation or other requirements of this Agreement, or if a fault or problem is discovered with
any of the Hardware, after Customer has received the Hardware, in a manner preventing or impairing Customer’s receipt of the
Services (each, a “Hardware Defect”). As Customer’s sole and exclusive remedy, any Hardware Defect will be addressed during
installation and/or through the Support Services, as applicable. Customer must provide written notice to Darktrace or its
authorised reseller within five (5) business days of delivery of the Products of any non-conformity with the applicable Datasheet.
5. LICENSE GRANT FOR THE SOFTWARE AND RESTRICTIONS
5.1. License Grant for Software. In consideration of the Fees paid by the Customer to Darktrace, and subject to the terms and
conditions of this Agreement and the Product Order Form, Darktrace grants to Customer a non-exclusive, non-transferable, non-
sub licensable, license for the Term to: (i) install and use the Products in Customer’s Site or an Outsource Provider’s Site(s)
referenced in the Product Order Form for Customer’s or its Affiliate’s internal business purpose (provided that neither Customer
nor its Affiliates may use the Products or the Services as a commercial product or for the benefit of an unaffiliated third party),
relating specifically to the integrity of Customer’s information technology and any other restrictions identified in a Product Order
Form; (ii) use the Documentation to support the use of the Services; (iii) make a commercially reasonable number of copies of
the Documentation; provided, however, that Customer reproduces and includes all of Darktrace's and its suppliers' copyright
notices and proprietary legends on each such copy; and (iv) use Reports, and reproduce and distribute those Reports, internally
solely for Customer’s or its Affiliate’s own business purposes.
5.2. License Restrictions. All Software is licensed, not sold. The restrictions in this Agreement represent conditions of the Customer’s
license. In addition to the Product Specific Terms, Customer specifically agrees not to: (i) sub-license, rent, sell, lease, distribute
or otherwise transfer the Software or any part thereof or use the Offering, or allow the Offering to be used, for timesharing or
service bureau purposes or otherwise use or allow others to use for the benefit of any third party (other than Affiliates of the
Customer); (ii) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code or underlying ideas or
algorithms of the Software and/or Third Party Software (other than the GPL Software) or any portion thereof, except as required
to be permitted by applicable law; (iii) modify, port, translate, localise or create derivative works of the Software, the Third Party
Software, the Documentation and/or Reports; (iv) use the Offering: (a) in violation of any law, statute, ordinance or regulation
applicable to the Customer (including but not limited to the laws and regulations governing publicity or privacy, export/import
control, federal, state and local laws and regulations governing the use of network scanners and related software in all
jurisdictions in which systems are scanned or scanning is controlled, and/or anti-discrimination, in each case that are applicable
to the Customer); or (b) negligently or intentionally or wilfully propagate any virus, worms, Trojan horses or other programming
routine intended to damage any system or data; (v) transmit or provide access to the Offering save as provided in this Agreement;
(vi) remove or modify any acknowledgements, credits or legal notices contained on the Offering or any part thereof; (vii) install
and/or run on the Hardware and software applications other than the Software and Third Party Software installed by Darktrace
on such Hardware; (viii) collect any information from or through the Offering using any automated means (other than Darktrace
approved APIs), including without limitation any script, spider, “screen scraping,” or “database scraping” application or gain or
attempt to gain unpermitted access by any means to any Darktrace computer system, network, or database; and/or (ix) file
copyright or patent applications that include the Offering or any portion thereof. Prior to the disposal of any media or Hardware
containing the Software, Customer shall permanently erase the Software contained therein.
5.3. Outsource Provider. In the event that the Customer has contracted or does contract with any third party service provider(s)
(such as an outsourcer, hosting or collocation service provider or other information technology service provider) for the
performance of information technology functions (each, an “Outsource Provider”), the Customer may permit such Outsource
Providers to exercise all or any portion of the rights granted in Clause 5.1 above solely on Customer’s or its Affiliates’ behalf,
provided that (i) the Outsource Provider shall only use and/or operate the Offering for the Customer’s use subject to terms
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V16.10.2017 MCA SHRINKWRAP 4
and conditions that are consistent with the rights and limitations set forth in this Agreement; and (ii) Customer shall remain
liable for the acts and omissions of the Outsource Provider under this Agreement
5.4. Third Party Software/ Open Source Software. The Customer acknowledges that the Software may contain or be accompanied
by certain Third Party hardware and software products or components (“Third Party Products”) including Open Source Software.
Open Source Software is copyrighted and licensed under the GPL/LGPL and other OSS licenses. Copies of, or references to, those
licenses may be set forth in a Product Order Form, the Third Party Product packaging and/or in a text file, installation file or
folder accompanying the Software. If delivery of source code is required by the applicable license, Customer may obtain the
complete corresponding Open Source Software source code for a period of three years after Darktrace’s last shipment of the
Software, by sending a request to: Legal Department - Open Source Software Request, Darktrace Limited, First Floor, The West
Wing, The Platinum Building, St Johns Innovation Park, Cowley Road, Cambridge, CB4 0DS, United Kingdom.
6. SERVICES.
6.1. Installation. Darktrace shall conduct its standard installation and test procedures in accordance with the applicable datasheet,
to confirm completion of the installation of the Products on the Customer’s or it’s Outsource Provider’s Site (“Installation
Services”).
6.2. Support Services. If Support Services are included as part of the Offering as agreed in a Product Order Form, Darktrace’s support
services will be described in the applicable datasheet, which covers the description of Darktrace’s Support Services offering,
eligibility requirements, service limitations and Customer responsibilities (“Support Services”). For the duration of any period
as agreed by the Parties in a Product Order Form (if any), Darktrace cyber analysts work with the Customer’s nominated security
personnel in operating the Darktrace Threat Visualizer, and provide periodic Reports, if applicable.
6.3. Call Home. Darktrace’s “Call Home” feature is critical for certain Services, including Support Services. Darktrace will limit its
access solely to the extent relevant to Darktrace's provision of the Services, and such remote access shall be subject to
Customer’s applicable policies and procedures provided to Darktrace in writing in advance. The Call Home connection remains
within Customer’s complete control and is initiated by the on-site Products. It can be initiated, terminated and audited at any
time by the Customer.
6.4. Professional Services. Darktrace will deliver any ordered Services as described in the applicable Product Order Form. Darktrace’s
ability to deliver Services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of
any information from Customer needed to deliver the Services. The acceptance process (if any) will be described in the
applicable Product Order Form and will apply only to the deliverables provided in connection with the specific Professional
Services as described in the Product Order Form, subject to the acceptance process, and shall not apply to other products or
services to be provided by Darktrace.
6.5. DISCLAIMER. FOR THE AVOIDANCE OF DOUBT, UNLESS EXPRESSLY AGREED, THE SERVICES DO NOT INCLUDE THE MONITORING,
INTERPRETATION AND / OR CORRECTIVE ACTION WITH RESPECT TO ANY ALERTS GENERATED BY THE OFFERING. NO ADVICE,
REPORT, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM DARKTRACE OR THROUGH OR
FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS
THAT: (A) ANY OUTCOME OF THE SERVICES INVOLVING SECURITY ASSESSMENT IS LIMITED TO A POINT-IN-TIME EXAMINATION
OF CUSTOMER SECURITY STATUS, AND; (B) THE SERVICES DO NOT CONSTITUTE ANY FORM OF REPRESENTATION, WARRANTY
OR GUARANTEE THAT CUSTOMER’S SYSTEMS ARE SECURE FROM EVERY FORM OF ATTACK, EVEN IF FULLY IMPLEMENTED. THE
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT ALL ANOMALIES / INTRUSIONS MAY NOT BE REPORTED AND OR
PREVENTED.
7. FEES, PAYMENT AND TAXES.
7.1. Fees. Fees will be as quoted in writing by Darktrace, or its authorised reseller, in the Product Order Form. No refunds will be
made except as provided in Clause 9 “Warranties” and Clause 10.3 “Intellectual Property Rights Infringement” set forth herein.
Fees are exclusive of sales and use taxes assessed by a taxing authority in the jurisdiction in which Customer is physically located
and takes delivery of the Products or Services, and is exclusive of duties and shipping and handling fees, unless otherwise agreed,
which will be the responsibility of the Customer. Should Customer be required under any law or regulation of any governmental
entity or authority outside of the United Kingdom, to withhold or deduct any portion of the payments due to Darktrace, then
Customer shall increase the sum payable to Darktrace by the amount necessary to yield to Darktrace an amount equal to the
sum it would have received had no withholdings or deductions been made. For any Professional Services ordered by the
Customer, Darktrace will be entitled to charge separately for reasonable out-of-pocket expenses, such as travel expenses
incurred in providing such Services and hardware replacement costs not provided under the Support Services.
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V16.10.2017 MCA SHRINKWRAP 5
7.2. Invoices and Payment. The Customer will be invoiced the Fees from the commencement date set out in the Product Order Form
or if not expressly stated in a Product Order Form, Fees will be invoiced on the date of delivery of the first Product (the
“Commencement Date”). Any other charges (including, without limitation, Services fees and out of pocket expenses) will be
invoiced monthly in arrears. Invoicing will occur via email. Unless otherwise agreed in a Product Order Form, Customer agrees
to pay all undisputed amounts within 30 days of Customer’s receipt of the applicable invoice by direct bank / wire transfer in
accordance with the instructions on the invoice, and any bank charges assessed on Customer by Customer’s bank. FOR THE
AVOIDANCE OF DOUBT, UNLESS PAYMENTS ARE MADE BY WIRE TRANSFER, THEY MUST BE MADE ANNUALLY IN ADVANCE.
Darktrace may suspend or cancel performance of open orders or Services if Customer fails to make payments when due,
reserving all other rights and remedies as may be provided by law. Darktrace may impose late charges on overdue payments at
a rate equal to two percent (2%) per annum above the official dealing rate of the Bank of England, calculated from the date
payment was due until the date payment is made and all reasonable expenses incurred in collection, including legal fees.
7.3. Lapsed Fees. If, during the Term, Customer has lapsed in the payment of Fees due hereunder, then prior to recommencement
of the Services by Darktrace, Customer will be responsible for paying all fees associated with the Offering from the date that
such Service was stopped through to the then-current date.
8. INTELLECTUAL PROPERTY; OWNERSHIP
8.1. Intellectual Property. Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or
otherwise, to the other’s Intellectual Property. Darktrace and/or its suppliers retain all right, title and interest to the Offering
and related Documentation and reserve all right, title, and interest in and to the Offering (excluding any Third Party Software),
and the Documentation, and all copies thereof including all enhancements, error correction, new releases, updates,
derivations, and modifications thereto including, but not limited to, ownership of all Intellectual Property rights, not expressly
granted to Customer (collectively, “Darktrace Intellectual Property”). Customer agrees to inform Darktrace promptly of any
infringement or other improper action with respect to the Darktrace Intellectual Property that comes to Customer’s attention.
9. WARRANTIES
9.1. Hardware Warranty. Darktrace warrants to Customer that during the three (3) year period following the delivery of the
Products, the Hardware shall perform in accordance with the applicable Documentation.
9.2. Software Warranty. Darktrace warrants to Customer that during a period of ninety (90) days from the delivery of the Products,
the Software will perform materially in accordance with the applicable Documentation.
9.3 Services Warranty. Darktrace warrants to the Customer that all Services will be performed with all reasonable care, skill and
diligence in accordance with generally recognised commercial practices and standards.
9.4 Exceptions. The warranties contained in Clause 9.1 “Hardware Warranty” and Clause 9.2 “Software Warranty” of this
Agreement shall not apply if: (i) Customer’s use of the Offering is not in accordance with this Agreement; (ii) Customer fails to
follow Darktrace’s environmental, installation, operation or maintenance instructions or procedures in the Documentation;
(iii) such Products have been subject to Customer (or its agent’s) abuse, negligence, improper storage, servicing or operation
of the Products(s) (including without limitation use with incompatible equipment), reasonable wear and tear excepted; (iv)
the Products have been modified, repaired or improperly installed other than by Darktrace or any contractor or subcontractor
of Darktrace; (v) Customer (or its agent) has failed to implement, or to allow Darktrace or its agents to implement, any
corrections or modifications to the Products made available to Customer by Darktrace; or (vi) Customer (or its agent) has
combined the Products with other software, services, or products that are not provided, by Darktrace or not otherwise
specified in the Documentation, and, but for such combination, the breach of warranty would have been avoided.
9.5 Remedies. If during the applicable warranty period contained in Clause 9.1 “Hardware Warranty” or Clause 9.2 “Software
Warranty”: (i) Darktrace is notified promptly in writing upon discovery of an error in any of the Products, including a detailed
description of such alleged error; and (ii) the Darktrace inspections and tests determine that the Products contain errors and
have not been subjected to any of the conditions set forth in Clause 9.4, then, as Darktrace’s entire liability and Customer’s
sole remedy for such breach of warranty, Darktrace shall (at Darktrace’s option and sole expense) correct, repair or replace
the Products, within a reasonable time or provide or authorise a refund of the Fees paid for the Offering following the return
of the Products to Darktrace and the Agreement will terminate. Any items provided as replacement under the terms of this
warranty will be warranted for the remainder of the original warranty period. Darktrace will pay for, and will bear all risk of
loss of or damage to, the return shipment of the product to Darktrace and the shipment of repaired or replaced products to
Customer. Customer agrees to provide prompt notice of any failure under Clause 9.3 “Services Warranty” and Darktrace will
re-perform any service that fails to meet the warranted standard.
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9.6 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, NEITHER DARKTRACE NOR ANY OF ITS
THIRD-PARTY LICENSORS AND SUPPLIERS MAKE ANY WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF
ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO ANY SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF
PERFORMANCE, DEALING, USAGE OR TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO A PARTY AND SUCH PARTY MAY HAVE OTHER LEGAL RIGHTS
THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS. DARKTRACE DOES NOT WARRANT THAT THE OPERATION OF THE
OFFERING WILL BE ERROR-FREE OR UNINTERRUPTED.
10. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT INDEMNITY.
10.1. Darktrace Indemnity. Darktrace will indemnify and defend Customer, Customer’s Affiliates, and their respective officers,
directors, employees, agents and representatives (and any successors and assigns of the foregoing) (collectively, the
“Customer Indemnitees”) against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees)
arising out of a third party claim that the Software provided or made available by Darktrace under this Agreement (or any
portion thereof), or its receipt, possession or use by any Customer Indemnitee, infringes a European or U.S. patent or any
copyright, or misappropriates any third party trade secrets. The indemnification obligations of Darktrace shall be subject to
the Customer: (i) notifying Darktrace in writing within twenty (20) days of receiving notice of any threat or claim of such action;
(ii) giving Darktrace exclusive control and authority over the defence or settlement of such action (provided that: (A) any
settlement does not entail an admission of fault or guilt by any Customer Indemnitee; and (B) the settlement includes, as an
unconditional term, the claimant’s or the plaintiff’s release of the Customer Indemnitees from all liability in respect of the
claim); (iii) not entering into any settlement or compromise of any such action without Darktrace’s prior written consent; and
(iv) providing reasonable assistance requested by Darktrace at Darktrace’s expense. The Customer may join in the defence
with its own counsel at its own expense. The Customer shall be obliged to mitigate its losses insofar as is reasonable in the
circumstances.
10.2. Exclusions. The obligations set forth in Clause 10.1 do not apply to the extent that a third party claim is caused by, or results
from: (a) Customer’s combination or use of the Software that is the subject of the claim with other software, services, or
products that are not provided by Darktrace, if the claim would have been avoided by the non-combined or independent use
of the Software that is the subject of the claim; (b) modification of the Software that is the subject of the claim by anyone
other than Darktrace or any contractor or subcontractor of Darktrace, if the third party claim would have been avoided by use
of the unmodified Offering or other intellectual property that is the subject of the claim; (c) Customer’s continued allegedly
infringing activity after being notified thereof and being provided with modifications that would have avoided the alleged
infringement (which Darktrace shall use commercially reasonable efforts to have substantially preserve the utility and
functionality of the Offering or other intellectual property that is the subject of the claim); (d) Customer’s use of the Software
that is the subject of the claim in a manner not in accordance with this Agreement or the Documentation; or (e) use of other
than Darktrace’s most current release of the Software that is the subject of the claim if the third party claim would have been
avoided by use of the most current release or revision release or revision.
10.3. Remedies. If Darktrace reasonably believes the Software infringes a third party’s Intellectual Property Rights, then Darktrace
will, at no additional cost to the Customer: (a) procure for Customer the right to continue to use the Software; (b) replace the
Software; or (c) modify the Software to avoid the alleged infringement. If none of the options in the previous sentence are
commercially reasonable, Darktrace may terminate the license for the allegedly infringing Software and refund a pro rata
refund of the Fees paid by Customer through the date a third party claim occurs for the allegedly infringing Software,
whereupon this Agreement shall automatically terminate.
10.4. THIS CLAUSE 10 IS A COMPLETE STATEMENT OF THE CUSTOMER’S REMEDIES FOR THIRD PARTY CLAIMS FOR INFRINGEMENT
AS DESCRIBED IN CLAUSE 10.1.
11. CUSTOMER DATA; CUSTOMER UNDERTAKINGS AND INDEMNITY.
11.1. Customer Data; License Grant. Customer shall own all right, title and interest in and to the Customer Data and, for the
avoidance of doubt, to the extent such Customer Data is included in a Report, actual content of the Report. For any Customer
Data stored by the Software, to the extent required to provide the Services, Customer grants to Darktrace a limited, and non-
exclusive license to access and use the Customer Data only to the extent necessary for Darktrace to perform the Services. In
the event that Darktrace needs to access the Customer Data to provide Reports, respond to any technical problems, queries,
or requests from Customer, Customer shall ensure that (subject to Darktrace’s compliance with the confidentiality, data
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protections and other requirements in this Agreement), that it is permitted to do so in accordance with applicable laws,
regulations and international accords, treaties, or accords including, without limitation, applicable Data Privacy Laws.
Customer is solely responsible for its use of the Offering and the activities of its users and for the accuracy, integrity, legality,
reliability, and appropriateness of all Customer Data. For the avoidance of doubt, Darktrace and its Affiliates do not provide
backup services for Customer Data, and Darktrace and its Affiliates may, without notice, delete any Customer Data that may
remain in its/their possession or control. For the avoidance of doubt, Darktrace may utilise the details of any cyber-related
threats occurring in Customer’s network to develop the Offering, provided that Darktrace ensures that any Customer
Confidential Information is removed and Darktrace’s use of such information does not in any way identify Customer or its
users as the source.
11.2. Customer Security Obligations. In using the Offering or authorising its Outsource Provider and third parties to use it on
Customer’s behalf, Customer (and not Darktrace) shall be responsible for establishing, monitoring, and implementing security
practices to control the physical access to and use of the Offering and all Customer Data therein (including Regulated Data) in
accordance with Customer’s own security policies and procedures.
11.3. DATA DISCLAIMER; INDEMNITY. CUSTOMER EXPRESSLY RECOGNISES THAT DARKTRACE DOES NOT CREATE OR ENDORSE ANY
CUSTOMER DATA PROCESSED BY OR USED IN CONJUNCTION WITH THE OFFERING PROVIDED HEREUNDER. CUSTOMER
FURTHER ACKNOWLEDGES AND UNDERTAKES THAT IT SHALL BE SOLELY RESPONSIBLE FOR BACK-UP OF ALL CUSTOMER DATA.
Customer shall, at Customer’s own expense, indemnify, defend and hold Darktrace, its Affiliates, and their respective officers,
directors, employees, agents and representatives (“Darktrace Indemnitees”) harmless from and against all liabilities, damages,
and costs (including settlement costs and reasonable attorneys’ fees) incurred by reason of Darktrace's strict compliance with
the express instructions of Customer with respect to the ownership, custody, processing or disposition of the Customer Data
by Darktrace, as applicable.
12. LIMITATION OF LIABILITY.
12.1. LIMITATION OF LIABILITY. SUBJECT TO THE SUB-CLAUSES OF THIS CLAUSE 12, EACH PARTY’S MAXIMUM LIABILITY TO THE
OTHER PARTY FOR ANY AND ALL LOSS AND/OR DAMAGE (IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF
STATUTORY DUTY, OR OTHERWISE) FOR ANY REASON ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL
NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO DARKTRACE FOR THE OFFERING
DURING THE THEN APPLICABLE TERM, EXCEPT THAT IN RESPECT OF: (i) A BREACH BY EITHER PARTY OF CLAUSE 14
(CONFIDENTIALITY; DATA SECURITY); OR (II) SUBJECT ALWAYS TO CLAUSES 10.2 TO 10.4, DARKTRACE’S OBLIGATIONS TO
INDEMNIFY CUSTOMER IN CLAUSE 10.1; SUCH LIABILITY SHALL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THREE
TIMES (3X) TOTAL FEES PAID OR PAYABLE TO DARKTRACE FOR THE OFFERING DURING THE THEN-APPLICABLE TERM OR (II)
TWO HUNDRED AND FIFTY THOUSAND POUNDS STERLING (£250,000).
12.2. EXCLUSION OF CONSEQUENTIAL DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL
BE LIABLE TO THE OTHER IN TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF STATUTORY DUTY OR
OTHERWISE DUE TO, UNDER AND/OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IF AND TO THE EXTENT
THAT THE LOSS OR DAMAGE IN RESPECT OF WHICH SUCH LIABILITY ARISES OR IS CLAIMED TO ARISE FALLS WITHIN ANY OF
THE FOLLOWING CATEGORIES: LOSS OF PROFITS; LOSS OF REVENUE OR BUSINESS; LOSS OF GOODWILL OR REPUTATION; LOSS
OF OR CORRUPTION OR DAMAGE TO DATA; LOSS OF MANAGEMENT TIME, OR OTHER COMMERCIAL DAMAGES OR LOSSES,
WHETHER OR NOT SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, CORRUPTION OR DAMAGE.
12.3. Exclusions from Limitation of Liability. Nothing will exclude or limit either Party’s liability for death or personal injury arising
from that Party’s wilful misconduct or negligence, liability arising from a Party’s fraudulent misrepresentation, violations of a
Party’s Intellectual Property Rights, or for any other matter in respect of which liability cannot lawfully be limited or excluded.
13. TERM; TERMINATION.
13.1. License Term. This Agreement is effective from the Effective Date and shall remain in force until: (i) expiry of the Evaluation
Period in accordance with Clause 3.1 above (if applicable), or (ii) the end of the Term specified in a Product Order Form, or (iii)
upon renewal of the Term, the expiry date of Customer’s renewed Term as set out in a further executed Product Order Form,
or (iv) terminated in accordance with Clause 13 of this Agreement (“Term”).
13.2. Expiration of the Term. Notwithstanding any provision of this Clause 13, Customer’s right to use, and Customer’s access to,
the Software will automatically terminate on expiry of the Term unless and until Customer renews its license for the Software.
13.3. Termination for Breach. Either Party may terminate this Agreement if: (i) the other Party is in material breach of the Agreement
and fails to cure that breach within 30 days after receipt of written notice; or (ii) the other Party ceases its business operations
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or becomes subject to insolvency proceedings and the proceedings are not dismissed within 30 days.
13.4. Termination or Suspension by Darktrace. Without prejudice to any other right or remedy available to Darktrace:
13.4.1. In addition to a termination under Clause 13.1, Darktrace may terminate and/or suspend Customer’s license grant
and/or suspend, terminate or limit any of Customer’s use of the Offering without liability if a court or other
governmental authority having jurisdiction issues an order prohibiting Darktrace from furnishing the Offering to
Customer. Customer’s obligation to pay Fees during any period of suspension under this Clause 13.4.1 shall also be
suspended.
13.4.2. Additionally, Darktrace may terminate and/or suspend Customer’s license grant and/or suspend, terminate or limit any
of Customer’s use of the Offering without liability if Darktrace provides Customer with written notice that it has a
reasonable suspicion that the Customer is using the Offering: (i) in breach of Clause 5.2, “License Grant and Restrictions”
or Clause 5.3, “Outsource Provider”; or (ii) in a manner that is otherwise unlawful, and Customer does not cure the
condition identified in such notice within five (5) business days.
13.4.3. In the event the Offering is suspended pursuant to this Clause 13.4, Darktrace shall inform Customer of the reasons for
the suspension and shall work with Customer to resolve such issues and re-instate the Offering.
13.5. Effect of Termination. Upon termination in accordance with the above, and in addition to Clause 2.2: (i) the Term and all other
rights and licenses granted by one Party to the other, or any services provided by Darktrace to Customer, will cease
immediately; (ii) upon request, each Party will promptly return or destroy all Confidential Information (including Software) of
the other Party; provided, however, that such Party shall not be obligated to return or destroy such Confidential Information
that is stored on its automated backup systems until the same would be destroyed according to such Party’s normal document
retention schedule or such information that must be retained for compliance with applicable laws, rules or regulations until
the obligation to retain such information has lapsed; provided further that all information so retained shall be subject to the
provisions of Clause 15 (Confidentiality, Data Security) until the same is returned or destroyed; (iii) all undisputed Fees owing
by a Party to the other Party at the date on which termination takes effect will become due and payable; and (iv) Customer
must immediately permanently destroy media containing the Software and Darktrace shall be allowed, after providing
Customer reasonable advance written notice, limited entry to the Customer’s site as necessary to access the Products (or
allowed remote access to the Products), to remove or disable the Software, subject to Customer’s applicable policies and
procedures. If the Agreement terminates, all Product Order Forms will co-terminate.
13.6. Survival. The following provisions shall survive any termination of this Agreement: Clause 2 “Evaluations, Technical Previews,
Beta Testing and Free Tools”; Clause 5 “License Grant For the Software & Restrictions”; Clause 8 “Intellectual Property;
Ownership”; Clause 0 “Disclaimer of Warranties”; Clause 10 “Intellectual Property Rights Infringement Indemnity”; Clause
11.3“Data Disclaimer Indemnity”; Clause 12 “Limitation of Liability”; Clause 13.5 “Effect of Termination”; Clause 13.6
“Survival”; Clause 14 “Confidentiality; Data Security”; Clause 15 “General Provisions.
14. CONFIDENTIALITY; DATA SECURITY.
14.1. Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the subject
matter or circumstances of disclosure would reasonably indicate such treatment and shall include, without limitation, the
Customer Data and Regulated Data (“Confidential Information”). Confidential Information may only be used for the purpose
of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a
need to know such information to support that purpose. The Parties will procure that any of its employees, agents or
contractors to whom Confidential Information is disclosed are bound by contractual obligations equivalent to those in this
Clause 14.1. Confidential information will be protected using a reasonable degree of care to prevent unauthorised use or
disclosure for five (5) years from the date of receipt or (if longer) for such period as the information remains confidential.
These obligations do not cover information that: (i) was known or becomes known to the receiving Party without obligation
of confidentiality, provided that (A) such recipient has no knowledge that such information is subject to a confidentiality
agreement and (B) such information is not of a type or character that a reasonable person would have regarded it as
confidential; (ii) is independently developed by the receiving Party without violating the disclosing Party’s rights; (iii) is or
becomes publicly known (other than through unauthorised disclosure by or through a Party); (iv) is disclosed by the owner of
such information to a third party free of any obligation of confidentiality; or (v) where disclosure is required by law or a
governmental agency provided that, to the extent lawful so to do, the receiving Party shall notify the disclosing Party of the
request giving it reasonable opportunity to respond, and cooperate with the disclosing Party’s reasonable, lawful efforts to
resist, limit or delay disclosure at the disclosing Party’s expense, and provided that except for making such required disclosure,
such information shall otherwise continue to be Confidential Information. Additionally, without limiting Customer’s obligation
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to maintain the confidentiality of Darktrace’s Intellectual Property, these obligations do not require Customer to treat as
confidential information a Report or any other information specifically about Customer’s Data or Customer network systems,
including any threats thereto or analysis thereof.
14.2. The Parties acknowledge that the Offering may be used to process information regulated by applicable privacy or data
protection laws. Solely to the extent relevant to Darktrace’s provision of Services, Darktrace shall act only on the instructions
of Customer in processing any Regulated Data as a data processor. Customer hereby instructs Darktrace to take such steps in
the processing of Regulated Data as are reasonably necessary to the performance of Darktrace’s obligations under this
Agreement, and agrees that such instructions constitute its full and complete instructions as to the means by which Regulated
Data shall be processed by Darktrace. Each Party agrees that it shall comply with the Data Privacy Laws in exercising its rights
and performing its obligations under this Agreement. Specifically, Darktrace agrees that it shall:
14.2.1. not use Regulated Data save for the purposes of delivering the Offering and Services as instructed by this Agreement;
14.2.2. implement and maintain appropriate administrative, physical, technical and organisational measures to protect any
Regulated Data accessed or processed by it against unauthorised or unlawful processing or accidental loss,
destruction, damage or disclosure which are at least equal to the most stringent of the following: (a) those set out in
Darktrace’s Information Security Standards, and (b) any higher standard required by law or regulation applicable to
Darktrace;
14.2.3. if the Customer is based in the European Union, not transfer Regulated Data outside the European Economic Area
without the prior written consent of Customer and not without procuring provision of adequate safeguards (as
defined by the European Commission from time to time);
14.2.4. take reasonable steps to ensure the reliability of its agents and employees who have access to any Regulated Data;
14.2.5. procure that any of its subcontractors who process Regulated Data are bound by contractual obligations equivalent
to those in this Clause 14;
14.2.6. upon termination of this Agreement, securely and permanently erase or destroy, in each case in accordance with
then-current industry standards that are generally accepted by well-managed operations performing similar services,
any Regulated Data stored by Darktrace (if any);
14.2.7. document disclosures to third parties of Regulated Data and information related to such disclosures as would be
required for Customer to respond to a request by an individual for an accounting of disclosures of their Regulated
Data;
14.2.8. provide reasonable support to Customer in complying with any legally mandated request for access to or correction
of any Regulated Data by any individual, or access or demand made by any court or governmental authority
responsible for enforcing privacy or data protection laws, and where such request or demand is submitted to
Darktrace, promptly notify the Customer of it; and
14.2.9. in the event that Darktrace suffers a breach of security (which for the avoidance of doubt shall include, without
limitation, any breach of Darktrace’s obligations under this Clause 14.2 and/or any loss, destruction, damage of, or
compromise to, any Customer Data in Darktrace’s possession or control), inform the Customer immediately upon
learning of the same and reasonably cooperate with the Customer in respect of the measures that should be taken
in response.
14.3. Neither Party will make any public statement or issue any public communication regarding any incident described in this
Clause, without the other Party’s prior written consent, except as strictly required by law or regulation.
14.4. To the extent there are changes to the Data Privacy Laws which materially affect the costs or risk profile of a Party, the
Parties will meet in good faith to discuss any changes to this Agreement.
15. GENERAL PROVISIONS.
15.1. Entire Agreement; Integration.
15.1.1. This Agreement, the appendices and any documents referenced herein, represent the entire agreement between the
Parties on the subject matter hereof and supersedes all prior discussions, agreements and understandings of every
kind and nature between the Parties and excludes, without limitation, any terms appearing on a purchase order,
invoice or other Customer paperwork or any other terms (in each case whether by way of conduct or otherwise). No
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modification of this Agreement shall be effective unless in writing and signed by both Parties. Each of the Parties
acknowledges and agrees that, in connection with the Agreement, it has not been induced to enter into the
Agreement in reliance upon, and does not have any remedy in respect of, any representation or other promise of any
nature other than as expressly set out in this Agreement. Each Party signing this Agreement acknowledges that it has
had the opportunity to review this Agreement with legal counsel of its choice, and there will be no presumption that
ambiguities will be construed or interpreted against the drafter.
15.1.2. Unless otherwise specifically agreed to in a writing signed by each of the Parties, if there is any conflict or
inconsistency between this Agreement, an appendix hereto, any Product Order Form issued hereunder, and or any
document incorporated by reference, the order of precedence of the documents (highest to lowest) is the Product
Order Form, this Agreement, any appendix hereto and the documents incorporated by reference.
15.2. Severability. The illegality or unenforceability of any provision of this Agreement shall not affect the validity and
enforceability of any legal and enforceable provisions hereof.
15.3. Force Majeure. Neither Party shall be liable for any failure or delay in performing services or any other obligation under this
Agreement, nor for any damages suffered by the other or a Customer by reason of such failure or delay, which is, indirectly
or directly, caused by an event beyond such Party’s reasonable control, riots, natural catastrophes, terrorist acts,
governmental intervention, refusal of licenses by the government or other government agencies, or other acts of God (each,
a “Force Majeure Event”), and such non-performance, hindrance or delay could not have been avoided by the non-
performing Party through commercially reasonable precautions, and cannot be overcome by the non-performing Party
through commercially reasonable substitute services, alternate sources, workarounds or other means. During the
continuation of a Force Majeure Event, the non-performing Party will use commercially reasonable efforts to overcome the
Force Majeure Event, and to the extent it is able, continue to perform its obligations under the Agreement.
15.4. Notices. Any notice shall be delivered by hand or sent by recorded delivery, registered post or registered airmail and
satisfactory proof of such delivery must be retained by the sender. All notices shall only become effective on actual receipt.
Any notices required to be given in writing to Darktrace or any questions concerning this Agreement should be addressed to
the General Counsel, Darktrace Limited, First Floor, The West Wing, The Platinum Building, St Johns Innovation Park, Cowley
Road, Cambridge, CB4 0DS, United Kingdom.
15.5. Rights of Third Parties. The provisions of this Agreement concerning restrictions on usage of the Offering and protection of
Intellectual Property Rights are for the benefit of and may be enforced by each of Darktrace and any Darktrace affiliate.
Except for the foregoing sentence, or as otherwise expressly set out in the Agreement, this Agreement does not create any
rights for any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms
or rely on any exclusion or limitation contained herein.
15.6. Audit. Customer shall permit Darktrace or an independent certified accountant appointed by Darktrace access, on written
notice, to Customer’s premises and Customer’s books of account and records at any time during normal business hours for
the purpose of inspecting, auditing, verifying or monitoring the manner and performance of Customer’s obligations under
this Agreement. Darktrace shall not be able to exercise this right more than twice in each calendar year.
15.7. Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create
a partnership, joint venture, or agency relationship between the Parties.
15.8. Assignment. This Agreement may not be assigned by either Party without the written consent of the other Party, which shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, consent of the other Party shall not
be required for a transfer to an Affiliate of a Party or if a Party undertakes an initial public offering, a sale of all or substantially
all of its shares or assigns all or substantially all of its business and assets to another entity that is not a direct competitor of
the non-assigning Party. Any attempt to assign this Agreement in violation of the foregoing shall be null and void. This
Agreement binds the Parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.
15.9. Governing Law. In the event the Darktrace subsidiary entity from which Customer has purchased the Licenses is located in:
(a) The United States of America, Canada, Latin America, this Agreement shall be governed by and construed in accordance
with the laws of the State of California and the courts of the California shall have non-exclusive jurisdiction to determine any
disputes, which may arise out of, under, or in connection with this Agreement; and (b) any other country, this Agreement
shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales
shall have exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this
Agreement, however, Darktrace or its Affiliate may, bring suit for payment in the country where the Customer Affiliate that
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placed the Product Order Form is located. Customer and Darktrace agree that the United Nations Convention on Contracts
for the International Sale of Goods will not apply.
15.10. Export Restrictions. The Offering provided under these terms is for Customer’s internal use and not for further
commercialisation. The Customer acknowledges that the Offering may be classified and controlled as encryption items
under the United Kingdom’s Export Regulations and other national regulations. Each Party will comply with all applicable
laws regarding export-controlled items, and will not export, re-export or import, directly or indirectly, any export-controlled
items, or any direct product of them, nor undertake any transaction hereunder in violation of any applicable export laws;
provided that it shall be for the disclosing Party’s account to provide to the other Party all the necessary information
regarding any export restrictions imposed on such information and identify such data using appropriate restrictive legends.
15.11. ITAR. Customer understands that employees of Darktrace and/or its suppliers may have access to native data to perform
the Support Services herein and represents that none of this data requires protection from access by foreign persons because
it contains technical information regarding defence articles or defence services within the meaning of the United States
International Traffic in Arms Regulations (22 CFR 120) or technical data within the meaning of the United States Export
Administration Regulations (15 CFR 730-774). If any of this data does contain any such information, Customer will either
lock down access to any such data and/or identify any folders containing such data as export controlled information and
acknowledges that special service rates may apply thereto.
15.12. Government End-User Notice (applicable to United States government customers only). The Offering is commercial within
the meaning of the applicable civilian and military Federal acquisition regulations and any supplements thereto. If the user
of the Products is an agency, department, employee, or other entity of the United States Government, the use, duplication,
reproduction, release, modification, disclosure, or transfer of the Products, including technical data or manuals, is governed
by the terms, conditions and covenants contained in the Darktrace standard commercial license agreement, as contained
herein.
15.13. Waiver. Each Party agrees that the failure of the other Party at any time to require performance by such Party of any of the
provisions herein shall not operate as a waiver of the rights of such Party to request strict performance of the same or like
provisions, or any other provisions hereof, at a later time.
15.14. Headings. All headings used herein are for convenience of reference only and shall not in any way affect the interpretation
of this Agreement.
15.15. Equitable Remedies. The Parties agree that with respect to a breach by a Party of Clauses 5, 8 or 14 monetary damages are
not an adequate or sufficient remedy for a breach of this Agreement. Therefore, in addition to any applicable monetary
damages, the a party shall also be entitled to apply for injunctive relief and other equitable relief to prevent breaches of the
Agreement.
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Appendix 1 - Definitions
1. DEFINITIONS:
1.1. Defined Terms. Terms defined in this Appendix 1 shall have the meanings given below. Defined terms may be used in the
singular or plural depending on the context.
“Affiliate” means any corporation or other business entity that directly or indirectly controls, is controlled by or is under
common control with a Party. Control means direct or indirect ownership of or other beneficial interest in fifty percent (50%)
or more of the voting stock, other vesting interest, or income of a corporation or other business entity;
“Alerts” means features of the Software which generates alerts of suspected malicious activity on a Customer’s network;
“Call Home” means the secure and encrypted channel which connects the Products to Darktrace central management;
“Confidential Information” is as defined in Clause 14, “Confidentiality”;
“Customer Data” means all data and information provided by Customer to, or accessible by, Darktrace under this Agreement
in connection with the performance of the Services (which, for the avoidance of doubt, may include information about
network traffic on Customer’s network (metrics), log/metadata collection, as well as the raw packet capture data from
Customer’s network);
“Data Privacy Laws” means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive)
Regulations 2003, and laws of similar purpose or effect in any relevant jurisdiction, in each case as amended, updated, re-
enacted or replaced from time to time;
“Documentation” means user manuals for the Products consisting of the applicable installation guides, service descriptions,
technical specifications, and online help files provided by Darktrace or available on Darktrace’s online portal;
“Evaluation Period” is as defined in Clause 2.1 “Term”;
"Fees" means all applicable fees as set forth in the Product Order Form (payable to Darktrace, or its authorised reseller, as
applicable);
“GPL Software” means third party software provided by Darktrace on the Hardware to support use of the Software which is
licensed directly to the Customer and the relevant Customer Affiliates by the relevant rights holder on the terms of the version
included or provided with it of the GNU General Public License, GNU Lesser General Public License or other comparable
license.
“Hardware” means any hardware device (including embedded firmware) shipped and installed as part of the Offering;
“Information Security Standards” means Darktrace’s information security code of conduct, as amended from time to time in
Darktrace’s sole discretion and available upon request;
“Installation” is as defined in Clause 6.1;
“Intellectual Property” means patents, trademarks, service marks, rights (registered or unregistered) in any designs,
applications for any of the foregoing, trade or business names, copyright (including rights in computer software) and
topography rights, know-how and other proprietary knowledge and information, internet domain names, rights protecting
goodwill and reputation, database rights (including rights of extraction) and all rights and forms of protection of a similar
nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licenses and consents
in respect of any of the rights and forms of protection mentioned in this definition (and “Intellectual Property Rights” shall
be construed accordingly);
“Offering” means collectively the Darktrace Products, Services and the Documentation, as more fully described on the Product
Order Form;
“Open Source Software” means third party software that Darktrace distributes with the Software pursuant to a license that
requires, as a condition of use, modification and/or distribution of such software, that the software or other software
combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making
derivative works; (iii) redistributable at no charge; or (iv) redistributable but subject to other limitations;
“Product Order Form” has the meaning set forth in the introductory paragraphs;
“Products” means the Software, and/or Software combined with Hardware, as more fully described on the Product Order Form;
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“Product Specific Terms” are as defined in Appendix 2 to this Agreement or in a Product Order Form (if any);
“Professional Services” means consulting services and/or training services performed by Darktrace’s personnel and/or agents
for the benefit of Customer as agreed in a Product Order Form;
“Regulated Data” means, generally, information relating to an identified or identifiable natural person, or other regulated
data types, as defined by applicable Data Privacy Laws;
“Reports” means Threat Intelligence Reports or Anomaly Detection Reports, as applicable, as more fully described in the
Support Services Datasheets;
“Service” means the individually or collectively the Support Services and/or any other Services to be provided by Darktrace (if
any), as set forth in the applicable Product Order Form;
“Site(s)” means the Customer’s business location or its datacentre at the locations described in a Product Order Form;
“Software” means the Darktrace or its licensor’s proprietary software (in object code form) delivered to Customer as part of the
Offering or on a standalone basis, together with all enhancements, error corrections, and/or updates which are generally
made available by Darktrace as part of the Offering. The GPL Software does not form part of the Software and is licensed
to Customer and the Customer Affiliates directly on the terms of the applicable licenses, provided that the GPL Software will
nevertheless be deemed to form part of the Software for the purposes of the Support Services, such that Darktrace supports
it as if it were part of the Software;
“Support Services” means the support and analytics services provided as part of the Offering as described in a Product Order
Form (if applicable) and as set out in the Darktrace Product Support and Analytics Services Datasheet;
“Term” is as defined in Clause 13, “Term; Termination”;
“Third Party Licensors” means the suppliers of the Third Party Software to Darktrace;
“Third Party Software” means (i) any software or other technology that is licensed to Darktrace from Third Party Licensors
which is not proprietary to Darktrace, but which Darktrace has the necessary rights to license to Customer; and (ii) Open
Source Software.
1.2. Construction. In this Agreement (except where the context otherwise requires):
1.2.1. any reference to a clause or schedule is to the relevant clause or schedule of or to this Agreement and any reference
to a paragraph is to the relevant paragraph of the clause or schedule in which it appears;
1.2.2. the index and clause headings are included for convenience only and shall not affect the interpretation of this
Agreement;
1.2.3. use of the singular shall include the plural and vice versa;
1.2.4. use of any gender shall include the other gender;
1.2.5. any reference to persons includes natural persons, firms, partnerships, companies, corporations, associations,
organisations, governments, states, foundations and trust (in each case whether or not having separate legal
personality);
1.2.6. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed
as illustrative and shall not limit the sense of the words preceding those terms;
1.2.7. any reference to any other document is a reference to that other document as amended, varied, supplemented, or
novated (in each case, other than in breach of the provisions of this Agreement) at any time.
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V15.08.2017 MCA SHRINKWRAP 14
Appendix 2: Product Specific Terms
Antigena. The Parties acknowledge that the Antigena Software shall only be used in “recommendation mode” unless otherwise
agreed by the Parties in writing. The Antigena Network Software, may be set in “active mode”, where is intended to terminate
connections between devices on the Customer’s network and devices on the network and external to the network, or
“recommendation mode”, where it will only report on what connections it would have terminated. but no connections will be
terminated. The Antigena Network Software is targeted such that only highly anomalous connections between devices are
terminated, however, if the continued communication to and from particular devices takes precedence over any gain from protection
against the anomalous events, it is recommended that such devices are configured in the Antigena user interface such that they will
never have their connections terminated. The same prevention may also be deployed within the Customer’s network infrastructure
to deny the active interface of the Antigena Network Software the ability to take any unwanted actions occurring on the network.
Darktrace Enterprise / Industrial Immune System Appliance. The Darktrace Software delivered on Hardware appliance(s) is for use
with respect to the applicable bandwidth throughput, number of connected devices and connections per minute as set out in the
applicable Hardware Datasheet.
Darktrace Enterprise / Industrial Immune System SaaS Service. The Darktrace Software hosted in a Darktrace Amazon Web Service
cloud environment for fully virtualised Customer environments. vSensors process data on the Customers’ network and report into
the AWS virtual master.
SaaS Connectors. Darktrace SaaS Connectors are available for major SaaS providers, including Salesforce.com, Box.com, G Suite,
Dropbox and Microsoft Office 365. These are licensed on a per SaaS application basis.
vSensor Software. The vSensor software is installed as a virtual appliance configured to receive a SPAN from the virtual network
switch. This allows it to capture inter-VM traffic. Only one needs to be installed on each of the (Customer-supplied) hardware
servers. The vSensor software must be used in conjunction with a master Darktrace Enterprise Immune System Appliance and/or
SaaS Service and is, therefore, subject to the bandwidth, throughput, number of connected devices and connections per minute as
set out in the applicable Product Datasheet. oSensor software will be provided in sufficient numbers as required to work with the
licensed number of vSensors.
[End of Agreement]
Meridian City Council Meeting Agenda September 24, 2019 – Page 174 of 257