EGNYTE PLATFORM RESELLER AGREEMENT

(last revision – September 2023)

This Egnyte Platform Reseller Agreement ("Agreement") sets forth the terms and conditions governing Reseller’s appointment as a reseller of Egnyte’s services to third parties, including the purchase and resale of the Egnyte Platform.

This Agreement constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and replaces all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. It may only be amended in a writing signed by both parties. Additional or different terms in any Reseller communication, including any purchase order, are void.

"Affiliate" means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party (where "control" means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity).

"Customer" means any third party that purchases subscriptions to the Services from Reseller for its own internal purposes (not for resale to, or use on behalf of, others).

"Egnyte Marks" refers to the proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names adopted by Egnyte from time to time to identify itself or its products or services.

"Egnyte Platform" means Egnyte’s hosted content services platform that enables the processing, governance, and management of Content. Each Egnyte Platform subscription includes per-unit features and functionality per the relevant Egnyte Platform plan.

• "Collaboration" is a service within the Egnyte Platform enabling secure file sharing, editing, and collaboration for content through a cloud-based repository and/or through a device linked to the Services.
• "Governance" is a content governance service within the Egnyte Platform that monitors Egnyte-supported content repositories to identify potential corporate-wide access control problems within such repositories.

"Services" means the Egnyte services ordered by Reseller, as may be further described in Egnyte’s Product-Specific Special Terms at the following link: https://www.egnyte.com/product-specific-special-terms ("PSST"). Egnyte may update the PSST from time to time, provided that any such updates will only apply to Reseller (and its Customers) from the earlier of i. the date of signing of a new agreement with Egnyte, ii. the date of renewal of the Subscription Term, or, iii. solely for the purposes of overage billing, the date the overage occurs.

"Reseller Code" means a unique string of characters that will identify Reseller in Egnyte’s internal systems for the purposes of tracking Reseller’s Customers.

"Reseller Portal" means Egnyte’s internal system that tracks sales and billing activity, including Customer subscriptions to the Services.

"Support Services" means the support services provided by Egnyte to Customers for the Services.

Section headings are for general reference only and are not probative in interpreting the meaning of any provisions hereunder.

1. Nonexclusive Appointment. Subject to the terms and conditions herein, Egnyte appoints Reseller as a nonexclusive reseller of the Services, and Reseller hereby accepts such appointment. Nothing in this Agreement shall limit, in any manner, Egnyte’s (i) providing Services to or for any customer, through any commercial channel, or in any territory, (ii) engaging in any other marketing or distribution activities, or (iii) appointment of other resellers, dealers, distributors, licensees, or agents. To the extent Reseller's rights and licenses in this Agreement extend to Reseller’s Affiliates (which extension must be previously approved by Egnyte in writing in each case), Reseller will be responsible to Egnyte for its Affiliates' compliance with the terms of this Agreement. All subscriptions and other access to the Services are licensed and not sold, notwithstanding the use of the terms “sell” or “resell” herein. Reseller is permitted to resell the Services only as marketed and hosted by Egnyte.
2. Demonstration License. Subject to the terms of this Agreement, Egnyte grants Reseller a nontransferable, non-exclusive license to use the Services for demonstration purposes to prospective Customers, which usage may be limited by Egnyte in Egnyte’s sole discretion. For any proposed demonstration of the Egnyte Platform, Reseller must first coordinate and get prior approval from Egnyte.
3. Support Services. Reseller may only resell Egnyte’s Support Services subject to the Customer Agreement, including Egnyte’s then-current support terms. Egnyte provides Support Services directly to Customers (not to Reseller).

1. General. Egnyte will assign unique credentials to Reseller, including a Reseller Code, for Reseller’s access to Egnyte’s Reseller Portal.
2. Order Process; Customer Agreement. Reseller shall purchase Services via the process specified by Egnyte, which may include a mutually signed order form or a purchase order following a quote (which shall represent a binding commitment upon Egnyte’s receipt and written confirmation). Each Customer must be registered for the Services under a separate Customer account. Egnyte will make the Services available to Customers in accordance with Egnyte’s terms and conditions for the Services (the “Customer Agreement”) entered between Egnyte and each Customer, which may be found in the following link: https://www.egnyte.com/reseller-end-customer-agreement. Reseller acknowledges Customer’s acceptance of a valid and enforceable Customer Agreement with Egnyte is a condition precedent to its access and use of the Services.
3. Pricing. Egnyte may, in its sole discretion, alter any prices on 30 days’ written notice; provided, however, that prices for existing subscription services will become effective only upon renewal of the applicable Reseller order.

1. Qualifications. Reseller shall maintain, at its sole cost and expense, a sales organization with personnel who are trained in the benefits and attributes of the Services such that they can market them competently.
2. Marketing and Promotion of the Services. Reseller shall, at its own expense, use commercially reasonable efforts to market and promote the Services, promptly respond to inquiries from prospective Customers, and conduct its business in a manner that reflects favorably on the Services and the goodwill and reputation of Egnyte. Reseller shall not make any representations regarding the Services except as consistent in all respects with materials provided to Reseller by Egnyte. From time to time, Egnyte may furnish Reseller with marketing material. Reseller must submit to Egnyte, for Egnyte’s prior written approval, any material changes to such marketing materials that Reseller intends to use in the marketing or promotion of the Services.
3. Implementation Services. If Reseller wishes to perform implementation services related to the Services, Reseller must coordinate with Egnyte prior to doing so and must achieve and maintain certification standards established by Egnyte (as may be updated from time to time).
4. Reseller Conduct. Reseller shall not make any representations regarding the Services except as consistent in all respects with materials provided to Reseller by Egnyte. In addition, Reseller shall not engage in any deceptive, misleading, or unethical practices, including, without limitation, any practice that could be detrimental to Egnyte. Reseller shall inform Egnyte of any complaints or claims concerning Egnyte or the Services promptly after becoming aware of such complaints or claims. Reseller shall communicate promptly to Egnyte any comments for modifications, functionality, design changes, and other improvements of the Services suggested by Reseller’s employees or agents or by any Customer (collectively "Feedback"). Reseller agrees that, as between Egnyte and Reseller, Egnyte shall own all Feedback, and Reseller agrees to and hereby assigns all of Reseller’s rights, title, and interest in and to such Feedback to Egnyte. Reseller shall comply with all laws and regulations applicable to its performance under this Agreement, including data privacy laws.

1. Fees. Prices payable by Reseller are based on Egnyte’s standard reseller pricing, as may be updated from time to time, or as set forth in a mutually-agreed order between the parties.
2. Additional Payment Obligations. Except as otherwise expressly and mutually agreed, payments from Reseller are non-refundable, payable in U.S. dollars, to be made by wire transfer (unless Egnyte has authorized alternative payment), and due within 30 days from receipt of Egnyte's invoice. Past due amounts not subject to a good faith dispute will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law.
3. Taxes. Amounts charged by Egnyte do not include, and are in addition to, any foreign, federal, state, or local sales, use, withholding, or other similar taxes, however designated, levied against the licensing, delivery, or use of the Services or any other services. Reseller will pay, or reimburse Egnyte for, all such taxes imposed on Reseller or Egnyte; provided, however, that Reseller will not be liable for any taxes based on Egnyte’s net income. Where Egnyte has the legal obligation to collect such taxes, the appropriate amount shall be added to Reseller's invoice and paid by Reseller unless Reseller provides Egnyte with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Overages and Associated Fees. If Reseller and its Customers consume, in the aggregate, more functionality or usage of the Services than what Reseller has purchased from Egnyte, Reseller shall be committed to paying for such increase in consumption for the remaining term of the applicable Reseller order for such Services. Reseller acknowledges that Customers may generate overages on some Services, and that Egnyte may periodically audit usage to determine if additional fees are due from Reseller to Egnyte.

1. Mutual Warranties. Each party represents and warrants that it (i) has the full power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement, and (ii) has no outstanding agreement or obligation in conflict with any of the provisions of this Agreement that would preclude it from complying with such provisions.
2. Warranty by Egnyte to Customers. Reseller acknowledges that any warranty provided by Egnyte is to the applicable Customer (per the Customer Agreement) and not to Reseller, and Reseller shall make no additional or different warranty, guarantee, or representation, whether written or oral, on Egnyte’s behalf. Reseller shall be fully responsible for all claims, damages, settlements, expenses, and attorneys' fees incurred by Egnyte with respect to claims made by Reseller beyond what Egnyte makes directly to Customers under the Customer Agreement.
3. Warranty Disclaimer. EGNYTE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE WHATSOEVER TO RESELLER WITH RESPECT TO THE SERVICES OR ANY EGNYTE SERVICES OR SERVICES PROVIDED UNDER THIS AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SPECIFIED HEREIN, EGNYTE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE.

1. Confidential Information. Each party (as the "Receiving Party") agrees that all code, inventions, algorithms, designs, know-how, ideas, and all business, technical, and financial information it obtains from the other party (as the "Disclosing Party") is the confidential property of the Disclosing Party ("Confidential Information"). Each party will maintain in confidence all Confidential Information of the other party and will not use such Confidential Information except to perform its obligations and exercise its rights under this Agreement. Each party will protect the Disclosing Party’s Confidential Information using the same measures it uses to protect its own like Confidential Information, but in no event using less than reasonable care, and limit the disclosure of the Disclosing Party’s Confidential Information to those of its employees and contractors with a bona fide need to know, provided that all such employees and contractors are bound by a written non-disclosure agreement that contains restrictions at least as protective as those set forth herein. Both parties will have the right to disclose the existence, but not the terms and conditions, of this Agreement, except to the extent such disclosure is approved in writing by both parties prior to such disclosure, is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order with regard to sensitive business terms), or is made on a confidential basis as reasonably necessary to potential investors, lenders, or acquirers. The Receiving Party’s nondisclosure obligation will not apply to information that (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) was rightfully in the Receiving Party’s possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information or otherwise in breach of this Agreement; or (iv) the Receiving Party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure. The protection period for Confidential Information disclosed under this Agreement will for the period ending three years following the Term.
2. Ownership. As between Egnyte and Reseller, Egnyte will retain all intellectual property rights relating to the Services (and any software, documentation, or data related to the Services) and the Egnyte Marks, as well as any improvements, modifications, translations, and derivative works of the foregoing. Reseller agrees to use only then-current Egnyte Marks used by Egnyte for the Services. All goodwill associated with the use of the Egnyte Marks will inure to the benefit of Egnyte. Except as expressly set forth herein, Reseller may not use the Egnyte Marks without Egnyte’s express written consent.
3. Restrictions. Reseller will not (and will not permit any third party to): (i) modify or create derivative works of the Services; (ii) create or attempt to create, by reverse engineering or otherwise, the source code or internal structure of the Services or any part thereof, except and only to the extent such restrictions are prohibited by local law; (iii) remove any proprietary notices or restrictions from the Services; (iv) use the Services for any purpose other than to support the Customers and demonstrate the Services to prospective Customers as permitted herein; (v) provide the Services to any third party which is not subject to a Customer Agreement; or (vi) permit any Customer to use the Services beyond the scope of the Customer Agreement. All rights to Services not granted herein are retained by Egnyte.

1. Egnyte Indemnity. Egnyte will defend, indemnify, and hold Reseller harmless against any liability, damage, or costs (including reasonable attorneys' fees) incurred in connection with any claims, demands, suits, or proceedings made or brought by a third party ("Claim(s)") against Reseller alleging that the use of the Services as authorized and contemplated hereunder infringes the intellectual property rights of such third party. The provisions of this Section 8 set forth Egnyte’s sole and exclusive obligations, and Reseller's sole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights of any kind relating to the Services. Egnyte will have no liability for any infringement Claim to the extent the Claim is based upon (i) any unauthorized use of the Services or any breach of this Agreement by Reseller or breach of a Customer Agreement by a Customer, (ii) the use of the Services in combination with any other product, service, device or database not provided by Egnyte, if such Claim would have been avoided by use of the Services without such product, service, device or database; or (iii) any modification of the Services by any person other than Egnyte or its authorized agents or contractors.
2. Reseller Indemnity. Reseller will defend, indemnify, and hold Egnyte harmless against any liability, damage, or costs (including reasonable attorneys' fees) incurred in connection with Claims against Egnyte arising out of (i) a breach of any obligation of Reseller set forth herein, or (ii) any marketing, use or other exploitation of any products or services offered or provided by Reseller (except to the extent covered by Egnyte’s indemnity obligations above).
3. Conditions to Indemnity. To qualify for indemnification under this Section, the party seeking indemnification ("Indemnified Party") must (i) promptly give written notice of the Claim to the party providing the indemnification ("Indemnifying Party"); (ii) give the Indemnifying Party sole control of the defense, negotiation, compromise, and settlement of the Claim; provided, however, that any such settlement does not impose any obligation of payment, admission of guilt, or any other material obligation (except customary obligations of confidentiality) on the Indemnified Party without its prior written consent; and (iii) provide to the Indemnifying Party all reasonable assistance and cooperation. The Indemnified Party may elect to participate in the defense of a Claim with an attorney of its own choice and at its own expense.

1. Limitation and Exclusions of Liability. Except as provided in Section 9.b (Exceptions to the Limitation and Exclusions of Liability), (i) in no event will either party have any liability to the other (including its Affiliates) for any lost profits or for any indirect, special, incidental, punitive, or consequential damages, however caused, and whether in contract, tort, or under any other theory of liability, whether or not the party has been advised of the possibility of such damages, and (ii) in no event will the aggregate liability of either party to the other party (including all Affiliates) for direct damages for all claims under this Agreement exceed the fees paid and payable by Reseller during the twelve-month period directly prior to the claim.
2. Exceptions to the Limitation and Exclusions of Liability. Notwithstanding the foregoing and unless prohibited under applicable law, no limitation on or exclusion of liability of either party applies to: (i) damages arising from a breach of Reseller’s obligations under Sections 7 (Confidentiality; Ownership; Trademarks; Restrictions) or either party’s breach of Section 8 (Indemnification), or (ii) Reseller's obligation to pay amounts due hereunder.

1. Term. This Agreement shall commence upon execution and will remain in effect until terminated by either party upon 30 days’ written notice (the "Term"). Notwithstanding the foregoing, should Reseller enter an order with a subscription term that exceeds the Term, the terms of this Agreement shall remain in force and effect until the proper expiration of the subscription period included in such order.
2. Termination. In the event of a material breach of this Agreement or any of its terms, the non-breaching party may terminate the Agreement by giving 15 days' prior written notice to the other party; provided, however, that termination will not be effective if the other party has cured the breach prior to the expiration of such 15-day period.
3. Effect of Termination. Upon termination of this Agreement, the rights and licenses granted hereunder will immediately terminate; provided, however, that all Customer Agreements and associated Reseller orders in existence as of the termination date for which Reseller fees have been paid (and continue to be paid when due by Reseller) will continue in effect for the period stated therein, not to exceed an additional 12 months (except for any extended period that Egnyte may agree to in writing). In addition, Reseller will return to Egnyte all Confidential Information of Egnyte and all tangible materials related to the Services, including, without limitation, all derivative works thereof, and Egnyte will return to Reseller all Confidential Information of Reseller (in each case except as such materials must be reasonably retained and used by the parties to continue to provide Services to Customers following termination under Customer Agreements and associated Reseller orders that remain in effect). Termination will not relieve either party of obligations incurred prior to termination.
4. Survival. The terms of any sections that by their nature are intended to extend beyond termination of this Agreement including, but not limited to, Sections 6.c (Warranty Disclaimer), 7 (Confidentiality; Ownership; Trademarks; Restrictions), 8 (Indemnification), 9 (Limitation of Liability), and 11 (General), will survive expiration or termination of this Agreement.

1. Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, or fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
2. Governing Law. This Agreement will be governed exclusively by the laws of the State of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The federal and state courts sitting in the County of Santa Clara in the State of California will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
3. Notices. All notices required to be given under this Agreement will be given in writing and sent to the recipient party's address (which shall be communicated upon execution of this Agreement). All notices will be given by certified or registered mail or overnight carrier. Such notices will be deemed given on the date of receipt of said notice.
4. No Waiver. No failure or delay in exercising any right hereunder will constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in effect.
5. Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations hereunder (excluding payment obligations) if the delay or failure arises from a cause or causes beyond its reasonable control.
6. Assignment. Reseller may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Egnyte’s prior written consent. Any attempted assignment in breach of this section will be void.
7. Reseller Business Conduct Commitment. Reseller shall conduct its business activities hereunder in accordance with the principles set forth in Egnyte’s Business Conduct and Ethics Policy (https://www.egnyte.com/corp/business-conduct-and-ethics.html), including, without limitation, the anti-bribery and forbidden transaction provisions. In particular, and without derogating from any other U.S. restrictions on dealings with foreign countries or persons, the countries and/or persons listed on the following website are excluded from the scope of this Agreement: https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx. The parties shall refrain from engaging with prospective Customers in countries that are banned under applicable export control laws and regulations.