DocuSign Envelope ID: 66E73965-BAEF-4791-B930-DABAS7 14DC55
10.3.
10.4.
11.
11.1.
12.
12.1
DARKTRACE
{c) Customer's continued allegedly infringing activity after being notified thereof and being provided with modifications that
would have avoided the alleged infringement (which in implementing such modifications, Darktrace will 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; {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.
Remedies. If Darktrace reasonably believes the Software infringes a third party’s Intellectual Property Rights, then
Darktrace will, at its option and at no additional cost to 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 licence for the allegedly infringing
Software and refund a pro rata refund of the Fees paid by Customer from the date a third party claim arose for the allegedly
infringing Software to the then-current date, whereupon this Agreement will automatically terminate.
THIS CLAUSE 1018 A COMPLETE STATEMENT OF THE CUSTOMER’S REMEDIES FOR THIRD PARTY CLAIMS FOR INFRINGEMENT
AS DESCRIBED IN CLAUSE 10.1.
CUSTOMER DATA; CUSTOMER UNDERTAKINGS AND INDEMNITY
Customer Data; Licence Grant. Customer will own all right, title and interest in and to the Customer Data and to the extent
such Customer Data is included in a Report, the actual content of such Report. For any Customer Data stored on the
Appliance, to the extent required to provide the Services, Customer grants to Darktrace a iimited, and non-exclusive licence
to access and use the Customer Data only to the extent necessary for Darktrace to perform the Services. Customer agrees
Darktrace may utilise the details of any Alerts occurring in Customer's network and any connected data source to develop
the Offering on an anonymised basis and excluding any Customer Confidential Information.
. 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 Barktrace) will 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 Personal Data.
. DATA DISCLAIMER; INDEMNITY. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE OF THE OFFERING, THE ACTIVITIES OF ITS
USERS AND FOR THE ACCURACY, INTEGRITY, LEGALITY, RELIABILITY AND APPROPRIATENESS OF ALL CUSTOMER DATA.
CUSTOMER EXPRESSLY RECOGNISES THAT DARKTRACE DOES NOT CREATE OR ENDORSE ANY CUSTOMER DATA PROCESSED
BY OR USED IN CONJUNCTION WITH THE OFFERING. CUSTOMER FURTHER ACKNOWLEDGES THAT DARKTRACE AND ITS
AFFILIATES DO NOT PROVIDE BACKUP SERVICES FOR CUSTOMER DATA AND CUSTOMER UNDERTAKES THAT IT SHALL BE
SOLELY RESPONSIBLE FOR BACKUP OF ALL CUSTOMER DATA. Customer will, at Customer's own expense, indemnify, defend
and hold Darktrace, its Affiliates, and their respective officers, directors, and employees, (“Darktrace Indemnitees”}
harmless from and against all liabilities, damages, and costs, including settlement costs and reasonable attorneys’ fees,
incurred by reason of Darktrace's compliance with the instructions of Customer with respect to the ownership, custody,
processing or disposition of the Customer Data by Darktrace, as applicable.
LIMITATION OF LIABILITY
LIMITATION OF LIABILITY. SUBJECT TO THE REMAINDER OF THIS CLAUSE 12, EACH PARTY'S MAXIMUM LIABILITY TO THE
OTHER PARTY FOR ANY AND ALL CLAIMS, LOSS OR DAMAGE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE}, BREACH
OF STATUTORY DUTY, OR OTHERWISE, 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) CLAUSE 11.3 (“DATA DISCLAIMER; INDEMNITY”) AND (il) CLAUSE 15 (“DATA
PROTECTION”) EACH PARTY'S LIABILITY TO THE OTHER FOR ALL SUCH BREACHES SHALL NOT EXCEED, IN THE AGGREGATE , THE
GREATER OF (A} THREE TIMES (3X) TOTAL FEES PAID OR PAYABLE TO DARKTRACE FOR THE OFFERING DURING THE THEN-
APPLICABLE TERM OR (B) ONE MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS ($1,500,000).
12.2.
EXCLUSION OF CONSEQUENTIAL DAMAGES. SUBJECT TO CLAUSE 12.3 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY INDRECT OR CONSEQUENTIAL LOSS; OR ANY 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, HOWSOEVER
ARISING AND WHETHER OR NOT SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, CORRUPTION OR
V09.12.2020 MCA SHRINKWRAP 6
