“Hardware” means the Tanium appliance purchased from Tanium or a Reseller.
“Hardware Support Services” means the support services for the Hardware provided in accordance with this Warranty.
“Hardware Support Services Term” means the term and type of Hardware Support Services purchased by Customer.
“Unit” means a single instance of the Hardware.
2. Fees and Payment; Taxes.
2.1 Customer will pay Tanium or a Reseller for the Hardware and Hardware Support Services in the amount(s) set forth in the applicable Quote. Notwithstanding anything to the contrary, unless otherwise specified in the Quote, in the event Customer orders the Hardware and/or Hardware Support Services directly from Tanium, Tanium shall invoice Customer on the Order Date and Customer shall pay Tanium Net thirty (30) days from the invoice date. Order Date is defined as the date Tanium accepts and processes all of Customer’s required order documents in accordance with all mutually agreed upon terms and conditions of such order documents (the “Order Date”). Customer will pay Tanium in accordance with this Warranty and the relevant Quote. Customer’s purchase order must reference the Quote and this Warranty. Customer’s purchase order will not modify this Warranty. Except for Tanium’s uncured material breach of this Warranty, Customer will not terminate this Warranty or the Hardware and Hardware Support Services acquired hereunder.
Unless otherwise set forth in the Quote, the Hardware Support Services Term will commence upon the Order Date and continue for the duration of the Hardware Support Services Term, and any renewal Hardware Support Services Term purchased by Customer will commence immediately following expiration of the initial Hardware Support Services Term.
2.2 Unless otherwise specified in the Quote, all amounts to be paid by Customer are due and payable thirty (30) days after Customer’s receipt of an invoice. 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 under applicable law. Customer shall pay all court costs, fees, expenses and reasonable attorneys’ fees incurred by Tanium in collecting delinquent fees.
2.3 All amounts payable by Customer to Tanium under this Warranty 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 Hardware or Hardware Support Services. Taxes do not include any taxes payable by Tanium for its employees or for its net income.
In conjunction with the billing, collection and payment of any Taxes, Customer must provide Tanium with a physical address for the Hardware. This address will be used as the “shipped to address” on all invoices. Customer will pay all Taxes relating to, or under this Warranty, 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. Unless 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 law, 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 Hardware or Hardware Support Services, 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.
3. Hardware Terms and Conditions.
Customer’s purchase of Hardware and Hardware Support Services from Tanium or a Reseller is subject to the following additional terms and conditions.
3.1 Use of Hardware. Customer will use the Hardware in accordance with Hardware technical documentation for Customer’s internal business purposes.
3.2 Limited Hardware Warranty. Tanium warrants that the Hardware will be shipped free from material defects in workmanship for a period of ninety (90) days from delivery of the Hardware to Customer (the “Warranty Period”). This Warranty does not cover: software, third party products, parts/components, services and accessories, external causes such as accident, abuse, misuse, or problems with electrical power, usage that is in an unsuitable operating, environment, usage that is not in accordance with the Hardware technical documentation, products with missing or altered tags or serial numbers, products for which payment has not been made, and normal wear and tear. Customer’s sole and exclusive remedy for material defects in workmanship is limited to repair or replacement of the Hardware during the Warranty Period. Customer must notify Tanium in writing of any warranty claim during the Limited Warranty Period. Customer will cooperate with Tanium in all reasonable respects in the repair or replacement of the Hardware. This Warranty applies only in the country where Customer initially installs the Hardware. This Warranty is non-transferable.
This Warranty does not cover defects, damage or failure of the Hardware caused by misuse, accident, unauthorized modification, improper maintenance, a force majeure event, or any other damage or failure caused by a third party (other than a third party performing on Tanium’s behalf) or a third party’s products. This Warranty is void if the product or part identification labels are removed from the Hardware without written authorization from Tanium. Further, this Warranty is void if additional hardware or software is installed on the Hardware without written authorization from Tanium, that contradicts or is inconsistent with the Hardware technical documentation provided by Tanium, or if any tampering is detected with the Hardware. In addition, this Warranty may be void if there is any unauthorized access of the Hardware outside of the Tanium-provided system UI (TanOS Menu system).
EXCEPT FOR THE LIMITED WARRANTY STATEMENT ABOVE, TANIUM AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY, REPRESENTATION OR CONDITION (1) OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (2) RELATING TO ANY OTHER PRODUCT; OR (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE HARDWARE. TANIUM AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS NOT STATED IN THIS WARRANTY. THE HARDWARE SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. FOR CLARIFICATION, THIS WARRANTY COVERS THE HARDWARE ONLY AND NOT ANY SOFTWARE. TANIUM MAKES NO WARRANTY OR ASSURANCES THAT THE HARDWARE IS SUITABLE FOR ANY HIGH-RISK APPLICATIONS OR ENVIRONMENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, LOSS OF PROFITS, LOSS OF OR DAMAGE TO DATA OR SYSTEMS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE HARDWARE OR HARDWARE SUPPORT SERVICES, OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THIS WARRANTY, EVEN IF TANIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TANIUM’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE FOR THE HARDWARE AND HARDWARE SUPPORT SERVICES PURCHASED UNDER THIS WARRANTY.
3.3 Hardware Support Services.
3.3.1 To receive Hardware Support Services, Customer must contact Tanium during the Hardware Support Services Term.
3.3.2 Unless otherwise specified in the Quote, (i) Hardware is eligible for Hardware Support Services only if it remains in the country where Customer originally installed the Hardware and (ii) Hardware Support Services will only be provided in English. Geographic restrictions may apply to certain Hardware and Hardware Support Services.
3.3.3 Hardware will be repaired or replaced with like or better quality at Tanium’s sole discretion. Customer will properly package, insure, and ship defective Hardware at Tanium’s expense. Tanium will pay all packing, shipping, and insurance to ship the repaired or replacement Hardware to Customer.
3.3.4 Prior to returning any Hardware to Tanium, Customer must contact Tanium Support Services to receive a return material authorization or other tracking number (“RMA”). The RMA will serve as Customer’s reference number for the returned Hardware. Customer will provide Tanium with the location of the Hardware, a detailed description of the problems, errors, or defects, the serial number, and the name and version of the operating systems and Licensed Software (as defined in the license agreement between Customer and Tanium) loaded on the Hardware. Tanium may request that Customer take certain actions to determine whether the problem, error or defect is related to the Hardware, software or other item.
3.3.5 Prior to delivery of the Hardware back to Tanium, Customer must ensure that (i) the Hardware is free of any legal obligation or restriction that would prevent Tanium from exchanging, repairing, or replacing the Hardware; and (ii) all necessary consents have been obtained to allow Tanium to access, repair, or replace the Hardware. Customer is responsible for removing all data from the Hardware before the return of same to Tanium. Returned Hardware becomes the property of Tanium at the time it is determined by Tanium to be defective. Customer will own all replacement Hardware provided to Customer.
3.3.6 During the relevant Hardware Support Services Term, Tanium will provide Customer with (i) reasonable support during Tanium’s normal business hours and (ii) product updates for the Hardware that Tanium makes generally available to its other similarly situated customers at no charge. Tanium will respond to Customer’s requests and engage its third-party supplier(s) as reasonably determined by Tanium. Tanium may subcontract the Hardware Support Services, provided that Tanium will be responsible for any subcontractor’s acts or omissions in performance of Tanium’s obligations under this Warranty.
Hardware Support Services are available Monday through Friday, 7 a.m. to 7 p.m. P.S.T., excluding Tanium holidays. Tanium will use good faith efforts to work with Customer during Customer’s normal business hours in the time zone in which Customer is located. Customer may contact Tanium for Hardware Support Services by submitting a request via the internet-based support and maintenance platform for which Customer will register and use to submit support requests and access technical documentation during the Hardware Support Services Term (the “Tanium Support Portal”). Tanium will provide an initial response to Hardware Support Services requests within four (4) hours of receipt of such request.
3.3.7 The provision of Hardware Support Services is strictly in accordance with this Warranty. If Customer desires to obtain hardware services directly from a third party, such hardware services are solely subject to the terms and conditions between Customer and the third party it selected to perform the hardware services, and Tanium shall have no obligation with respect to such hardware services. Tanium’s suppliers will be deemed to be third party beneficiaries of this Warranty.
3.3.8 Except for the return of defective Hardware via the RMA process described in Section 3.3.4, Customer may not return or exchange the Hardware. Customer must not, nor permit anyone else, to remove, alter, or obscure any proprietary notices, tamper seals or instructional labels on the Hardware without written authorization from Tanium.
3.4 Software. Customer shall not install any software on the Hardware without written authorization from Tanium, at risk of voiding the Hardware Support Services. This Warranty does not cover or apply to the Licensed Software and related Support Services. Licensed Software and related Support Services are governed by a separate license agreement between Customer and Tanium. Customer is solely responsible for obtaining all software licenses for third-party software. All third-party software is licensed to Customer under the terms that accompany the third-party software.
3.5 Shipment, Title and Risk of Loss. Tanium may use a third-party supplier for shipment and/or provision of the Hardware. The Hardware will be shipped to Customer F.O.B. Origin. Title to Hardware passes to Customer upon shipment. Any shipping and delivery dates provided by Tanium are estimates only. Customer will notify Tanium in writing within seven (7) days of receiving the Hardware if Customer believes any part of the order is missing, wrong, or damaged.
3.6 Security Interest. Customer hereby grants to Tanium, and Tanium will retain, a purchase money security interest (PMSI) and lien on Customer’s right, title and interest in and to the Hardware, until the invoice for the applicable Hardware is paid in full, including any late charges and costs of collection. Customer consents and agrees to Tanium’s use of this Warranty as a security agreement for protecting this security interest and Tanium may perfect its PMSI by filing uniform commercial code financing statements.
3.7 Importer and End User of Record. For Customers located outside of the United States, (i) Customer (or its designated Reseller) will be the Importer and End User of Record with respect to the Hardware, and (ii) Customer (or its designated Reseller) will complete and return the End User Certificate in the form provided by Tanium. Customers located in the United States are not required to complete the End User Certificate.
3.8 Export or Import. Customer acknowledges that the Hardware and Hardware Support Services are subject to the export control, economic sanctions, and import laws, regulations and requirements of the United States and other countries. Without limiting the foregoing, Customer agrees that it will not export, re-export, re-transfer the Hardware or Hardware Support Services in contravention of the foregoing, or provide the Hardware or Hardware Support Services 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. Tanium will reasonably cooperate in assisting Customer with respect to an application for any required export or import licenses and approvals, however, Customer acknowledges 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. In addition to the other requirements of this Section, Customer shall be solely responsible for complying with the import laws and regulations and other relevant restrictions, if any, of any country into which Customer imports the Hardware or Hardware Support Services. Customer will defend, indemnify, and hold Tanium harmless from and against all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of or relating to any claim the Hardware or Hardware Support Services were exported or otherwise shipped or transported by Customer in violation of applicable laws, rules and regulations as described in this Section.
3.9 Delivery Questionnaire. Customer agrees to complete a delivery questionnaire in the form provided by Tanium. Customer acknowledges and agrees that Tanium will rely on information provided by Customer and the information provided by Customer will be true, accurate and complete.
This Warranty and any disputes arising in connection with this Warranty shall be governed by and construed in accordance with the substantive laws in force: (a) in the State of Washington, if you purchased the Hardware and Hardware Support Services in the United States or Canada, or (b) in England and Wales if you purchased the Hardware and Hardware Support Services in any country other than the United States or Canada, unless another local law is required to be applied. This Warranty 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. The state and federal courts of competent jurisdiction located in King County, Washington, when the laws of Washington apply, and the courts of London, England, when the laws of England and Wales apply, shall have exclusive jurisdiction over all disputes relating to this Warranty. This Warranty constitutes the entire understanding and agreement between Tanium and Customer with respect to the transactions contemplated in this Warranty and supersedes all prior or contemporaneous oral or written communications, including without limitation pre-printed terms and conditions on Customer’s purchase order, with respect to the subject matter of this Warranty, all of which are merged in this Warranty. This Warranty shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event any provision of this Warranty is found invalid or unenforceable pursuant to judicial decree, the remainder of this Warranty shall remain valid and enforceable according to its terms. Any failure by Tanium to strictly enforce any provision of this Warranty will not operate as a waiver of that provision or any subsequent breach of that provision. All notices, demands, or consents given under this Warranty will be in writing, signed by or on behalf of the party giving notice, and addressed to Tanium, “Attention Legal Department”, at the corresponding address, or to Customer, at the contact information Customer provided when purchasing the Hardware. Notices will be considered when delivered personally, or three (3) days after deposit in the mail (certified or registered mail), or one (1) day after being sent by overnight courier. There are no intended or implied third-party beneficiaries of this Warranty.