End User License Agreement

Last Updated: May 2024

BY DOWNLOADING, INSTALLING, USING OR COPYING ANY PART OF THE LICENSED SOFTWARE, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE PERSON ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT HE OR SHE (1) HAS FULL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT; AND (2) HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT. BY CLICKING THROUGH OR OTHERWISE ACCEPTING THIS AGREEMENT ELECTRONICALLY, INCLUDING BY DOWNLOADING, INSTALLING, USING OR COPYING THE LICENSED SOFTWARE, CUSTOMER IS CONSENTING TO THE USE OF ELECTRONIC DELIVERY OF DOCUMENTS AND AN ELECTRONIC SIGNATURE, AND AGREES THAT SUCH ELECTRONIC SIGNATURE IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BINDING TO THE SAME EXTENT AS ORIGINAL SIGNATURES.

This End User License Agreement (the “Agreement”) is entered into by and between Tanium and the end user customer (hereinafter “Customer”), to permit Customer’s use of the Licensed Software and Support, each as defined herein. The “Effective Date” of the Agreement and license(s) granted under this Agreement will be the earlier of the date set forth in the schedule(s) entered into by Tanium and Customer or purchase order(s) accepted by Tanium that describe the Licensed Software and any Support to be acquired by Customer (each a “Schedule”), or the date on which Tanium initially delivers a license key that allows Customer to download or access the Licensed Software. “Tanium” means the Tanium entity listed or identified on the current approved Tanium-provided quote for the Licensed Software and Support (the “Quote”), or otherwise communicated to Customer by Tanium. Tanium and Customer may be referred to collectively as the “parties” or individually as “party.” The Agreement consists of two parts: PART 1 – General Terms; and PART 2 – Country-specific Terms. The terms of PART 2 may replace or modify those of PART 1.

PART 1 – General Terms

1. License; Ownership; Data.

1.1   License. Subject to the terms and conditions of this Agreement, Tanium grants Customer a revocable, non-transferable, non-exclusive, non-sublicensable license (“License”) during the applicable Licensed Term to download, copy and use the proprietary software in object code form and related proprietary components, all as made Generally Available by Tanium and provided by or on behalf of Tanium to Customer (the “Licensed Software”) for Customer’s internal use only and only in accordance with the Documentation. The term “Licensed Software” will include Tanium’s then-current technical documentation labeled as “User Guides” and made available by Tanium in English at https://help.tanium.com/ for use with the Licensed Software, as updated from time to time by Tanium (the “Documentation”), and any updates, bug fixes, APIs, sensors, scripts, releases, ‘Saved Questions’ and versions (collectively, “Enhancements”) that are made Generally Available by Tanium and provided by Tanium to Customer. During the Licensed Term, Tanium may also provide Customer with non-GA materials including ‘Labs’ or ‘Community’ content, sensors, scripts, releases, and ‘Saved Questions’ (the “Support Materials”). Customer may use the Support Materials during the applicable Licensed Term only as needed for Customer to use the Licensed Software. The term “Generally Available” or “GA” means a production version made available to Tanium’s customer base, as updated by Tanium from time to time.

1.2   Ownership.The Licensed Software and Support Materials are licensed to Customer, not sold. The Licensed Software, Support Materials and Support provided by Tanium (“Tanium Offerings”) contain material that is protected by intellectual property law and by international treaty provisions. Except the specific rights expressly granted to Customer under this Agreement, Tanium retains all rights, title and interest (including any and all intellectual property rights) to the Tanium Offerings and any derivative works or modifications made to the Tanium Offerings, and to any data generated by or derived from Customer’s usage of the Tanium Offerings.

1.3   License Metric. The Licensed Software is licensed on a per Managed OS Instance basis. A “Managed OS Instance” means a physical device or virtual machine where components of the Licensed Software can be installed, and where that device is capable of processing data. “Managed OS Instances” include mobile/smart phone, diskless workstation, personal computer workstation, networked computer workstation, homeworker/teleworker, home-based system, file server, print server, e-mail server, internet gateway device, storage area network server, terminal servers, portable workstation connecting to a server or network, or container (host and/or constituent container). Certain Tanium modules may be licensed and charged on a per container basis, as more fully set forth in the Quote or Schedule. In the case of a virtual system, in addition to the virtual Managed OS Instance(s), the hypervisor is considered to be a single Managed OS Instance if the Licensed Software is installed at the hypervisor level.

1.4   Customer Personal Data. Customer determines which types of data, including Customer Personal Data (as defined in the Data Processing Addendum), is processed through Customer’s use of the Licensed Software and Support. To the extent that Tanium processes Customer Personal Data on behalf of Customer under this Agreement, Tanium will process such Customer Personal Data pursuant to the Data Processing Addendum found at https://www.tanium.com/data-processing-addendum/, which is hereby incorporated into and made a part of this Agreement. As between Customer and Tanium, this Section 1.4 states Tanium’s entire obligation with respect to Customer Personal Data.

1.5   Access to Cloud Features. Certain features of the Licensed Software may provide Customer with the option to access cloud-supported features from within the Licensed Software (“Cloud Features”). Customer understands and agrees that use of Cloud Features is optional, and Customer does so at its own risk. Tanium makes no warranties with respect to Cloud Features beyond the limited warranty described in Section 7.1 (Limited Warranty).

2. Restrictions.

Customer’s license to the Licensed Software is subject to the following license conditions and restrictions:

2.1   Compliance with Laws. Customer’s use of the Tanium Offerings must be compliant with this Agreement and all applicable local, state, federal and international laws, regulations, and conventions, including, without limitation, those related to data privacy, data transfer and the exportation of technical or personal data (collectively “Applicable Laws”).

2.2 Only for Customer’s Benefit. Except to the extent expressly permitted by this Agreement, Customer must not use or permit the Licensed Software or Support Materials to be used in any manner for anyone’s benefit other than Customer. Except to the extent expressly permitted by this Agreement, Customer must not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Licensed Software or Support Materials, or permit any third party to use or copy the Licensed Software or Support Materials. Customer must not operate a service bureau or other similar service for the benefit of third parties using the Licensed Software or Support Materials. Customer must purchase each license it intends to use. Use of and access to the Licensed Software and Support Materials is permitted only by Customer-designated personnel.

2.3 Limitations on Copying and Distribution.    Except as expressly set forth in this Agreement, Customer must not copy or distribute the Licensed Software or Support Materials, whether directly or indirectly. Customer may make a single copy of the Licensed Software and Support Materials for backup and archival purposes.

2.4   Limitations on Reverse Engineering and Modification. Except to the extent such a limitation is expressly prohibited by Applicable Laws, Customer must not reverse engineer, decompile, disassemble, modify, or create derivative works of the Licensed Software or Support Materials whether directly or indirectly. Customer will notify Tanium promptly upon learning of any attempt by anyone to misuse, misappropriate, copy, modify, derive, or reverse engineer any Licensed Software or Support Materials, and Customer shall reasonably cooperate and assist Tanium in discovering, preventing, and recovering damages for any such misappropriation, copying, modification, derivation, or reverse engineering.

2.5   Proprietary Notices. Customer must not remove any proprietary notices (e.g., copyright and trademark notices) from the Licensed Software or Support Materials. Customer must reproduce the copyright and all other proprietary notices displayed on the Licensed Software or Support Materials on each permitted copy.

2.6 Use in Accordance with Documentation. All use of the Licensed Software shall be in accordance with the Documentation and this Agreement.

2.7 Tanium’s Intellectual Property. Customer must not use the Tanium Offerings, or other Tanium Confidential Information, whether directly or indirectly through a third party, to (a) contest the validity of any Tanium intellectual property, including the Licensed Software, (b) to compete with Tanium, or (c) for conducting any benchmarking or competitive analysis of Tanium products or services.

3. Affiliates and Managing Parties.

The term “Affiliate” means an entity that is controlled by, controls, or is under common control of a party, where “control” means the ownership, in the case of a corporation, of more than fifty percent (50%) of the voting securities in such corporation or, in the case of any other entity, the ownership of a majority of the beneficial or voting interest of such entity. Customer may allow its Affiliate(s) to use the Licensed Software and Support Materials provided that (a) the Affiliate only uses the Licensed Software and Support Materials for Customer’s or Affiliate’s internal business purposes and up to the authorized number of Managed OS Instances in accordance with the terms and conditions of this Agreement and (b) Customer is responsible for and remains liable for the Affiliate’s use of the Licensed Software and Support Materials in compliance with the terms and conditions of this Agreement. If Customer enters into a contract with a third party that manages Customer’s information technology resources (“Managing Party”), Customer may allow its Managing Party to use the Licensed Software and Support Materials on Customer’s Managed OS Instances, provided that (i) the Managing Party only uses the Licensed Software for Customer’s internal business purposes and not for the benefit of any third party or for the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this Agreement, and (iii) Customer is responsible for and remains liable for the Managing Party’s use of the Licensed Software and Support Materials in compliance with the terms and conditions of this Agreement. In addition, Customer shall ensure that its personnel comply with the terms of this Agreement.

4. Term and Termination.

4.1 Term. Unless otherwise agreed in a Schedule, the License(s) will commence upon the initial delivery of the license keys that allow Customer to download or access the Licensed Software (“Delivery”) and will continue for the term of the applicable License(s) or until this Agreement is terminated as provided in this Section, whichever occurs first (the “Initial Licensed Term”). The Initial Licensed Term will be as set forth in the Schedule.

4.2 Automatic Renewal. When expressly stated in the applicable Schedule, the License will automatically renew after the Initial Licensed Term for successive one (1) year terms (each, a “Renewal Term”), unless Customer notifies Tanium by written notice (email is acceptable) at least thirty (30) days before the beginning of a Renewal Term of its intent not to renew. “Licensed Term” means the Initial Licensed Term and any applicable Renewal Terms.

4.3 Termination. Either party may terminate this Agreement on written notice to the other party if the other party is in material breach of its obligations hereunder and fails to cure the material breach within thirty (30) days of such written notice, or within five (5) days of such written notice in the case of Customer’s breach of Sections 1 (License) or 2 (Restrictions). Notwithstanding the foregoing, if a material failure is not curable, the non-defaulting party may immediately terminate this Agreement upon written notice to the other party. In addition, if Customer fails to make payments as required hereunder and such failure is not cured within fifteen (15) days of written notice from Tanium, Tanium may immediately cease performing Support Services. Subject to Applicable Laws, either party may, in its sole discretion, elect to terminate this Agreement on written notice to the other party upon the bankruptcy or insolvency of the other party or upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other party. Upon any termination or expiration of this Agreement, the Licenses granted in Section 1 (License) will automatically terminate and Customer will have no further right to possess or use the Licensed Software. Unless otherwise stated in this Agreement, termination of the Agreement or any Schedule will not entitle Customer to a refund of any fees. Tanium reserves the right to seek all remedies available at law and in equity for Customer’s material breach of this Agreement.

5.Fees and Expenses; Payment Terms; Taxes.

5.1   Fees and Expenses. Notwithstanding anything else to the contrary, if Customer orders from a Tanium authorized business partner (“Reseller”), final terms of the transaction (e.g., pricing, discounts, fees, payments, and taxes) are solely subject to the agreement between Customer and its Reseller of choice. This Agreement will govern Tanium’s provision of and Customer’s license to the Licensed Software and Support whether Customer orders the Licensed Software and Support from Tanium or a Reseller. Unless Customer orders directly from a Reseller, Customer will pay the Licensed Software and Support fees directly to Tanium and Tanium will fulfill all orders. The parties will enter into a schedule(s) or purchase order(s) that describe the Licensed Software and/or Support to be acquired by Customer (each a “Schedule”). This Agreement applies to any Schedule that references this Agreement. When a purchase order will be utilized as a Schedule, the purchase order must reference and be made pursuant to this Agreement and the applicable Quote, and Customer must copy the sales representative identified on the applicable Quote. Notwithstanding anything else to the contrary, any terms and conditions in the purchase order that conflict or are inconsistent with the Quote or this Agreement will have no force or effect. The purchase order will not add or remove terms from the Quote or this Agreement. Tanium further reserves the right to expressly reject any purchase order that does not comport to the requirements of this Section.

5.2   Payment Terms. Unless otherwise set forth in a Schedule: (a) fees for Licenses and Support will be billed, due, and payable fully in advance thirty (30) days after Customer’s receipt of an invoice. Payments will be made by electronic transfer to a bank account designated by Tanium on the invoice in the amount of fees for the Licensed Software and Support ordered (less any applicable credits and deductions and plus any applicable taxes, shipping, and other charges). The effective date of payment shall be the date on which the entire amount due is credited to Tanium’s bank account or the instrument enabling immediate collection of the entire amount due is received. All payments not made by Customer when due will be subject to late charges of the lesser of (i) one percent (1%) per month of the overdue amount or (ii) the maximum amount permitted by law. Customer shall pay all court costs, fees, expenses, and reasonable attorneys’ fees incurred by Tanium in collecting delinquent fees.

5.3  Taxes.

5.3.1   All amounts payable by Customer to Tanium under this Agreement are exclusive of any taxes, levies, or duties, of any nature, that may be assessed by any jurisdiction (collectively “Taxes”). Customer is responsible for paying all Taxes including sales, use, excise, import or export values or fees, stamp duties, foreign withholding (if applicable to paying jurisdiction), value-added, personal property, or any other tax resulting from the delivery, possession, or use of the Licensed Software, purchases of hardware, or performance of any Support hereunder in the execution or performance of this Agreement. Taxes do not include any taxes payable by Tanium for its employees or for its net income.

5.3.2    All Licensed Software will be delivered and accessed electronically. In conjunction with the billing, collection and payment of any Taxes, Customer must provide Tanium with a physical address of the download site for the Licensed Software. This address will be used as the “shipped to address” on all invoices. Customer will pay all Taxes relating to, or under this Agreement, unless Customer is exempt from the payment of such Taxes and provides Tanium with evidence of valid exemption certificate(s). If its tax status changes, Customer must notify Tanium in writing (email is sufficient) at least 30 days in advance of Customer’s next billing cycle. If Tanium becomes entitled to a refund or credit of Taxes previously paid by Customer pursuant to this Section, any such refunded or credited amounts (including any interest received thereon) shall be promptly granted as a credit memo against Customer’s account or, upon Customer’s request, paid over to Customer.

5.3.3    Unless both Customer and Tanium agree otherwise, Customer will make no deduction from any amounts owed to Tanium for any un-invoiced taxes of any type. Subject to Applicable Laws, Tanium will cooperate with Customer to reduce the amount of applicable withholding taxes and Customer will not take any action that is prejudicial to obtaining an available tax exemption by Tanium. Upon Customer’s written request, Tanium will provide Customer with written proof that it has made all registrations and reports required for these tax payments. If Tanium claims a tax exemption that may affect any obligations of Customer, Tanium will disclose this exemption to Customer on a timely basis and provide Customer with all exemption documentation requested by Customer. If Customer is required to withhold amounts from any payments due to Tanium hereunder as prescribed by Applicable Laws, Customer will make such withholding, remit such amounts to the appropriate taxing authorities. Customer agrees to increase the amount payable as necessary so that after making all required deductions and withholdings, Tanium receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer will indemnify Tanium from and against any disputed taxes, including interest and penalties, on the Licensed Software or Support, by the taxing authorities. If the taxation of the item(s) is disputed by the taxing authorities, Tanium will notify Customer, if practical, to work with Customer and the taxing authorities to minimize any potential deficiencies.

6. Support; Enterprise Supplemental Support and Training.

6.1   Support. The term “Support” means, collectively, the Support Services, Enterprise Supplemental Support, Training, and any other services acquired by Customer from Tanium, all of which are provided in accordance with, and governed by, the terms and conditions of this Agreement. The type, term, and level of Support are as set forth in the applicable Schedule. If Customer has a current Support Services entitlement or a subscription license governed by this Agreement, then Tanium will provide Customer with the support and maintenance services described in Section 6.2 (the “Support Services”) during the term specified in the Schedule (the “Support Term”). Once the Support Term has expired, Customer has no further right to receive any Support Services. All Support is provided subject to the terms and conditions of this Agreement. Geographic limitations may apply. Unless otherwise agreed upon in writing by the parties, Support Services will be provided in English only.

6.2   Support Services.Unless otherwise set forth in the Schedule, Tanium will provide the following Support Services to Customer:

6.2.1 General. During the Support Term, Tanium shall provide Customer with reasonable support for the person(s) designated by Customer that may contact Tanium for Support Services (“Technical Support Contact(s)”). Customer may contact Tanium for Support Services Monday through Friday, 7 a.m. to 7 p.m. Pacific Standard Time, excluding Tanium holidays. Tanium shall use good faith efforts to work with Customer during Customer’s normal business hours in the time zone in which Customer is located to resolve any issues raised by Customer. Customer may designate up to a maximum of two (2) Technical Support Contacts and may change its designation of Technical Support Contact(s) upon written notice to Tanium.

6.2.2   Contacting Tanium. Customer’s Technical Support Contact(s) may contact Tanium for Support Services by submitting a request via the internet-based support platform, which requires registration to use.

6.2.3   Customer’s Obligations. Customer is responsible for: (a) preparing and maintaining their systems (e.g., multi- factor authentication) and facilities in accordance with the Documentation and specifications of the appropriate suppliers; (b) implementing all Enhancements as they are released; (c) securing all required permits, inspections, and licenses necessary to use the Licensed Software and Support and (d) determining whether the Licensed Software meets its business needs. Customer shall be solely responsible for maintaining all necessary backup and recovery procedures to prevent loss of its data. Customer acknowledges and agrees that Customer is solely responsible for the function, performance, and results achieved in using or accessing the Support Materials that Tanium may make available to Customer in connection with Support.

6.2.4  Third-Party Support.  Notwithstanding anything else to the contrary in this Agreement, if Customer enters into an agreement with a Reseller under which the Reseller will provide support to Customer for the Licensed Software (“Third-Party Support”), Customer must contact the Reseller, and not Tanium, for support. Customer acknowledges that (i) all terms and conditions related to Third-Party Support are solely subject to the agreement between Customer and the Reseller; and (ii) Tanium has no responsibility or liability for Third-Party Support.

6.2.5  Supported Versions.  Tanium will provide Support Services for the most current version of the Licensed Software and any prior versions expressly identified in the Documentation as being supported by Tanium (“Supported Versions”). Support Services for non-Supported Versions may be provided by Tanium in its sole discretion on an “as-is” basis without warranty of any kind.

6.3 Enterprise Supplemental Support and Training. Enterprise Supplemental Support may be purchased by Customer and provided by Tanium in accordance with Appendix A. Product training may also be purchased by Customer and provided by Tanium with respect to the Licensed Software in accordance with the training terms and conditions set forth in the applicable Schedule (“Training”).

7. Limited Warranty; Disclaimer; Integrations with Third-Party Software and Services.

7.1   Limited Warranty. During the Warranty Period, Tanium warrants that (a) the Licensed Software will operate in substantial conformity with the Documentation; and (b) it shall use commercially reasonable efforts to screen the Licensed Software prior to Delivery to Customer for viruses, Trojan horses, and other malicious code. The term “Warranty Period” means ninety (90) days from the Effective Date. If the Licensed Term is less than ninety (90) days, the Warranty Period will be for the length of the applicable Licensed Term. The foregoing warranties are solely for the benefit of Customer and Customer shall have no authority to extend such warranty to any third party. The sole and exclusive remedy of Customer, and the sole and exclusive liability of Tanium, for breach of the foregoing warranties in this Section, shall be to repair or replace the non-conforming Licensed Software, or if repair or replacement would, in Tanium’s opinion, be commercially unreasonable, then Tanium shall terminate the relevant licenses and refund to Customer the unused portion of prepaid license fees for such non-conforming Licensed Software. This warranty is contingent upon the proper installation and use of the Licensed Software as described in the Documentation and this Agreement; Tanium shall not be responsible for Customer’s use of the Licensed Software if not operated in a manner recommended in the Documentation. Any modification to the Licensed Software by Customer or any third party or failure by Customer to implement any Enhancements to the Licensed Software may void Tanium’s obligation to provide Support Services and Tanium’s warranties under this Section.

7.2   Additional Warranty. In addition, Tanium warrants that any Enterprise Supplemental Support and Training will be provided in a professional and workmanlike manner consistent with relevant industry standards. If Tanium breaches the foregoing warranty, Customer’s sole remedy will be to terminate the applicable Enterprise Supplemental Support and/or Training and receive a refund of any prepaid unused fees for such non-conforming Enterprise Supplemental Support and/or Training.

7.3  EXCEPT AS PROVIDED IN SECTION 7.1 AND 7.2, THE TANIUM OFFERINGS ARE PROVIDED ON AN “AS-IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE TANIUM OFFERINGS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. TANIUM DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR SUPPORT WILL MEET CUSTOMER’S REQUIREMENTS; THAT CUSTOMER’S USE OF THE LICENSED SOFTWARE OR SUPPORT WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS; THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS OR DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED. TANIUM DOES NOT PROVIDE WARRANTIES WITH RESPECT TO ANY NON-GA PRODUCTS, SCRIPTS, CONTENT, OR OTHER TECHNOLOGIES, INCLUDING THE SUPPORT MATERIALS AND ANY INFORMATION OR ADVICE PROVIDED BY TANIUM PERSONNEL IN THE COURSE OF PROVIDING SUPPORT. TANIUM HAS NO RESPONSIBILITY OR LIABILITY FOR ANY THIRD-PARTY PRODUCTS OR TECHNOLOGIES USED BY CUSTOMER WHETHER INDEPENDENTLY OR IN CONJUNCTION WITH THE LICENSED SOFTWARE.

7.4   Integrations with Third-Party Software and Services. The Licensed Software may contain features designed to integrate or interoperate with software or services offered by a third party (“Third Party Integrations”). Customer acknowledges that while Tanium will seek to offer and retain such features where commercially reasonable, Tanium reserves the right to remove or alter any such Licensed Software features as it deems necessary. If Customer elects to use a Third Party Integration, Customer (a) grants Tanium permission to allow the Third Party Integration or its provider to access Customer’s data and information pertinent to Customer’s usage of the Third Party Integration as appropriate for the Third Party Integration to interoperate with the Licensed Software, and (b) acknowledges and agrees that Tanium makes no representations or warranties, and disclaims all liability, with regard to any Third Party Integration, including the handling of Customer’s data by its provider.

8. Indemnities.

8.1.   Tanium Indemnities. If a third party claims that Customer’s licensed use of the Licensed Software in compliance with the terms of this Agreement (a) infringes a United States patent, copyright, or trademark, or (b) misappropriates a trade secret, Tanium, at its sole cost and expense, will defend Customer against any such claim, and indemnify Customer from any damages, liabilities, costs and expenses awarded by a court to the third party claiming infringement or set forth in a settlement agreed to by Tanium. If a claim of infringement under this Section occurs, or if Tanium determines a claim is likely to occur, Tanium will have the right, in its sole discretion, to: (i) procure for Customer the right or license to continue to use the Licensed Software; (ii) modify the Licensed Software to make it non-infringing, without loss of material functionality; or (iii) replace the Licensed Software with a functionally equivalent, non-infringing software or offering. If none of these remedies is reasonably available to Tanium, Tanium may, in its sole discretion, immediately terminate this Agreement and return the license fees paid by Customer for the infringing Licensed Software, prorated for use over the remaining unused Licensed Term. Notwithstanding the foregoing, Tanium shall have no obligation with respect to any claim of infringement that is based upon or arises out of (each of the following an “Excluded Claim”): (A) the use or combination of the Licensed Software with any third-party or Customer hardware, software, products, data or other materials; (B) modification or alteration of the Licensed Software by anyone other than Tanium; (C) Customer’s failure to implement any workaround that would have avoided the claim; (D) Customer’s use of the Licensed Software in breach of or excess of the rights granted in this Agreement; (E) any third-party components; or (F) a business method or process that is inherent to Customer’s business. The provisions of this Section state Customer’s sole and exclusive remedy and the sole and exclusive obligations and liability of Tanium and its suppliers for any claim of intellectual property infringement arising out of or relating to the Licensed Software and/or this Agreement and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.

8.2.   Customer Indemnities. Customer will indemnify, defend, and hold Tanium and its Affiliates and their officers, directors, agents, employees, advertisers, partners, contractors, suppliers, successors, and assigns harmless from any claim, demand, action, proceeding, judgment, or liability (including legal and other professional fees) from a third-party claim arising out of or related to an Excluded Claim.

8.3.   Indemnification Procedures. The party seeking indemnification under this Agreement shall promptly notify the indemnifying party in writing of such claim, permit the indemnifying party sole authority to control the defense or settlement of such claim, and provide the indemnifying party with reasonable assistance in connection therewith. The indemnified party may participate in the defense at its sole cost. The indemnifying party will not enter into any settlement agreeing to any injunctive relief, payment or admission of liability affecting the indemnified party without the indemnified party’s written consent.

9. Limitation of Liability.

9.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TANIUM OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER, ITS AFFILIATES OR ANY THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, COMPUTER FAILURE AND MALFUNCTION, COST OF REPLACEMENT GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, REGARDLESS OF THEORY OF LIABILITY AND EVEN IF TANIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 IN ANY CASE, THE MAXIMUM AGGREGATE LIABILITY OF TANIUM AND ITS LICENSORS AND SUPPLIERS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE LICENSED SOFTWARE OR SUPPORT GIVING RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM.

9.3 NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF ANY OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER CUSTOMER IS MADE AWARE OF THE CIRCUMSTANCES THAT RESULTED IN SUCH CLAIM. IN THE EVENT TANIUM MAKES A REFUND OR CREDIT UNDER THIS AGREEMENT, ANY SUCH MONIES REFUNDED OR CREDITED BY TANIUM WILL BE APPLIED TO THE MEASURE OF DAMAGES SUBSEQUENTLY AWARDED BY A COURT, IF ANY.

10. Confidentiality.

10.1 “Confidential Information” shall mean all information disclosed by one party or its Affiliates (“Disclosing Party”) to the other party or its Affiliates (“Recipient”) in connection with this Agreement, whether disclosed orally, in writing, or by electronic means, and which is either (a) marked “confidential” or “proprietary” or (b) information that a reasonable person under similar circumstances would understand to be confidential. Confidential Information includes, but is not limited to, the Licensed Software and Support Materials.

10.2 Confidential Information does not include information that: (a) is generally known to the public without any breach of any obligation on the part of Recipient or any of its Representatives; (b) is lawfully obtained by Recipient from a third party who has the right to disclose it; (c) was already known by Recipient at the time of the disclosure; or (d) is independently developed by Recipient without reference to any of Disclosing Party’s Confidential Information.

10.3 The parties agree: (a) not to use the Disclosing Party’s Confidential Information for any purpose other than as specified in this Agreement (subject, in all cases, to the rights granted to Tanium in Section 11.2), (b) to protect the Disclosing Party’s Confidential Information using the same degree of care with which it protects its own Confidential Information, but in no event less than reasonable care; and (c) not to disclose Disclosing Party’s Confidential Information to any third party, except to its Managing Party, its Affiliates and its and their directors, officers, employees, agents, contractors, and representatives with a need to know and who are subject to confidentiality obligations that are no less restrictive than the terms and conditions of this Agreement (“Representatives”). Recipient is responsible for any breach of this Section by any of its Representatives. If required to disclose Confidential Information by law or court order, to the extent permitted by such law or court order, Recipient will provide prompt written notice to allow the Disclosing Party to seek a protective order. Recipient will provide prompt written notice if it becomes aware of any unauthorized use or disclosure of Disclosing Party’s Confidential Information.

10.4 Recipient acknowledges that monetary damages may be an insufficient remedy for unauthorized disclosure of Confidential Information and that the Disclosing Party may seek any legally permitted relief to protect its Confidential Information.

10.5 Notwithstanding the foregoing, Customer acknowledges and agrees that Tanium may use Customer’s Confidential Information internally at Tanium for sales/support analytics and training. In the event the parties previously executed a non-disclosure agreement related to Customer’s prospective license of the Licensed Software or Support, the terms of this Section will supersede such non-disclosure agreement after the Effective Date.

11. Evaluation Software, Preview Software, and Feedback.

11.1   Evaluation Software. This Section only applies to Licensed Software provided by Tanium free of charge for evaluation or development (“Evaluation Software”). Subject to Section 2 (Restrictions), Tanium grants to Customer a non-transferable, non-exclusive limited license to use the Evaluation Software for its internal development, demonstration, evaluation, training, and testing only. The term of this license is for the term set forth in the applicable License Key Notice, or if no term is described, a period of thirty (30) days following Delivery of the Evaluation Software (“Evaluation Period”). Tanium may extend the Evaluation Period in writing at its discretion. Unless otherwise agreed in writing by Tanium, Customer agrees to use the Evaluation Software in a non-production environment. Customer bears the sole risk of using the Evaluation Software. TANIUM PROVIDES THE EVALUATION SOFTWARE TO CUSTOMER “AS-IS” AND GIVES NO REPRESENTATION, WARRANTY, INDEMNITY, GUARANTEE OR CONDITION OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM’S TOTAL AGGREGATE LIABILITY AND THAT OF ITS LICENSORS, SUPPLIERS, AND PARTNERS IS EXPRESSLY LIMITED TO FIVE HUNDRED DOLLARS ($500) FOR ANY AND ALL DAMAGES REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY. Because the Evaluation Software is provided “AS-IS,” Tanium may not provide Support for it. This Section supersedes any inconsistent term in the Agreement for purposes of the Evaluation Software.

11.2   Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Tanium with respect to its products and services, including the Licensed Software. Feedback is voluntary and Tanium is not required to hold it in confidence. Tanium may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer hereby grants Tanium a worldwide, irrevocable, non-exclusive, perpetual, royalty-free license, with the right to sublicense, to use the Feedback in connection with Tanium’s business, including enhancement of the Licensed Software.

11.3   Preview Software. . If any part of the Licensed Software released to Customer has been identified by Tanium as “Beta Software,” “Pre-release,” or a “Pilot” (collectively, “Preview Software”), then the provisions of Section 11.1 (Evaluation Software) will apply in addition to this Section 11.3. Customer is under no obligation to use any Preview Software; doing so is in Customer’s sole discretion. Because Preview Software can be at various stages of development, operation and use of the Preview Software may be unpredictable. Customer acknowledges and agrees that: (a) Preview Software has not been fully tested; (b) use or operation of Preview Software should not occur in a production environment; (c) Customer’s use of Preview Software will be for purposes of evaluating and testing new functionality and providing Feedback to Tanium; and (d) Customer will inform its personnel regarding the nature of the Preview Software. In addition, Tanium has no obligation to Customer to further develop or release the Preview Software or provide Support for the Preview Software. If Tanium releases another version of the Preview Software or upon notice from Tanium, Customer will return or destroy all prior version(s) or release(s) of the Preview Software that it received from Tanium.

12. Governing Law/Jurisdiction.

Except as set forth in PART 2, this Agreement will be governed by and construed in accordance with the substantive laws in force in the State of California, U.S.A. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply. Except as set forth in PART 2, the state or federal courts of competent jurisdiction located in San Francisco, California will have exclusive jurisdiction over all disputes relating to this Agreement.

13. General.

This Agreement (including PART 1 and PART 2 where applicable), together with the Data Processing Addendum, Documentation, Schedules and any exhibits attached hereto, constitutes the entire understanding and agreement between Tanium and Customer with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications, including without limitation the terms and conditions on any Customer purchase order, payment portal, or other document with respect to the subject matter of this Agreement (even where Tanium has not explicitly objected to them), all of which are merged in this Agreement. This Agreement is provided in English and the English version will govern over any translations. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties and specifically referencing this Agreement, and this Agreement shall supersede any non-disclosure agreement required to be signed by Tanium employees or contractors prior to accessing Customer facilities or systems. In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Tanium to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. Any notice or consent under this Agreement addressed to Tanium should be marked “Attention: Chief Legal Officer” and may be sent (a) to the address identified on the Quote, which will be considered delivered three (3) days after deposit in the mail (registered mail) or one (1) day after being sent by overnight courier, or (b) via email, to [email protected], which will be considered delivered when receipt is confirmed by Tanium. Any notice or consent under this Agreement addressed to Customer should be marked “Attention: Chief Legal Officer” and may be sent (i) to the address provided when purchasing the Licensed Software, which will be considered delivered three (3) days after deposit in the mail (registered mail) or one (1) day after being sent by overnight courier, or (ii) via email, to the email address provided by Customer when purchasing the Licensed Software, which will be considered delivered when receipt is confirmed by the recipient. There are no intended or implied third-party beneficiaries of this Agreement. The following provisions of PART 1 will survive any termination or expiration of this Agreement: Sections 1.2 (Ownership), 1.4 (Customer Personal Data), 2 (Restrictions), 4 (Term and Termination), 5 (Fees and Expenses; Payment Terms; Taxes), 9 (Limitation of Liability), 10 (Confidentiality), 11.2 (Feedback), 12 (Governing Law/Jurisdiction), 13 (General), 15 (U.S. Government Rights), 16 (Audit), 17 (Force Majeure), 18 (Construction), and Customer’s indemnity obligations hereunder. All provisions of PART 2 will survive any termination or expiration of this Agreement. Tanium may assign any of its rights or obligations hereunder as it deems necessary. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

14. Export or Import.

Customer acknowledges that the Licensed Software and Support, which contain encryption, are subject to the export, import, economic sanctions, and trade restriction laws, regulations and requirements of the United States and other countries including European Union regulations. Tanium will reasonably cooperate, in Tanium’s discretion, in assisting Customer with respect to an application for any required export or import licenses and approvals; however, Customer agrees and acknowledges that it is Customer’s ultimate responsibility to comply with all export and import laws and that Tanium has no further responsibility after the initial sale to Customer within the original country of sale, including Customer’s importation of the Licensed Software and Support into other countries. Without limiting the foregoing, Customer agrees that it will not export, re-export, re-transfer, or provide access to the Licensed Software and Support to any person, in any jurisdiction, or to any user that would create a licensing requirement under U.S. Export control and economic sanctions laws, regulations and requirements without first obtaining any such license. Customer will not export to, or use the Licensed Software and Support in, any country not supported by Tanium, including, but not limited to, embargoed and sanctioned countries as promulgated by the United States Government. Customer shall defend, indemnify, and hold harmless Tanium from and against any and all damages, fines, penalties, assessments, liabilities, costs, and expenses (including attorneys’ fees and expenses) arising out of or relating to any claim the Licensed Software and Support were imported, exported, accessed, or otherwise shipped or transported by Customer in violation of Applicable Laws, rules, and regulations as described in this Section.

15. U.S. Government Rights.

The Licensed Software is commercial computer software as described in DFARS 252.227-7014(a) (1) and FAR 2.101. If acquired by or on behalf of the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.

16. Audit.

During the term of this Agreement and for one (1) year thereafter, no more than once in any twelve (12) month period, Tanium may audit Customer’s use of the Licensed Software (“Audit). An Audit will generally consist of Customer providing a system-generated deployment report evidencing Customer’s deployment of the Licensed Software. Customer will reasonably cooperate with Tanium and any auditor retained by Tanium in the conduct of the Audit. Audits will be conducted during Customer’s normal business hours. Customer will immediately remit payment for any Licensed Software deployed in excess of the Licenses purchased by Customer under this Agreement.

17. Force Majeure.

Except for Customer’s payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments, or government instructions.

18. Construction.

This Agreement has been negotiated and approved by the parties and, notwithstanding any rule or maxim of law or construction to the contrary, any ambiguity or uncertainty will not be construed against either of the parties by reason of the authorship of any of the provisions of this Agreement.

PART 2 – Country-specific Terms

1.     For purposes of this PART 2, Customer is considered “Domiciled” at the physical address of the download site for the Licensed Software, as provided by Customer to Tanium for calculation of taxes.

2.     For Customers Domiciled in Germany, the following changes are made to the terms in PART 1:

2.1   Sections 2.2 and 2.4 of PART 1 are replaced with the following:

2.2 Only for Customer’s Benefit. Except to the extent expressly permitted by this Agreement, Customer shall not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Service or Support Materials, or directly or indirectly permit any third-party to use or copy the Service or Support Materials unless it is necessary for the use of the Service or Support Materials in accordance with its intended purpose under clause 69d of UrhG. Customer shall not operate a service bureau or other similar service for the benefit of third parties using the Service or Support Materials. Use of and access to the Service and Support Materials is permitted only by Customer-designated personnel (“User(s)”).

2.4 Limitations on Reverse Engineering and Modification. Except to the extent such a limitation is expressly prohibited by Applicable Laws, in particular clause 69e of the German Copyright Act (Urheberrechtsgesetz “UrhG”), Customer will not reverse engineer, decompile, disassemble, modify, or create derivative works of the Service or Support Materials whether directly or indirectly unless it is necessary for the use of the Service or Support Materials in accordance with its intended purpose under 69d UrhG.

2.2   Section 5.2 (Payment Terms) of PART 1 is replaced with the following:

5.2   Payment Terms. Unless otherwise set forth in a Schedule, (a) fees for Licensed Software will be billed on an annual basis, payable in advance; and (b) all amounts to be paid by Customer are due and payable thirty (30) days after Customer’s receipt of an invoice. Payments will be made by electronic transfer to a bank account designated by Tanium on the invoice in the amount of fees for the Licensed Software, Supplemental Services and Training ordered (less any applicable credits and deductions and plus any applicable taxes, shipping, and other charges). The effective date of payment shall be the date on which the entire amount due is credited to Tanium’s bank account or the instrument enabling immediate collection of the entire amount due is received. All undisputed payment not made by Customer when due will be subject to late charges of default interest of nine (9) percentage points above the base interest rate. Customer shall pay all court costs, fees, expenses, and legal attorneys’ fees (as stipulated by Statutory law) incurred by Tanium in collecting delinquent fees.

2.3   Notwithstanding the support hours listed in Section 6.2 (Support Services), Customer may contact Tanium for Support Services Monday through Friday, 8 a.m. to 6 p.m. CET, excluding Tanium holidays.

2.4   Sections 7.1 (Limited Warranty), 7.2 (Additional Warranty) and 7.3 (Disclaimer) of PART 1 are replaced with the following:

7.1 Limited Warranty.   During the Warranty Period, Tanium warrants that (i) the Licensed Software will operate in substantial conformity with the Documentation; and (ii) it will screen the Licensed Software prior to Delivery to Customer for viruses, Trojan horses, and other malicious code. The “Warranty Period” is limited to the maximum period mandated under Applicable Laws or the duration of the Licensed Term if shorter. All warranty claims not made in writing within the Warranty Period will be deemed waived. The foregoing warranties apply only to Licensed Software provided to Customer during the Warranty Period and are solely for the benefit of Customer and Customer shall have no authority to extend such warranty to any third-party. The sole and exclusive remedy of Customer, and the entire liability of Tanium, for breach of the foregoing warranties in this Section, shall be to seek repair or replacement delivery at the discretion of Tanium. Liability without fault for initial defects is excluded. The liability with fault remains unchanged. In assessing whether or not Tanium is in fault, Customer acknowledges that software cannot be free of any defects. Customer shall be exempt from paying any fees for the Licensed Software for the duration of any time taken to repair or replace the Licensed Software where Customer is unable to use the Licensed Software. If a breach of the warranties set out in this Section cannot be remedied by repair or replacement, either party is entitled to terminate the relevant Schedule(s) or Quote(s), and Tanium shall refund to Customer license fees paid for the non-conforming Licensed Software. Customer is only entitled to a termination pursuant to sec. 543 subsec, 2 sentence 1 no.1 German Civil Code due to the failure to grant use in accordance with the Agreement if Tanium has been given sufficient opportunity to rectify the deficiency and such attempt has failed. This warranty is contingent upon the proper installation and use of the Licensed Software as described in the Documentation and this Agreement; Tanium shall not be responsible for Customer’s use of the Licensed Software if not operated in a manner recommended in the Documentation. Any modification to the Licensed Software by Customer or any third-party or failure by Customer to implement any Enhancements to the Licensed Software may void Tanium’s warranties under this Section.

7.2   Additional Warranty. In addition, Tanium warrants that any Enterprise Supplemental Support and Training will be provided in a professional and workmanlike manner consistent with relevant industry standards. If Tanium breaches the foregoing warranty, Customer’s sole remedy will be to terminate the applicable Enterprise Supplemental Support or Training and receive a refund of any prepaid unused fees for such non-conforming Enterprise Supplemental Support or Training.

7.3   Disclaimer. Intentionally Omitted.

2.5   Section 9 (Limitation of Liability) of PART 1 is replaced with the following:

9. Limitation of Liability

9.1   For damages with respect to injury to health, body or life caused by Tanium, Tanium’s representative, or Tanium’s agents in the performance of its contractual obligations, Tanium is fully liable.

9.2   Tanium is fully liable for damages caused willfully or by the gross negligence by Tanium, Tanium’s representatives, or Tanium’s agents in the performance of its contractual obligations. The same applies to damages which result from the absence of a quality which was guaranteed by Tanium or to damages which result from malicious action.

9.3   If damages, except for such cases covered by Sections 9.1, 9.2 or 9.4, with respect to a breach of a contractual core duty are caused by slight negligence, Tanium is liable only for the amount of the damage which was typically foreseeable. Contractual core duties, abstractly, are such duties whose fulfillment enables proper performance of an agreement in the first place and whose performance a contractual party regularly may rely on. For the purposes of this Section, “foreseeable damages” shall mean an amount that does not exceed in the aggregate three times the amount payable to Tanium by Customer in the 12 months period prior to the damage causing event.

9.4   Tanium’s liability based on the German Product Liability Act remains unaffected.

9.5   Any further liability of Tanium is excluded.

9.6   The limitation period for claims for damages against Tanium expires after one (1) year, except for such cases covered by Sections 9.1, 9.2 or 9.4.

9.7 Exclusions to limitations of liability Notwithstanding anything else to the contrary, the limitations of liability in Section 9.1-9.6 or elsewhere in this agreement do not limit, apply to, or take into account: (i) Customer’s liability for payment obligations under Section 5 (Fees and Expenses; Delivery and Taxes) and/or the relevant Schedule(s) or Quote(s), (ii) Customer’s liability for breach of Section 2 (Restrictions), (iii) Tanium’s indemnification obligations under Section 8.1 (Infringement), (iv) either party’s liability for breach of Section 10 (Confidentiality), or (v) either party’s liability for its gross negligence or willful misconduct. In addition, notwithstanding the foregoing or any other term of this agreement, nothing contained herein will be construed as limiting Tanium’s right to protect, enforce and recover damages for violation or infringement of its intellectual property rights.

9.8  General. The parties acknowledge that only Customers can implement back-up plans and safeguards appropriate to their own needs to protect themselves if an error in the Licensed Software causes computer problems and related data losses. For these reasons, Customer agrees to the limitations of liability in this Section 9 and acknowledges that without Customer’s agreement to these terms, the fee charged for the Licensed Software would be higher. Any limitation of liability set forth in this Section 9 that applies to Tanium also extends to Tanium’s licensors and suppliers. No action, regardless of form, arising out of any of the transactions under this Agreement may be brought by Customer more than one (1) year after such action accrued except for such cases covered by Section 9.1, 9.2 or 9.4. In the event Tanium makes a refund pursuant to an express remedy under this Agreement, any such monies refunded by Tanium will be applied to the measure of damages subsequently awarded by the court, if any.

2.6.   Section 11.1 (Evaluation Software) of PART 1 is replaced with the following:

11.1   Evaluation Software.. This Section only applies to Licensed Software provided by Tanium free of charge for evaluation or development(“Evaluation Software”). Subject to Section 2 (Restrictions), Tanium grants to Customer a non-transferable, non-exclusive limited license to use the Evaluation Software for its internal development, demonstration, evaluation, training, and testing only. The term of this license is for the term set forth in the applicable License Key Notice, or if no term is described, a period of thirty (30) days following Delivery of the Evaluation Software (“Evaluation Period”). Unless otherwise agreed in writing by Tanium, Customer agrees to use the Evaluation Software in a non-production environment. Customer bears the sole risk of using the Evaluation Software. Tanium provides the Evaluation Software to Customer “AS-IS” and gives no representation, warranty, indemnity, guarantee or condition except where defects have been fraudulently concealed by Tanium or its agents. Because the Evaluation Software is provided “AS-IS, “ Tanium is not obliged to provide support for it. This Section supersedes any inconsistent term in the Agreement for purposes of the Evaluation Software.

2.7.    Section 12 (Governing Law/Jurisdiction) of PART 1 is replaced with the following:

12.   Governing Law/Jurisdiction. This Agreement and any disputes arising in connection with this Agreement will be governed by and construed in accordance with the substantive laws in force in Germany. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All disputes arising out of or in connection with the Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“Rules”) by a panel of three arbitrators appointed in accordance with said Rules. All proceedings shall be conducted in English and the arbitration shall take place in Hamburg, Germany. Notwithstanding the foregoing, either party may apply to a court of competent jurisdiction for temporary equitable relief, including the issuance of temporary injunctions, in appropriate circumstances.

3.   For Customers Domiciled in France:

3.1.   Notwithstanding the support hours listed in Section 6.2 (Support Services), Customer may contact Tanium for Support Services Monday through Friday, 8 a.m. to 6 p.m. CET, excluding Tanium holidays.

3.2.   Section 7.1 (Limited Warranty) of PART 1 is replaced with the following:

7.1   Limited Warranty. During the Warranty Period, Tanium warrants that (i) the Licensed Software will substantially perform in accordance with the Documentation (obligation de moyen); and (ii) it will use commercially reasonable efforts to screen the Licensed Software prior to Delivery to Customer for viruses, Trojan horses, and other malicious code. The term “Warranty Period” means ninety (90) days from the Effective Date. If the Licensed Term is less than ninety (90) days, the Warranty Period will be for the length of the applicable Licensed Term. The foregoing warranties are solely for the benefit of Customer and Customer shall have no authority to extend such warranty to any third party. The sole and exclusive remedy of Customer, and the sole and exclusive liability of Tanium, for breach of the foregoing warranties in this Section, shall be to repair or replace the non-conforming Licensed Software, or if repair or replacement would, in Tanium’s opinion, be commercially unreasonable, then Tanium shall terminate the relevant licenses and refund to Customer the portion of prepaid license fees paid for such non-conforming Licensed Software. This warranty is contingent upon the proper installation and use of the Licensed Software as described in the Documentation and this Agreement; Tanium shall not be responsible for Customer’s use of the Licensed Software if not operated in a manner recommended in the Documentation. Any modification to the Licensed Software by Customer or any third party or failure by Customer to implement any Enhancements to the Licensed Software may void Tanium’s obligation to provide Support Services and Tanium’s warranties under this Section.

3.3.   Section 12 (Governing Law/Jurisdiction) of PART 1 is replaced with the following:

12.   Governing Law/Arbitration. This Agreement will be governed by and construed in accordance with the substantive laws in force in France. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All disputes arising out of or in connection with the Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“Rules”) by a panel of three arbitrators appointed in accordance with said Rules. All proceedings shall be conducted in English and the arbitration shall take place in Paris, France. Notwithstanding the foregoing, either party may apply to a court of competent jurisdiction for temporary equitable relief, including the issuance of temporary injunctions, in appropriate circumstances.

3.4.   Section 17 (Force Majeure) of PART 1 is replaced with the following:

17.   Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, and/or where such breach is caused by, or results from an act or event of force majeure, as provided by article 1218 of the French Civil Code and as defined by French case law, affecting either party, and including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, pandemic, epidemic, riot, act of God, export control regulation, laws, judgments or government instructions.

4.    For Customers Domiciled in the UK, European Union, Middle East or Africa other than Germany and France:

4.1.   Notwithstanding the support hours listed in Section 6.2 (Support Services), Customer may contact Tanium for Support Services Monday through Friday, 8 a.m. to 6 p.m. CET, excluding Tanium holidays.

4.2.   Section 12 (Governing Law/Jurisdiction) of PART 1 is replaced with the following:

12.   Governing Law/Arbitration. All disputes arising out of or in connection with the Agreement will be governed by the laws of England and will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a panel of three arbitrators appointed in accordance with said Rules. All proceedings shall be conducted in English and the arbitration shall take place in London, England. Notwithstanding the foregoing, either party may apply to a court of competent jurisdiction for temporary equitable relief, including the issuance of temporary injunctions, in appropriate circumstances.

5.    For Customers Domiciled in Australia, the following changes are made to the terms in PART 1:

5.1.   Notwithstanding the support hours listed in Section 6.2 (Support Services), Customer may contact Tanium for Support Services Monday through Friday, 9 a.m. to 5 p.m. AEST or AEDT, excluding Tanium holidays.

5.2.   The following text is added to the end of Section 7.3: For the avoidance of doubt, nothing in this Agreement (i) restricts, excludes, or modifies any rights that cannot be excluded under any Applicable Laws, including where applicable the consumer guarantees set out in the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)), or (ii) seeks to exclude Tanium’s liability for any breach of the Australian Consumer Law. If Tanium is liable for a breach of a guarantee that cannot by law be excluded but liability for such breach can be limited, Tanium’s liability is, to the fullest extent permitted by law, limited at Tanium’s option to either: (i) in respect of Licensed Software, the repair or replacement of the non-conforming Licensed Software or the refund of the license fees paid by Customer for the non-conforming Licensed Software; or (ii) in respect of Services, remedy of the failure within a reasonable time.

5.3.   Section 12 (Governing Law/Jurisdiction) of PART 1 is replaced with the following:

12.   Governing Law/Arbitration. All disputes arising out of or in connection with the Agreement will be governed by the laws of Australia. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The state or federal courts of competent jurisdiction located in the state of Victoria will have exclusive jurisdiction over all disputes relating to this Agreement.

6.    For Customers Domiciled in Japan:

6.1.   Notwithstanding the support hours listed in Section 6.2 (Support Services), Customer may contact Tanium for Support Services Monday through Friday, 9 a.m. to 5 p.m. Japan Standard Time, excluding Tanium holidays.

6.2.   Section 12 (Governing Law/Jurisdiction) of PART 1 is replaced with the following:

12.   Governing Law/Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Japan. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in courts of Tokyo, Japan, and each party irrevocably submits to the exclusive jurisdiction of the Tokyo courts. Any matter not stipulated herein or any ambiguities regarding the interpretation of this Agreement shall be resolved by good faith discussion between the parties.

7.    For Customers Domiciled in Asia or the Asia-Pacific region, exclusive of Japan and Australia:

7.1.   Notwithstanding the support hours listed in Section 6.2 (Support Services), with respect to Customer(s) in the Republic of Korea, Customer may contact Tanium for Support Services Monday through Friday, 9 a.m. to 6 p.m. Korea Standard Time, excluding Tanium holidays.

7.2.   Section 12 (Governing Law/Jurisdiction) of PART 1 is replaced with the following:

12.   Governing Law/Arbitration. This Agreement will be governed by the laws of Singapore. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be Singapore. The Tribunal shall consist of three arbitrators. The language of the arbitration shall be English. Notwithstanding the foregoing, either party may apply to a court of competent jurisdiction for temporary equitable relief, including the issuance of temporary injunctions, in appropriate circumstances.

Appendix A

Tanium Enterprise Supplemental Support

1. Enterprise Supplemental Support.

1.1 Term. Supplemental support (“Enterprise Supplemental Support”) may be obtained from Tanium at its then-current list price or mutually negotiated price during the Licensed Term. Unless otherwise agreed by the parties, the term of Enterprise Supplemental Support provided by Tanium will commence on the earlier of the date that Customer provides access to Customer’s Tanium environment and related systems or thirty (30) days from the order date, and will expire at the end of the purchased support term noted in the applicable Schedule or Quote (e.g., 6 months)(“ESR Support Term”).

1.2 General. If Customer purchases Enterprise Supplemental Support, Tanium will provide a Tanium enterprise support resource (“ESR”) or Technical Account Manager (“TAM”), as noted on the Schedule, who will be available to provide the relevant support during the ESR Support Term. Enterprise Supplemental Support may consist of one or more of the following tasks, as further described in the Schedule or otherwise agreed to with Customer:

• assist with the deployment, configuration, and optimization of the Tanium products;
• help plan and coordinate migration from third party products;
• help plan and coordinate migration from one Tanium product to another Tanium product;
• plan, coordinate and implement other Tanium-related projects and communicate updates;
• provide consolidated reporting of current deployment status to Tanium’s senior technical and sales leadership and designated Customer representatives;
• collate technical documentation on behalf of Customer;
• help plan, communicate, and monitor the status, health and challenges associated with installation and deployment of Tanium products;
• maintain ongoing technical relationships with Customer and provide weekly reporting to Tanium’s senior technical and sales leadership and designated Customer representatives;
• track all tickets, bugs, feature requests, improvement requests and ongoing communications regarding Tanium products; and
• observe ongoing operations for potential problems and improvements; such observations will be brought to the attention of Tanium’s senior technical and sales leadership and designated Customer representatives.

The ESR or TAM will not:

• execute an action (e.g. deploying a patch) without advance approval by a designated Customer representative;
• take any destructive action (e.g., file deletion) in the Customer environment;
• use Tanium products to perform any incident response services;
• act in a capacity to directly support third-party hardware or software on which the Tanium product is running or dependent; or
• change any settings, undertake Tanium server or client tuning or conduct advanced troubleshooting without advance approval from the designated Customer representative .

1.3 Access. Customer must provide the Tanium resource with access to Customer’s Tanium environment and related Customer’s systems within thirty (30) days from the start of the ESR Support Term (“On-Boarding Period”). In the event Customer fails to provide the Tanium resource with the required systems access noted above, Tanium may withdraw the assigned resource until access is granted. Enterprise Supplemental Support will be provided during normal business hours or as mutually agreed upon between Tanium and Customer. The Tanium resource may be required to be out-of-the-office due to PTO, illness, holidays, training, vacations, or meetings. If the time out-of-office impedes Customer operations, Customer may request an alternate Tanium resource to be made available; however, Customer is responsible for onboarding the alternate resource and the scheduled term will not “pause” during this time. Should the assigned resource’s employment with Tanium end, Tanium will provide Customer with a replacement resource as soon as reasonably available.

1.4 Support Materials. ESRs and TAMs may provide Customer with Support Materials, including scripts, API documentation, and training materials. Tanium retains ownership in all Support Materials, and Customer’s use of the Support Materials is governed by the license terms set forth in Section 1 of the Agreement.

1.5 Customer Responsibilities. Customer and its personnel shall cooperate fully with Tanium and its personnel in all respects, including, without limitation, providing information as to Customer requirements, providing access to the equipment/hardware on which the components of the Tanium products are or will be installed, and providing access to all necessary information regarding Customer’s systems. Customer shall be responsible for making, at its own expense, any changes or additions to Customer’s current systems, software, and hardware that may be required to support operation of the Tanium products.

1.6 Action Approver. Customer will assign an action reviewer/approver to act as the final Customer approver for all Tanium actions submitted by the ESR or TAM (“Action Approver”). The Action Approver will have the authority to approve all actions issued in the Tanium console. Any other requested changes to Customer’s environment will require a change review process to be agreed by the parties.

1.7 Remote Support. Enterprise Supplemental Support may be provided remotely via telephone or electronic communications. Customer agrees that Tanium resources may access Customer’s systems during the relevant ESR Support Term, using a commercially standard remote system access tool (“Remote Support Tool”). If a network connection between Tanium and Customer’s systems is required for Tanium to perform Enterprise Supplemental Support, Customer will provide such access as follows:

• Customer is responsible for ensuring that (i) its network and systems comply with specifications provided by Tanium; (ii) all components of Customer’s Tanium environment are accessible through Remote Support Tool; and (iii) Remote Support Tool is installed in a timely manner for Tanium to perform the Enterprise Supplemental Support.
• Customer is responsible for acquiring and maintaining any equipment and performing any activities necessary to set-up and maintain network connectivity at and to Customer’s Tanium environment.
• Customer will provide and maintain user accounts for, and access to, Remote Support Tool for the Tanium resources, including, but not limited to, Tanium’s onsite and remote resources.
• Tanium is not responsible for network connection issues, problems or conditions arising from or related to network connections, such as bandwidth issues, excessive latency, network outages, and/or any other conditions that are caused by an internet service provider, or the network connection. If Customer’s Remote Support Tool client software and/or infrastructure fails to allow Tanium access to perform its obligations, Customer agrees to pay for any increased costs resulting from such failure.

[End of Agreement]