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9.2.
9.3
9.4
9.5
9.6
10.
10.1.
10.2.
‘@ DARKTRACE
Software Warranty. Darktrace warrants to Customer that during a period of ninety (90) days from the date of delivery of
the Appliance, the Software will perform materially in accordance with the applicable Datasheet.
Services Warranty. Darktrace warrants to Customer that all Services will be performed with all reasonable care, skill and
diligence in accordance with generally recognised commercial practices and standards.
Exceptions. The warranties contained in Clause 9.1 and Clause 9.2 above will 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) the Appliance has been subject to Customer’s (or its
agent’s) abuse, negligence, improper storage, servicing or operation (including without limitation use with incompatible
equipment), reasonable wear and tear excepted; (iv) the Appliance has 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 Appliance made
available to Customer by Darktrace; or (vi) Customer (or its agent) has combined the Appliance 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.
Remedies. If during the applicable warranty period contained in Clause 9.1 or Clause 9.2 above: (i) Darktrace is notified
promptly in writing upon discovery of an error in any of the Appliance, including a detailed description of such alleged error;
and (ii) Darktrace’s inspections and tests determine that the Appliance contains an error and it is not subject to any of the
exceptions set out in Clause 9.4, then, as Darktrace’s entire liability and Customer’s sole remedy for such breach of warranty,
Darktrace will (at Darktrace’s option and sole expense) correct, repair or replace the Appliance within a reasonable time or
provide or authorise a refund of the unused portion of the Fees Customer has paid for the Offering following the return of
the Appliance to Darktrace and the Agreement will terminate. Any items provided as replacement under the terms of the
applicable warranty will be warranted for the remainder of such original warranty period. Darktrace will pay for, and will bear
all risk of loss of or damage to, the return shipment of the Appliance to Darktrace and the shipment of repaired or replaced
the Appliance to Customer. Customer agrees to provide prompt notice of any failure under Clause
9.3 and Darktrace will re-perform any Service that fails to meet the warranted standard.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THIS AGREEMENT, AND TO THE FULLEST EXTENT
PERMITTED BY LAW, NEITHER DARKTRACE NOR ANY OF ITS THIRD PARTY LICENSORS OR 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..
DARKTRACE DOES NOT WARRANT THAT THE OPERATION OF THE OFFERING WILL BE ERROR-FREE OR UNINTERRUPTED.
INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT INDEMNITY
Darktrace Indemnity. Darktrace will indemnify Customer, Customer’s Affiliates, and their respective officers, directors, and
employees (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 its receipt, possession or use by any
Customer Indemnitee, infringes a European or U.S. patent, any copyright, or misappropriates any third party trade secrets.
The indemnification obligations of Darktrace will be subject to 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 will 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
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. Customer will be obliged to mitigate its losses insofar as is reasonable in the circumstances.
Exclusions. The obligations set out 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 or authorised by Darktrace in writing, 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;
V09.12.2020 MCA SHRINKWRAP 5
