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2.3.
2.4,
3.1.
4.1.
4.2.
4.3.
5.1.
‘@ DARKTRACE
Clause 9 and Clause 12 will not apply to Evaluations or Preview Products. APPLIANCES PROVIDED FOR THE PURPOSES OF
EVALUATION (“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
EVALUATION PRODUCTS OR PREVIEW PRODUCTS; AND (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, OR ANY 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.
IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN CLAUSE 2.3 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, SHALL NOT
EXCEED TEN THOUSAND POUNDS STERLING (£10,000).
OFFERING; ORDER PROCESS
Darktrace agrees to provide to Customer: (i) the number and type of Appliances; (ii) the Support Services; and (iii) the training
to be provided to Customer, if any, each as set out in the Product Order Form. The Product Order Form must be in writing and
reference this Agreement to be valid. The Product Order Form will be governed by this Agreement and any different or
additional terms presented with or in any communication, including but not limited to, 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.
HARDWARE
Hardware Products. Unless otherwise agreed in the Product Order Form, use of the Hardware is included in the Fees. The
Hardware is provided solely as the medium for delivery and operation of the Software, and must not be used for any other
purpose. Customer will be granted a licence to the Software on the terms of Clause 5 below.
Delivery. Darktrace will use commercially reasonable efforts to ship the Appliance(s) on the agreed delivery dates (in partial
or full shipments); provided, however, that Darktrace will in no event be liable for any delay in delivery or for failure to give
notice of delay. 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 Appliance FCA (Incoterms 2010) to the agreed Sites. In the absence
of specific shipping instructions from Customer, Darktrace will ship by the method of its choice. Unless otherwise agreed,
Customer will 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 the Appliance(s) to Customer. Darktrace will identify itself in all documents
related to the shipment of the Appliance(s) as the exporter of record from the applicable jurisdiction of export, and Customer
(or its agent, as applicable) as the importer of record into the country of delivery.
Title to Hardware. Title to the Hardware will remain with Darktrace for the entire Term. Upon termination for any reason,
or on expiration of the Term, Customer shall return the Hardware to Darktrace, securely and properly packaged, with carriage
(and insurance at Customer’s option) prepaid. Whilst the Hardware is in Customer’s possession, Customer must (a) clearly
designate the Hardware as Darktrace’s property; (b) hold the Hardware on a fiduciary basis as Darktrace’s bailee; (c) store
and use the Hardware in a proper manner in conditions which adequately protect and preserve the Hardware; (d) insure the
Hardware against all risks to its full replacement value; and (e) not sell, charge, pledge, mortgage or otherwise dispose of the
Hardware or any part of it or permit any lien to arise over the Hardware (or part thereof) and keep the Hardware free from
distress, execution and other legal process.
LICENCE GRANT FOR THE SOFTWARE AND RESTRICTIONS
Licence Grant for Software. In consideration of the Fees paid by 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-sublicensable licence for the Term to: (i) install and use the Appliance on the Site(s) or an Outsource Provider’s site(s) for
Customer’s or its Affiliate’s internal business purposes (provided that neither Customer nor its Affiliates may use the Appliance
or the Services as a commercial product or for the benefit of an unaffiliated third party); (ii) make a commercially reasonable
number of copies of the Documentation; provided however, that Customer must reproduce and include all of Darktrace's and
its suppliers' copyright notices and proprietary legends on each such copy;.
V09.12.2020 MCA SHRINKWRAP 2
