HomeMy WebLinkAbout18-090 - Darktrace - Network Monitoring and SecurityDARKTRACE MASTER CUSTOMER AGREEMENT
IMPORTANT- READ CAREFULLY:
DARKT'ACE
18-090
Council Approval N/A
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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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
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: (1) 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 Toss.
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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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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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 ODS, 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 CaII 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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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
Toss 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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PERFORMANCE, DEALING, USAGE OR TRADE. SOME JURISDICTIONS DA NOT ALkOW THE EXCLUSION OF IMPLIED
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 nonexclusive 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 (11)
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
V16.10.2017 MCA SHRINKWRAP 7
DARKTRACE
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
V16.10.2017 MCA SHRINKWRAP 8
DARKTRACE
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 Toss,
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 Toss, 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
V16.10.2017 MCA SHRINKWRAP 9
DARKTRACE
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 Maieure Event"), and such non-performance, hindrance or delay could not have been avoided by the nonperforming
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. AH 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 ODS, 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 Washington California and the courts of the State of Washington 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
V16.10.2017 MCA SHRINKWRAP 10
with this Agreement, however, Darktrace or its Affiliate may, bring suit for payment in the country where the Customer Affiliate
that
DARKTRACE
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.
16.0. Compensation and Method of Payment. The City shall pay the vendor for services rendered according to the rate and method
set forth on attached signature sheet and incorporated herein by this reference. The total amount to be paid shall not exceed
$21,890 at a rate of $1824 per month.
[the remainder of this page is intentionally left blank]
V16.10.2017 MCA SHRINKWRAP 11
DARKT'.ACE
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;
V15.08.2017 MCA SHRINKWRAP 12
DARKTRACE
"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.
V15.08.2017 MCA SHRINKWRAP 13
DARKT' »\CE
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]
V15.08.2017 MCA SHRINKWRAP 14
MARSH
To Whom It May Concern
Nick Mallery
Client Adviser
National Corporate Practice
Marsh Ltd
The Pinnacle
160 Midsummer Boulevard
Milton Keynes
MK9 1 FF
+44 (0)1908 846087
Fax +44 (0) 1908 660349
nick.mallery@marsh.com
www.marsh.com
24 January 2018
Dear Sirs
CONFIRMATION OF INSURANCE — Darktrace Limited and subsidiaries
As requested by the above client, we are writing to confirm that we act as Insurance Brokers to
the client and that we have arranged insurance(s) on its behalf as detailed below:
PROFESSIONAL INDEMNITY
INSURER : Hiscox
POLICY NUMBER : 9542808
PERIOD OF INSURANCE : 1st December 2017 to 30th November 2018, both dates inclusive
LIMIT OF LIABILITY : GBP 10,000,000 any one claim defence costs in addition
DEDUCTIBLE
GBP 10,000 each and every claim excluding defence costs
GBP 20,000 each and every claim excluding defence costs
(North America)
PUBLIC AND PRODUCTS LIABILITY
Insurer :
Policy Number :
Period of Insurance :
LIMIT OF LIABILITY:
DEDUCTIBLES:
Chubb European Group Limited
UKINTC92535
1st December 2017 to 30th November 2018, both dates
inclusive
Public Liability -
Products Liability -
GBP 10,000,000 per occurrence
GBP 10,000,000 per occurrence and
in the aggregate
Public Liability
In respect of property damage only
In respect of the United States of
Registered in England and Wales Number: 1507274, Registered Office:
1 Tower Place West, Tower Place, London EC3R 5BU. Marsh Ltd is
authorised and regulated by the Financial Conduct Authority.
GBP 500
GBP 500
MARSH & MCLENNAN
COMPANIES
MARSH
Page 2
24 January 2018
Darktrace Limited
America or its territories or
possessions and Canada
Product Liability
In respect of the United States
of America or its territories or
possessions and Canada
POLICY EXTENSION
Indemnity to principals and others
USD 5,000
GBP 500
USD 5,000
The Company will also indemnify in the terms of this Policy:
1. in the event of the death of the Insured his/her legal personal representative in respect of
liability incurred by the Insured; or
2. any principal with whom the Insured has entered into an agreement to the extent required
by such agreement but only in respect of liability for which the Insured would have been
entitled to indemnity under this Policy if the claim had been made against the Insured
and at the request of the Insured:
3. any officer or member of the Insured's catering sports social and welfare organisations and
fire, first-aid or ambulance services;
4. any director, partner or employee of the Insured in respect of liability for which the Insured
would have been entitled to indemnity under this Policy if the claim had been made against the
Insured; or
5. any director, partner or employee of the Insured in respect of liability for private work
undertaken by employees with the consent of the Insured
provided that:
1. such person(s) shall not be entitled to indemnity under any other policy;
2. such principal/person(s) shall as though he/they were the Insured be subject to the terms of
this Policy in so far as they can apply; and
3. the Limit of Liability shall not be increased hereby.
MARSH & McLENNAN
COMPANIES
MARSH
Page 3
24 January 2018
Darktrace Limited
Explanatory note - The above extension is the equivalent under UK Law and insurance practice,
of "Additional Insured" as found in US insurance policies.
We have placed the insurance which is the subject of this letter after consultation with the client
and based upon the client's instructions only. Terms of coverage, including limits and deductibles,
are based upon information furnished to us by the client, which information we have not
independently verified.
This letter is issued as a matter of information only and confers no right upon you other than those
provided by the policy. This letter does not amend, extend or alter the coverage afforded by the
policies described herein. Notwithstanding any requirement, term or condition of any contract or
other document with respect to which this letter may be issued or pertain, the insurance afforded
by the policy (policies) described herein is subject to all terms, conditions, limitations, exclusions
and cancellation provisions and may also be subject to warranties. Limits shown may have been
reduced by paid claims.
We express no view and assume no liability with respect to the solvency or future ability to pay of
any of the insurance companies which have issued the insurance(s).
We assume no obligation to advise yourselves of any developments regarding the insurance(s)
subsequent to the date hereof. This letter is given on the condition that you forever waive any
liability against us based upon the placement of the insurance(s) and/or the statements made
herein with the exception only of wilful default, recklessness or fraud.
This letter may not be reproduced by you or used for any other purpose without our prior written
consent.
This letter shall be governed by and shall be construed in accordance with English law.
Yours - ; erely
ick Mallei'y VR
Client Adviser
MARSH & McLENNAN
COMPANIES
W-8BEN-E
(Rev. July 2017)
Department of the Treasuo,•
Internal Revenue Service
Certificate of Status of Beneficial Owner for
United States Tax Withholding and Reporting (Entities)
For use by enuties. Individuals must use Form W-8BEN. Section references are to the Internal
Revenue Code. Go towww.i .govIFormWBBENE for instructions and the latest Information. Give
this form to the withholding agent or payer. Do not send to the IRS.
OMB alo.1545-1621
Do NOT use t'is form for: Instead use Form:
• U.S. entity or U.S. citizen or residentw-9 • A foreign individual
W-8BEN (Individual) or Form 8233
•A foreign individual or entity claiming that income is effectively connected with the conduct of trade or business within the U.S.
(unless claiming treaty benefits) _ . w-BECI
•A foreign partnership, a foreign simple trust, or a foreign grantor trust (unless claiming treaty benefits) (see Instructions for exceptions) .. W-81MY
•A foreign government, international organization, foreign central bank of issue, foreign tax-exempt organization, foreign private foundation, or government
of a U.S. possession claiming that income is effectively connected U.S. income or that Is claiming the applicability of section(s) 1 15(2),
501 (c), 892, 895, or 1443(b) (unless claiming treaty benefits) (see instructions for other exceptions). W-8ECI or W-
8EXP
• Any person acting as an intermediary (Including a qualified intermediary acting as a qualified derivatives dealer) W-81MY
Identification of Beneficial Owner
1 Name of organization that is the beneficial owner
Darktrace Umited
2 Country of incorporation or organization
UK
3 Name of disregarded entity receiving the payment (if applicable, see
instructions)
4 Chapter 3 Status (entity type) (Must check one box only): l21 Corporation
[3 Simpke trust Giantor truet Complex trust
(3 Central Bank of Issue Tax-exempt organization
If you entered disregarded entity, partnership, simple trust, or grantor trust
above, is claim? If "Yes" complete Part III.
[3 Private foundation
[3 Disregarded entity
Estate
0 International organization
e entity a hybrid making a treaty
❑ Partnership
Government
SChapter 4 Status (FATCA status) (See instructions for details and complete the certification below for the entity's applicable status.)
[3 Nonparticipating FFI (including an FFI related to a Reporting IGA C] Nonreporting IGA FFI. Complete Pan XII.
FFI other than a deemed -compliant FFI, participating FFI, or [3 Foreign government, govemment of a U.S. possession, or
foreign
central bank of issue. Complete Part XIII.
exempt beneficial owner).
Participating FFI.
[3 Reporting Model 1 FFI.
International organization. Complete Part XIV.
[3 Exempt retirement plans. Complete Part XV.
Reporting Model 2 FFI. Entity wholly owned by exempt beneficial owners. Complete Part WI.
Registered deemed -compliant FFI (other than a reporting Model 1 Territory financial institution. Complete Part W 11.
See instructions. [3 Excepted nonfinancial start-up company. Complete Part
XD(.
. [3 Sponsored FFI. Complete Part IV. . C] Excepted nonfinancial entity in liquidation or bankruptcy.
[3 Certified deemed -compliant nonregistering local bank. Complete Complete Part)X.
Part V.
[3 Certified deemed -compliant FFI with only low -value accounts.
Complete Part VI.
[3 Certified deemed -compliant sponsored, closely held investment
vehicle. Complete Part VII.
[3 Certified deemed -compliant limited life debt investment entity.
Complete Part VIN.
501 (c) organization. Complete PartXX L
(3 Nonprofit organization. Complete Part XXII.
Publicly traded NFFE or NFFE affiliate of a publicly traded
corporation. Complete Part XXIII.
(3 Excepted territory NFFE. Complete Part XX I V
Active NFFE. Complete Part X)(V.
Certain investment entities that do not maintain financial accounts.[3 Passive NFFE, Complete Part XM/I.
Complete Pan D(. [3 Excepted inter -affiliate FFI. Complete Part X)(VII.
[3 Direct reporting NFFE.
[3 Sponsored direct reporting NFFE. Complete Part XXVIII.
Account that is not a financial account.
Owner -documented FFI. Complete Part X.
[3 Restricted distributor. Complete Part X'.
Form W-8BEN-E (Rev. 7-2017)
Form W-BBEN-E (Rev. 7-2017)
FFI, sponsored FFE, or nonreporting IGA FH covered in Part XII).
7 Mailing address (if different from above)
Excepted nonfinancial group entity. Complete Part Will.
City or town, state or province. Include postal code where appropriate.
Country
U.S. taxpayer identification number (TIN), if required
9a GIiN
b Foreign TIN
98-1156435
10 Reference number(s) (see instructions)
Note: Please complete remainder of the form including signing the form in Part'00(.
For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 59689N
6 Permanent residence address (street, apt. or suite no., or rural route). Do not use a P.O. box or in -care -of address (other than a registered address).
Platinum Buildin, Cowie Road
City or town, state or province. Include postal code where
appropriate.
Cambrid e CB4 ODS
Country
UK
Part
I I
Disregarded Entity or Branch Receiving Payment. (Complete only if a disregarded entity with
a GIN or a
branch of an FFI in a country other than the FFI 's country of residence. See instructions.)
11 Chapter 4 Status (FATCA status) of disregarded entity or branch receiving payment
Branch treated as nonparticipating FFI. Reporting Model 1 FFI. u.s. Branch. Participating FFI. Reporting
Model 2 FN.
12 Address of disregarded entity or branch (street, apt. or suite no., or rural route). Do not use a P.O. box or in -care -of address (other than
a registered address).
City or town, state or province. Include postal code where appropriate.
Country
13 GIIN (if any)
that country.
Claim of Tax Treaty Benefits (if applicable). (For chapter 3 purposes only.)
14 I certify that (check all that apply):
a The beneficial owner Is a resident of within the meaning of the income tax treaty between the United States and that country.
b The beneficial owner derives the item (or items) of income for which the treaty benefits are claimed, and, if applicable, meets the
requirements of the treaty provision dealing with limitation on benefits. The following are types of limitation on benefits provisions
that may be included in an applicable tax treaty (check only one; see instructions):
Govemment Company that meets the ownership and base erosion test The
❑Tax exempt pension trust or pension Company
that meets the derivative benefits test beneficial
fund [3 Company with an item of income that meets active trade or business test owner is
0 Other tax exempt organization Favorable discretionary determination by the U.S. competent authority claiming
Publicly traded corporation received Other (specify Article and paragraph): treaty
benefits
Subsidiary of a publicly traded corporation
Form W-8BEN-E (Rev. 7-2017)
for U.S. source dividends received from a foreign corporation or interest from a U.S. trade or business of•a foreign corporation and meets qualified
resident status (see instructions).
15 Special rates and conditions (if applicable—see instructions):
The beneficial owner is claiming the provisions of Article and paragraph
of the treaty identified on line 14a above to claim a % rate of withholding on (specify type of income):
Explain the additional conditions in the Article the beneficial owner meets to be eligible for the rate of withholding:
Part
tv
Sponsored FFI
16 Name of sponsoring entity:
17 Check whichever box applies.
I certify that the entity identified In Part I:
• Is an investment entity;
• Is not a al, WP (except to the extent permitted in the withholding foreign partnership agreement), or WT; and
• Has agreed with the entity identified above (that is not a nonparticipating FFI) to act as the sponsoring entity for this entity, I certify that the entity
identified in Part I:
• Is a controlled foreign corporation as deflned in section 957(a); • Is not a Q, wp, or WT;
• Is wholly owned, directly or indirectly, by the U.S. financial institution identified above that agrees to act as the sponsoring entity for this entity; and
• Shares a common electronic account system with the sponsoring entity (identified above) that enables the sponsoring entity to
identify all account holders and payees of the entity and to access all account and customer information maintained by the entity
including, but not limited to, customer identification information, customer documentation, account balance, and all payments made
to account holders or payees.
Form W-8BEN-E (Rev. 7-2017) Page 3
Part V
Certified Deemed -Compliant Nonregistering Local Bank
18 (3 1 certify that the FFI identified in Part t:
• Operates and is licensed solely as a bank or credit union (or similar cooperative credit organization operated without profit) in its
country of incorporation or organization;
• Engages primarily in the business of receiving deposits from and making loans to, with respect to a bank, retail customers unrelated
to such bank and, with respect to a credit union or similar cooperative credit organization, members, provided that no member has
a greater than 5% interest in such credit union or cooperative credit organization;
• Does not solicit account holders outside its country of organization;
• Has no fixed place of business outside such country (for this purpose, a fixed place of business does not include a location that is not
advertised to the public and from which the FFI performs solely administrative support functions);
• Has no more than $175 million in assets on its balance sheet and, if it is a member of an expanded affiliated group, the group has no
more than 5500 million in total assets on its consolidated or combined balance sheets; and
• Does not have any member of its expanded affiliated group that is a foreign financial institution, other than a foreign financial institution that is
incorporated or organized in the same country as the FFI identified In Part I and that meets the requirements set forth in this part.
Part
VI
Certified Deemed -Compliant FFI with Only Low -Value Accounts
19
1 certify that the FFI identified in Part I:
• Is not engaged primarily in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, notional
principal contracts, insurance or annuity contracts, or any interest (including a futures or forward contract or option) in such security,
partnership interest, commodity, notional principal contract, insurance contract or annuity contract;
• No financial account maintained by the FRI or any member of its expanded affiliated group, if any, has a balance or value in excess of
Form W-8BEN-E (Rev.7-2017)
Form W-8BEN-E (Rev. 7-2017)
$50,000 (as determined after applying applicable account aggregation rules); and
• Neither the FFI nor the entire expanded affiliated group, if any, of the FFI, have more than $50 million in assets on its consolidated or
combined balance sheet as of the end of its most recent accounting year.
Part
Certified Deemed -Compliant Sponsored, Closely Held Investment Vehicle
20 Name of sponsoring entity:
21 [3 1 certify that the entity identified in Part I:
• Is an FFI solely because it is an investment entity described in Regulations section 1.1471-5(e)(4);
's not a Q', WP, or WT;
Will have all of its due diligence, withholding, and reporting responsibilities (determined as if the FFI were a participating FFI)
fulfilled by the sponsoring entity identified on line 20; and
• 20 or fewer individuals own all of the debt and equity interests in the entity (disregarding debt interests owned by U.S. financial
institutions, participating FFIs, registered deemed -compliant FFIs, and certified deemed -compliant FFIs and equity interests
owned by an entity if that entity owns 100% of the equity interests in the FFI and is itself a sponsored FFI).
Part
Certified Deemed -Compliant Limited Life Debt Investment Entity
22 ClI certify that the entity identified in Part I:
• Was in existence as Of January 17, 2018;
Issued all classes of its debt or equity Interests to investors on or before January 17, 2013, pursuant to a trust indenture or similar agreement;
and • Is certified deemed -compliant because it satisfies the requirements to be treated as a limited life debt investment entity (such as the
restrictions with respect to its assets and other requirements under Regulations section I .1471 -5(f)(2)(iv)).
Part
IX
Certain Investment Entities that Do Not Maintain Financial Accounts
23
1 certify that the entity identified in Part 1:
Is a financial institution solely because it is an investment entity described in Regulations section 11471-5(e)(4))(A), and
Does not maintain financial accounts.
Part
X
Owner -Documented FFI
Note: This status only applies if the U.S. financial institution, participating FFI, or reporting Model 1 FFI to which this form is given has agreed
that it will treat the FFI as an owner -documented FFI (see instructions for eligibility requirements). In addition, the FFI must make the
certifications below.
24a [3 (Al owner -documented FFIs check here) I certify that the FFI identified in Part I:
• Does not act as an Intermediary;
• Does not accept deposits in the ordinary course of a banking or similar business;
• Does not hold, •as a substantial portion of its business, financial assets for the account of others;
• Is not an .insurance company (or the holding company of an insurance company) that issues or is obligated to make payments
with respect to a financial account;
• Is not owned by or in an expanded affiliated group with an entity that accepts deposits in the ordinary course of a banking or
similar business, holds, as a substantial portion of its business, financial assets for the account of others, or is an insurance
company (or the holding company of an insurance i ompany) that issues or is obligated to make payments with respect to a
financial account;
• Does not maintain a financial account for any nonparticipating FFI; and
• Does not have any specified U.S. persons that own an equity interest or debt interest (other than a debt interest that is not a
financial account or that has a balance or value not exceeding $50,000) in the FFI other than those identified on the FFI owner
reporting statement.
Part
X
Owner -Documented FFI (continued)
Check box 24b or 24c, whichever applies.
b 1 certify that the FFI identified in Part I:
• Has provided, or will provide, an FFI owner reporting statement that contains:
(i) The name, address, TIN (if any), chapter 4 status, and type of documentation provided (if required) of every individual and
specified
Form W-8BEN-E (Rev. 7-2017)
U.S. person that owns a direct or indirect equity interest in the owner -documented FFI (looking through all entitles other than specified
U.S. persons);
(ii) The name, address, TIN (if any), and chapter 4 status of every individual and specified U.S. person that owns a debt interest in
the owner -documented FFI (including any indirect debt interest, which includes debt interests in any entity that directly or
indirectly owns the payee or any direct or indirect equity interest in a debt holder of the payee) that constitutes a financial
account in excess of $50,000 (disregarding alt such debt interests owned by participating FFIs, registered deemed -compliant FAS,
certified deemedcompliant FFIs, excepted NFFEs, exempt beneficial owners, or U.S. persons other than specified U.S. persons):
and (iii) Any additional information the withholding agent requests in order to fulfill its obligations with respect to the entity.
• Has provided, or will provide, valid documentation meeting the requirements of Regulations section 1.1471 a(CO(8)N for each person identified In the
FFI owner reporting statement.
C [3 1 certify that the FFI identified in Part I has provided, or will provide, an auditor's letter, signed within 4 years of the date of
payment, from an independent accounting firm or legal representative with a location in the United States stating that the firm or
representative has reviewed the F" 's documentation with respect to all of its owners and debt holders identified in Regulations
section 1.1471 -3(d)(6)(iv)(A)(2), and that the FFI meets all the requirements to be an owner -documented FFI. The FFI identified in
Part I has also provided, or wilt provide, an FFI owner reporting statement of its owners that are specified U.S. persons and Form(s)
W-9, with applicable waivers.
Check box 24d if applicable (optional, see instructions).
d (3 1 certify that the entity identified on line 1 is a trust that does not have any contingent beneficiaries or designated classes with unidentified
beneficiaries.
Part
XI
Restricted Distributor
25a [3 (All restricted distributors check here) I certify that the entity identified in Part I:
• Operates as a distributor with respect to debt or equity interests of the restricted fund with respect to which this form is furnished;
• Provides investment services to at least 30 customers unrelated to each other and less than half of its customers are related to each
other; • Is required to perform AML due diligence procedures under the anti -money laundering laws of its country of organization
(which is an FATFcompliantjurisdiction);
•Operates solely in its country of incorporation or organization, has no fixed place of business outside of that country, and has the
same country of Incorporation or organization as ati members of its affiliated group, if any;
• Does not solicit customers outside its country of incorporation or organization;
• Has no more than $175 million in total- assets under management and no more than $7 million in gross revenue on its income
statement for the most recent accounting year;
• Is not a member of an expanded affiliated group that has more than $500 million in total assets under management or more than $20
million in gross revenue for its most recent accounting year on a combined or consolidated income statement; and
• Does not distribute any debt or securities of the restricted fund to specified U.S. persons, passive NFFEs with one or more substantial
U.S. owners, or nonparticipating FFIs.
Check box 25b or 25c, whichever applies.
I further certify that with respect to all sales of debt or equity interests in the restricted fund with respect to which this form is furnished that are made after
December 31, 2011, the entity identified in Part I:
b [3 Has been bound by a distribution agreement that contained a general prohibition on the sale of debt or securities to U.S. entities
and U.S. resident individuals and is currently bound by a distribution agreement that contains a prohibition of the sale of debt or
securities to any specified U.S. person, passive NFFE with one or more substantial U.S. owners, or nonparticipating FFI.
C [3 Is currently bound by a distribution agreement that contains a prohibition on the sale of debt or securities to any specified U.S.
person, passive NFFE with one or more substantial U.S. owners, or nonparticipating FH and, for all sales made prior to the time that
such a restriction was included in its distribution agreement, has reviewed all accounts related to such sales in accordance with the
procedures identified in Regulations section 1.1471-40 applicable to preexisting accounts and has redeemed or retired any, or caused
the restricted fund to transfer the securities to a distributor that is a participating FFI or reporting Model I FFI securities which were
sold to specified U.S. persons, passive NFFEs with one or more substantial U.S. owners, or nonparticipating FAS.
•
Form W-8BEN-E (Rev. 7-2017)
Nonreporting IGA FFI
26 certify that the entity identified In Part t
Part
Form W-8BEN-E (Roy. 7-2017)
Page 5
Form W-8BEN-E (Rev. 7-2017)
Form W-8BEN-E (Rev. 7-2017)
• Meets the requirements to be considered a nonreporting financial institution pursuant to an applicable IGA between the United
States and
is treated as a
. The applicable IGA is a Model I IGA ora Model 2'GA; and
under the provisions of the applicable IGA or Treasury regulations
(if applicable, see instructions);
• If you are a trustee documented trust or a sponsored entity, provide the name of the trustee or sponsor
The trustee is: o U.S. Foreign
Pa rt
Foreign Government, Government of a U.S. Possession, or Foreign Central Bank of Issue
27
Part
XIV
certify that the entity identified in Part t is the beneficial owner of the payment, and is not engaged in commercial financial
activities of a
type engaged in by an insurance company, custodial institution, or depository institution with respect to the payments, accounts,
or obligations for which this form Is submitted (except as permitted in Regulations section 11471-6(
International Organization
Check box 28a or 28b, whichever applies.
28a certify that the entity identified in Part is an intemational organization described in section 7701 8). b 1 certify that
the entity identified in Part I:
• Is comprised primarily of foreign governments;
• Is recognized as an intergovemmental or supranational organization under a foreign law similar to the International Organizations Immunities
Act or that has in effect a headquarters agreement with a foreign government;
• The benefit of the entity's income does not inure to any private person; and
• Is the beneficial owner of the payment and is not engaged in commercial financial activities of a type engaged in by an insurance
company, custodial institution, or depository institution with respect to the payments, accounts, or obligations for which this form is
submitted (except as permitted in Regulations section 1.1471 -6(h)(2)).
Part
XV
Exempt Retirement Plans
Check box 29a, b, c, d, e, or f, whichever applies.
29a [3 1 certify that the entity identified In Part I:
• Is established in a country with which the United States has an income tax treaty in force (see Part III if claiming treaty benefits); e Is
operated principally to administer or provide pension or retirement benefits; and
• Is entitled to treaty benefits on income that the fund derives from U.S. sources (or would be entitled to benefits if it derived any such
income). as a resident of the other country which satisfies any applicable limitation on benefits requirement.
6 1 certify that the entity identified in Part I:
• Is organized for the provision of retirement, disability, or death benefits (or any combination thereof) to beneficiaries that are former
employees of one or more employers in consideration for services rendered;
• No single beneficiary has a right to more than 5% of the FFI's assets;
• Is subject to government regulation and provides annual information reporting about its beneficiaries to the relevant tax authorities
in the country in which the fund is established or operated; and
(1) Is generally exempt from tax on investment income under the laws of the country in which it is established or operates due to
its status as a retirement or pension plan;
(ii) Receives at least 50% of its total contributions from sponsoring employers (disregarding transfers of assets from other plans
described in this part, retirement and pension accounts described in an applicable Model I or Model 2 IGA, other retirement
funds described in an applicable Model 1 or Model 2 IGA, or accounts described in Regulations section 1.1471-5(b)(2)(t)(A));
(iii) Either does not permit or penalizes distributions or withdrawals made before the occurrence of specified events related to
retirement, disability, or death (except rollover distributions to accounts described in Regulations section 1.1471 -5(b)(2)(i)(A)
(referring to retirement and pension accounts), to retirement and pension accounts described in an applicable Model 1 or Model
2 IGA, or to other retirement funds described in this part or in an applicable Model 1 or Model 2 IGA); or
(iv) Limits contributions by employees to the fund by reference to earned income of the employee or may not exceed 550,000
annually. c 1 certify that the entity identified in Part I:
Form W-8BEN-E (Rev. 7-2017)
• Is organized for the provision of retirement, disability, or death benefits (or any combination thereof) to beneficiaries that are former
employees of one or more employers in consideration for services rendered;
• Has fewer than 50 participants;
• Is sponsored by one or more employers each of which is not an investment entity or passive NFFE;
• Employee and employer contributions to the fund (disregarding transfers of assets from Other plans described in this part, retirement
and pension accounts described in an applicable Model 1 or Model 2 IGA, or accounts described in Regulations section 1 .1471
5(b)(2)()(A)) are limited by reference to earned income and compensation of the employee, respectively;
• Participants that are not residents of the country in which the fund is established or operated are not entitled to more than 20% of the fund's assets;
and • Is subject to government regulation and provides annual information reporting about its beneficiaries to the relevant tax authorities in the
country in which the fund is established or operates.
Pa rt
XV
Exempt Retirement Plans (continued)
d certify that the entity Identified in Part I is formed pursuant to a pension plan that would meet the requirements of section 401 (a), other
than the requirement that the plan be funded by a trust created or organized in the United States.
e U 'certify that the entity identified in Part 1 is established exclusively to eam income for the benefit of one or more retirement funds
described in this part or in an applicable Model 1 or Model 2 IGA, or accounts described in Regulations section 1.1471 -5(b)(2)(i)(A)
(referring to retirement and pension accounts), or retirement and pension accounts described in an applicable Model 1 or Model 2' GA.
f 1 certify that the entity identified in Part I:
• Is established and sponsored by a foreign government, international organization, central bank of issue, or government of a U.S.
possession (each as defined in Regulations section 1 .1471-6) or an exempt beneficial owner described in an applicable Model 1 or
Model 2 IGA to provide retirement, disability, or death benefits to beneficiaries or participants that are current or former employees
of the sponsor (or persons designated by such employees); or
• Is established and sponsored by a foreign government, international organization, central bank of issue, or government of a U.S.
possession (each as defined in Regulations section 1.1471-6) or an exempt beneficiat owner described in an applicable Model 1 or
Model 21GA to provide retirement, disability, or death benefits to beneficiaries or participants that are not current or former employees
of such sponsor, but are in consideration of personal services performed for the sponsor.
Part xvt
Entity Wholly Owned by Exempt Beneficial Owners
30 11 certify that the entity Identified In Part I:
• Is an FFI solely because it is an investment entity;
• Each direct holder of an equity interest in the investment entity is an exempt beneficial owner described in Regulations section
an 1.1471-6 or in applicable Model 1 or Model 2 IGA;
Each direct holder of a debt interest in the investment entity is either a depository institution (with respect to a loan made to such
• ntity) or an exempt beneficial owner described in Regulations section 1.1471-6 or an applicable Model 1 or Model 2'GA.
Has provided an owner reporting statement that contains the name, address, TIN (if any), chapter 4 status, and a description of the type of
• ocumentation provided to the withholding agent for every person that owns a debt interest constituting a financial account or direct equity interest
the entity; and
Has provided documentation establishing that every owner of the entity is an entity described in Regulations section 1.1471-6(b),
• (c), (d), (e), and/or (g) without regard to whether such owners are beneficial owners.
(f)
Part
Territory Financial Institution
31 1 certify that the entity identified In Part I is a financial Institution (other than an investment entity) that is incorporated or organized under the
laws of a ossession of the United States.
Part XVIII
Excepted Nonfinancial Group Entity
32 I certify that the entity identified In Part I:
• Is a holding company, treasury center, or captive finance company and substantially all of the entity's activities are functions described
in
Regulations section 1.471-5(0(5)((0) through (E);
• Is a member of a nonfinancial group described in Regulations section 1.1471-5(e)(5)(i)(B);
• Is not a depository or custodial institution (other than for members of the entity's expanded affiliated group); and
• Does not function (or hold itself out) as an investment fund, such as a private equity fund, venture capital fund, leveraged buyout
fund, or any investment vehicle with an investment strategy to acquire or fund companies and then hold interests in those companies
as capital assets for investment purposes.
Form W-8BEN-E (Rev. 7-2017)
Form W-SBEN-E (Rev. 7-2017)
Part XIX
Excepted Nonfinancial Start -Up Company
33 1 certify that the entity identified in Part I:
• Was formed on (or, in the case of a new line of business, the date of board resolution approving the new line of business)
Part
XX
(date must be legs than 24 months prior to date of payment);
• Is not yet operating a business and has no prior operating history or is investing capital in assets with the intent to operate a new line
of business other than that of a financial institution or passive NFFE;
• Is Investing capital into assets with the intent to operate a business other than that of a financial institution; and
• Does not function (or hold itself out) as an investment fund, such as a private equity fund, venture capital fund, leveraged buyout fund, or any
investment vehicle whose purpose is to acquire or fund companies and then hold interests in those companies as capital assets for investment
purposes.
Excepted Nonfinancial Entity in Liquidation or Bankruptcy
34
1 certify that the entity.identified in Part I:
• Filed a plan of liquidation, filed a plan of reorganization, or filed for bankruptcy on
• During the past 5 years has not been engaged in business as a financial institution or acted as a passive NFFE;
• Is either liquidating or emerging from a reorganization or bankruptcy with the intent to continue or recommence operations as a nonfinancial entity;
and
• Has, or will provide, documentary evidence such as a bankruptcy filing or other public documentation that supports its claim if it
remains in bankruptcy or liquidation for more than 3 years.
Form W-8BEN-E (Rev. 7-2017)
Part
501 (c) Organization
Form W-8BEN-E (Rev. 7-2017)
35 (3 1 certify that the entity identified in Part I is a 501(c) organization that:
• Has been issued a determination letter from the IRS that is currently in effect concluding that the payee is a section 501 (c) organization
that is dated ; or
•Has provided a copy of an opinion from U.S. counsel certifying that the payee is a section 501 (c) organization (without regard to
whether the payee is a foreign private foundation).
Part
Nonprofit Organization
36 certify that the entity identified In Part I is a nonprofit organization that meets the following requirements.
. fhe entity is established and maintained in its country of residence exclusively for religious, charitable, scientific, artistic, cultural or educational
purposes; The entity is exempt from Income tax in its country of residence;
The entity has no shareholders or members who have a proprietary or beneficial interest in its income or assets;
' Neither the applicable laws of the entity's country of residence nor the entity's formation documents permit any income or assets of
• le entity be distributed to, or applied for the benefit of, a private person or noncharitable entity other than pursuant to the conduct
to the entity's charitable activities or as payment of reasonable compensation for services rendered or payment representing the fair
arket value of property which the entity has purchased; and
The applicable laws of the entity's country of residence or the entity's formation documents require that, upon the entity's liquidation
• • dissolution, all of its assets be distributed to an entity that is a foreign government, an integral part of a foreign government, a
oentrolled 'ritity a foreign government, or another organization that is described in this part or escheats to the government of the
itity's country of residence or any political subdivision thereof.
Part
Publicly Traded NFFE or NFFE Affiliate of a Publicly Traded Corporation
Check box 37a or 37b, whichever applies.
37a I certify that:
•The entity Identified In Part I is a foreign corporation that is not a financial institution; and
•The stock of such corporation is regularly traded on one or more established securities markets,
including (name one securities exchange upon which the stock is regularly traded).
b I certify that:
•The entity identified in Part I is a foreign corporation that is not a financial institution;
• The entity identified in Part! is a member of the same expanded affiliated group as an entity the stock of which is regularly traded on
an established securities market;
• The name of the entity, the stock of which is regularly traded on an established securities market, is ; and
. • The name of the securities market on which the stock Is regularly traded Is
Part XX•V Excepted Territory NFFE
38 I certify that:
• The entity Identified In Part IIs an entity that Is organized In a possession of the United States;
•The entity identified In Part 1:
(i) Does not accept deposits in the ordinary course of a banking or similar business;
(ii) Does not hold, as a substantial portion of its business, financial assets for the account of others; or
(iii) Is not an insurance company (or the holding company of an insurance company) that issues or is obligated to make payments
with respect to a financial account; and
•AII of the owners of the entity identified in Part I are bona fide residents of the possession in which the NFFE is organized or
incorporated.
Part
XXV
Active NFFE
39 [Z) I certify that:
• The entity identified in Part I is a foreign entity that is not a financial institution;
• Less than 50% of such entity's gross income for the preceding calendar year is passive income; and
Form W-8BEN-E (Rev. 7-2017)
Form W-8BEN•E(Rev.7-2017)
• Less than 50% of the assets held by such entity are assets that produce or are held for the production of passive income (calculated
as a weighted average of the percentage of passive assets measured quarterly) (see instructions for the definition of passive income).
Part xxvl
Passive NFFE
40a (3 1 certify that the entity identified in Part I is a foreign entity that is not a financial institution (other than an investment entity organized in a possession
of the United States) and is not certifying its status as a publicly traded NFFE (or affiliate), excepted territory NFFE, active NFFE, direct reporting
NFFE, or sponsored direct reporting NFFE.
Check box 40b or 400, whichever applies.
b (3 1 further certify that the entity identified in Part I has no substantial U.S. owners (or, if applicable, no controlling U.S. persons); or c I
further certify that the entity identified in Part f has provided the name, address, and TIN of each substantial U.S. owner (or, if applicable,
contrOling U.S.. persop). of the NFFE in Part XXIX.
Part xxvll
41
Page 8
Excepted Inter -Affiliate FFI
1 certify that the entity identified in Part 1:
• Is a member of an expanded affiliated group;
• Does not maintain financial accounts (other than accounts maintained for members of its expanded affiliated group);
• Does not make withholdabte payments to any person other than to members of its expanded affiliated group;
• Does not hold an account (other than depository accounts in the country in which the entity is operating to pay for expenses) with or
receive payments from any withholding agent other than a member of its expanded affiliated group; and
• Has not agreed to report under Regulations section 1.1471-4(d)(2)(ii)(C) or otherwise act as an agent for chapter 4 purposes on behalf of any financial
Institution, including a member of its expanded affiliated group.
Part
xxvllt
Sponsored Direct Reporting NFFE (see instructions for when this is permitted)
42 Name of sponsoring entity:
43 [3 1 certify that the entity identified in Part IIs a direct reporting NFFE that is sponsored by the entity identified on line 42.
Part
Substantial U.S. Owners of Passive NFFE
As required by Part XXVI, provide the name, address, and TIN of each substantial U.S. owner of the NFFE. Please see the instructions for a
definition of substantial US. owner. If providing the form to an FFI treated as a reporting Model 1 FFI or reporting Model 2 FFI, an NFFE may
also use this part for reporting its controlling U.S. persons under an applicable IGA.
Name Address TIN
Form W-8BEN-E (Rev.7-2017)
Form W-8BEN E (Rev. 7-2017)
Certification
Part
XXX
Under penalties of perjury, l declare that I have examined the Information on this form and to the best of my knowledge and belief It Is true, correct, and complete. 1 further certify
under penalties of perjury that:
• The entity identified on line 1 of this form is the beneficial oWner of all the income to which this form relates, is using this form to certify its status for
chapter 4 purposes, or is a merchant submitting this form for purposes of section 6050W;
• The entity identified on line 1 of this form is not a U.S. person;
• The income to which this form relates is: (a) not effectively connected with the conduct of a trade or business in the United States, (b) effectively
connected but is not subject to tax under an income tax treaty, or (c) the partner's share of a partnership's effectively connected income; and
• For broker transactions or barter exchanges, the beneficial owner is an exempt foreign person as defined in the instructions.
Furthermore, I authorize this form to be provided to any withholding agent that has control, receipt, or custody of the income of which the entity on line 1 is the
beneficial owner or any withholding agent that can disburse or make payments of the income of which the entity on line 1 is the beneficial owner.
I agree that I will submit a new form within 30 days if any certification on thls form becomes incorrect.
Sign Here
Print Name
Elizabeth Harris
to sign for beneficial owner Print Name
'H tot cll3S€#rlegimlet the esittyi ftreteflfiat1e# til few:
Date (MM-DD-YYYY)
Form W-8BEN-E (Rev. 7-2017)