DocuSign Envelope ID: 6BE73965-BAEF-4791 -B930-DABA9714DC55
12.3.
13.
13.1.
13.2.
13.3.
13.4.
13.5.
13.6.
14.
14.1.
‘@ DARKTRACE
DAMAGE.
Exclusions from Limitation of Liability. Nothing in this Agreement will exclude or limit either Party’s liability for: (i) for death
or personal injury due to negligence; (ii) fraud; (iii) breach of Clause 14 (“Confidentiality”); (iv) breach of Clause 5 (“Licence
Grant for the Software and Restrictions”), (v) Gross Negligence or Willful Misconduct; or (vi) for any other matter in respect
of which liability cannot lawfully be limited or excluded. For purposes of the foregoing, “Gross Negligence” means the
performance or failure of performance by a party of a manifest duty at law (not being a contractual breach) with a wanton
and reckless disregard of the consequences of such failure as they may affect the life, property or right of the other party;
and “Willful Misconduct” means an action undertaken by a party with the malicious intent to cause harm to the other party.
TERM; TERMINATION
Term. This Agreement is effective from the Effective Date and will remain in force until: (i) expiry of the Evaluation Period
in accordance with Clause 2.1 above; or (ii) the end of the term specified in a Product Order Form (as applicable the “Term”).
In the event of extension or renewal of the Product Order Form, such extension or renewal shall be considered a new and
separate Term.
Expiration of the Term. Notwithstanding any provision of this Clause 13, Customer’s right to use, and Customer’s access
to, the Appliance will automatically terminate on expiry of the Term unless and until Customer renews or extends the Term
for the Appliance.
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 such breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases
its business operations or becomes subject to insolvency proceedings, which proceedings are not dismissed within thirty
(30) days.
Termination or Suspension by Darktrace. Without prejudice to any other right or remedy available to Darktrace:
13.4.1. Darktrace may restrict, suspend or terminate Customer’s licence or use of the Offering without liability if a court or
other government authority 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 will also be suspended.
In the event the Offering is suspended pursuant to this Clause 13.4.1 then provided it is lawful to do so, Darktrace
will inform Customer of the reasons for the suspension and will work with Customer to resolve such issues and re-
instate the Offering.
13.4.2. Additionally, Darktrace may terminate, suspend or limit Customer’s licence grant or use of the Offering without
liability if Darktrace provides Customer with written notice that it has a reasonable suspicion that Customer is using
the Offering: (i) in breach of Clause 5.1 or Clause 5.2; or (ii) in a manner that is otherwise unlawful, and in each case
Customer does not cure the condition identified in such notice within five (5) business days.
Effect of Termination. Upon termination or expiration of this Agreement:
13.5.1. The Term and all other rights and licences granted by one Party to the other, and any Services provided by Darktrace
to Customer, will cease immediately;
13.5.2. Customer shall ensure all Customer Data is removed from the Appliance and return the Appliance to Darktrace in
accordance with Clause 4.3. DARKTRACE WILL NOT BE RESPONSIBLE FOR MAINTAINING OR PROTECTING ANY
CONFIGURATION SETTINGS OR DATA FOUND ON THE RETURNED HARDWARE OR COMPONENT PART OF THE
HARDWARE AND IT IS CUSTOMER'S SOLE RESPONSIBILITY TO DELETE ANY SUCH INFORMATION PRIOR TO RETURN;
and
13.5.3. All undisputed Fees owing to Darktrace at the date on which termination takes effect will become due and payable.
Survival. The following provisions will survive any termination of this Agreement: Clause 2 (“Evaluations and Beta
Testing”)”; Clause 5 (“Licence Grant For the Software and Restrictions”); Clause 7 (“Fees, Payments and Taxes”); Clause 8
(“Intellectual Property; Ownership”); Clause 9.6 (“Disclaimer”); 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;”); Clause 15 (“Data Protection”); and Clause 16
(“General Provisions”).
CONFIDENTIALITY
Each party will treat the other party’s Confidential Information as confidential. Confidential Information of one Party (the
“Disclosing Party”) may only be used by the other Party (the “Receiving Party”) for the purpose of fulfilling obligations or
exercising rights under this Agreement, and may only be shared with employees, agents or contractors of the Receiving
V09.12.2020 MCA SHRINKWRAP 7
