RESELLER END CUSTOMER AGREEMENT

(last revision – September 2023)

This Reseller End Customer Agreement (this “Agreement”) shall apply to the entity (“Customer”) using, through its relationship with a Reseller, the services of Egnyte, Inc. (“Egnyte”), a Delaware corporation, with its principal place of business at 1350 W. Middlefield Road, Mountain View, CA 94043. By using the Services through its Reseller, Customer acknowledges and agrees to be bound by the terms listed herein.

"Account" means an account created by or on behalf of Customer within the Services.

"Administrator(s)" means the Power User(s) that Customer appoints to have administrative rights to the Services, including rights to purchase and configure the Services. Egnyte does not maintain administrative rights over Accounts. Customer must always maintain at least one active Administrator.

"Content" means files, materials, data, text, audio, video, images or other content.

"Documentation" means the written materials describing the functionality, operation, and use of the Services that Egnyte provides or makes generally available to customers of the Services, including material located at https://helpdesk.egnyte.com/hc/en-us.

"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 User’s 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.

"Reseller" means a channel partner that has entered a contractual relationship with Egnyte to sell the Services.

"Services" means the services ordered under Reseller Order Form(s) and resold to Customer, 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 Customer 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.

"User" means: i. an individual authorized by Customer to be a Power User or a Standard User under the Services, each as defined below:

• "Power User" means an employee, consultant, or individual contractor of Customer or an employee, consultant, or individual contractor of any affiliated entity to Customer. An individual who is an unaffiliated third party but requires Power User functionality may also be provisioned with a Power User subscription.
• "Standard User", also referred to as an "External User", means an individual other than a Power User (including, without limitation, individuals employed or engaged by Customer's suppliers or customers). For clarity, an employee, consultant, or individual contractor of Customer, or an employee, consultant, or individual contractor of any affiliated entity to Customer may not use a Standard User subscription.

and/or ii. an individual existing in a content repository whose Content may be scanned under Governance in accordance with the terms of the Agreement.

For clarity, a. affiliated entities do not have an automatic right to utilize the Services, but if Egnyte agrees in writing to allow such usage, those Users of the affiliated entities can only be classified as Power Users, and b. parent and subsidiary companies, along with Customer-acquired entities - irrespective of the manner of acquisition - are considered affiliated entities.

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

1. Services. Egnyte will make the Services available to Customer during the Subscription Term for its business purposes solely through any Account registered to Customer and in accordance with the order placed with Egnyte by a Reseller. For clarity, the Services are not for resale by Customer or anyone on its behalf.
2. Access to the Services. Egnyte provides its Services in a hosted, cloud-based format. Egnyte makes the Egnyte Clients available to Customer, including Administrators and Users, solely as an ancillary tool for accessing the Services. Customer acknowledges that, from time to time, Egnyte may issue updates to the Egnyte Clients (for example, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In that event, in order for Customer to best utilize the Services, either Customer will be offered the ability to upgrade the version of the Egnyte Clients currently running or they will be automatically upgraded by Egnyte. "Egnyte Clients" means the applications that are installed on Customer’s local server, desktop, mobile or other device (for example, mobile apps, desktop apps, and group apps) and that enable a User or Administrator to engage with the Services.
3. Provision of Support. Egnyte will provide support to Customer per the level of support included in Customer’s purchased Egnyte Platform plan (or per the level of support purchased a la carte through Customer’s order to Reseller), each of which are described at the following links: https://www.egnyte.com/standard-support; https://www.egnyte.com/premium-support; https://www.egnyte.com/platinum-support, the scope of which may change from time to time at Egnyte’s sole discretion. Furthermore, in relation to the Egnyte GxP Platform (as further described in the PSST) only: Egnyte agrees to provide reasonable support in assisting Customer efforts at maintaining GxP regulatory compliance. In particular, Egnyte will attempt to assist Customer, should it request Egnyte’s input, regarding U.S. FDA documentation requests, provide Customer with GxP related release notes in advance of Egnyte GxP Platform Service updates, and jointly review with Customer Egnyte’s GxP-related standard operating procedures. Egnyte reserves the right, in its sole discretion, to set limits on the time and resources to be expended providing a Customer with GxP-related support and may precondition the performance of excess support on payment of fees by Customer to Egnyte. Furthermore, Customer acknowledges that Egnyte is to perform "validation services" and create applicable GxP related documentation under a SOW to be signed by Egnyte and Customer’s Reseller. The performance of validation services and creation of related documentation by Egnyte is a condition precedent to the delivery of a compliant Egnyte GxP Platform, and Customer acknowledges that Reseller’s failure to secure such Egnyte deliverables via a signed SOW shall be at Reseller’s and/or Customer’s sole risk and liability. The above in no manner is intended to exempt Egnyte from properly performing under a validly executed SOW.
4. Security Measures and Backup Procedures. Egnyte will comply with the data protection and information security procedures in Egnyte’s Data Protection Addendum, located at the following link: https://www.egnyte.com/data-protection-addendum (the "DPA"). The DPA may be updated from time to time to reflect changes in applicable law or enhancements in the security and availability of the cloud infrastructure used to provide the Services. Additional details pertaining to Egnyte’s commitment to privacy can be found in its Privacy Policy at the following link: https://www.egnyte.com/privacy-policy.

If the Reseller and Egnyte agree to provide Customer with a trial or other evaluation period for the Services, Customer may access the Services, subject to this Agreement, during that trial period, which shall not exceed 30 days ("Trial Period"). Notwithstanding Section 8.b (Warranties and Disclaimers) and 10.a (Indemnification by Egnyte), the Services are provided “as-is”, without any warranty, during the Trial Period.

1. Content. Customer (i) is responsible for the accuracy and quality of the Content; (ii) will ensure that the Content complies with this Agreement and applicable laws; (iii) will be responsible for complying with applicable regulatory requirements in managing its Egnyte GxP Platform domain; (iv) will promptly handle and resolve any notices and claims from a third party claiming that any Content violates such party’s rights, including regarding take-down notices pursuant to the U.S. federal Digital Millennium Copyright Act, and (v) will ensure that any and all necessary permissions are secured to enable Egnyte to access, copy, and/or use Content as necessary to perform the Services, including, but not limited to, consent of Users to process Content in general and any personal data in particular (and Customer’s acceptance of this Agreement confirms that Users’ consent has been secured). Absent a binding legal order, Egnyte does not access a Customer’s Account for the purpose of monitoring Content transmitted through the Services.
2. Passwords and Accounts. Customer is responsible for all activities conducted under its User and Administrator logins, and for safeguarding the confidentiality of the User/Administrator names and passwords. Egnyte will have no liability to Customer or any third party relating to any unauthorized disclosure or access to Customer’s Account or Content relating to Customer, Administrator, or User misuse or loss, or the theft of, any password or username. Customer will provide Egnyte with prompt written notice regarding any unauthorized use of an Account, Content, or the Services of which Customer becomes aware, and Customer will take all steps necessary to terminate such unauthorized use. In addition, Customer will provide Egnyte with any cooperation and assistance reasonably requested by Egnyte related to any such unauthorized use.
3. Use Restrictions. Customer will comply with, and ensure its Users comply with, this Agreement. In addition, Customer and its Users and Administrators will not: (i) use the Services in any manner or for any purpose other than as expressly permitted by this Agreement, including, without limitation, allowing Users who are to be classified as Power Users in accordance with the terms of this Agreement to use Standard User logins, (ii) allow multiple individuals to utilize the same User login credentials, (iii) resell, sublicense, lease, or otherwise make the Services available to any third party; (iv) modify, copy, or create derivative works based on the Services; (v) reverse engineer, disassemble, or decompile the Services, or attempt to derive source code from the Services; (vi) remove, obscure, or alter any proprietary right notice related to the Services; (vii) use the Services to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages; (viii) store or transmit Content: (A) containing unlawful, defamatory, threatening, pornographic, abusive, or libelous material, (B) containing any material that encourages conduct that could constitute a criminal offense, or (C) that violates the intellectual property rights or rights to the publicity or privacy of others; (ix) use the Services to store or transmit viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (x) interfere with or disrupt use of the Services by other Egnyte customers or to other servers or networks connected to the Services, or violate the regulations, policies, or procedures of such other networks; (xi) access or attempt to access Egnyte’s other accounts, computer systems, or networks not covered by this Agreement, through password mining or any other means; (xii) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (xiii) use the Services, or permit their use, for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Egnyte’s prior written consent.

Fees are based on the scope of use selected by Customer as made available by Egnyte to Reseller. If Customer wishes to change the scope of use, Customer is required to notify the Reseller for additional information and payment of applicable charges. If Customer upgrades or expands consumption of the Services within a Subscription Term (for example, to obtain additional storage, User access, features, or functionality) or if Customer’s use exceeds the Services ordered by Customer from a Reseller (each of the foregoing is referred to as a "Services Upgrade"), Customer agrees to pay its Reseller for the Services Upgrade at the applicable Reseller pricing (and, if not specified, then according to Egnyte’s then current pricing) for the remaining period of the applicable Subscription Term. For clarity, Customer may not decrease its Services commitment at any point during the Subscription Term. A Reseller is not authorized to make any promises or commitments on Egnyte’s behalf, and Egnyte is not bound by any obligations to Customer other than those specified in this Agreement. Customer acknowledges that Egnyte may terminate Customer’s rights to use the Services and discontinue or suspend Services if Egnyte does not receive its corresponding payment from the Reseller.

1. Ownership by Customer. As between Customer and Egnyte, Customer or its licensors own all right, title and interest in and to the Content.
2. Ownership by Egnyte. As between Egnyte and Customer, Egnyte or its licensors own all right, title, and interest in and to the Services, Egnyte Clients and all hardware, software and other items used to provide the Services. No title to or ownership of any proprietary rights related to the Services or Egnyte Clients is transferred to Customer or any User pursuant to this Agreement or any transaction contemplated hereunder. Egnyte reserves all rights not explicitly granted to Customer. Egnyte is free to use any comments, suggestions, recommendations, improvements, and other feedback provided by Customer or a User with respect to the Services for any purpose, without obligation.

1. General. Customer may wish to receive certain professional services from Egnyte’s dedicated professional services team. Such services may include a rollout plan, project management, data and permissions migration, integrations, and customizations, all as described in a mutually agreed upon Statement of Work ("SOW") accompanying the applicable order from a Reseller or directly from Customer.
2. Professional Services Ownership. Unless otherwise set forth in the applicable SOW, Egnyte shall own all rights, title, and interest in and to the PS Tools (excluding any Customer information and Content), and related intellectual property rights. During the Subscription Term and to the extent contemplated in the SOW, Egnyte provides Customer with a limited, non-exclusive, non-transferable, and terminable license to use the PS Tools solely in connection with its authorized use of the Services. Nothing herein shall be construed to assign or transfer any intellectual property rights in the PS Tools. "PS Tools" means the proprietary techniques, databases and libraries, know-how, scripts, and expertise utilized by Egnyte in providing professional services to Customer.
3. Professional Services Warranty. In regards to professional services only, Egnyte warrants that: (i) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform the professional services has the necessary knowledge and experience to perform the professional services in accordance with the relevant SOW; and (ii) the professional services will be performed for and delivered to Customer in a professional and workmanlike manner in accordance with the laws and regulations applicable to the performance of such professional services. Customer acknowledges that Egnyte’s ability to successfully perform professional services is dependent upon Customer’s provision of timely information, access to resources, and participation. If the professional services are in material nonconformance with the foregoing warranty, Egnyte will, without prejudice to its other rights and remedies under this Agreement or at law, re-perform the non-conforming portions of the professional services at no cost to Customer.

1. Mutual Warranties. Each party represents and warrants to the other that (i) it has the legal power to enter and perform under this Agreement, and (ii) the execution, delivery, and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
2. Egnyte Warranties.
   1. Egnyte warrants that the Services will perform in all material respects in accordance with the Documentation. Egnyte may modify the Documentation in its sole discretion; provided, however, that the functionality of the Services will not be materially decreased during the then current Subscription Term. Any such modifications can be accessed by Customer in the Documentation. In the event the Services are nonconforming, Egnyte will fix, provide a work around, or otherwise repair or replace the nonconforming Services, or, if Egnyte is unable to do so, terminate Customer’s access to the Services and return fees to Reseller for the Services previously paid to Egnyte for the period beginning with Customer’s notice of nonconformity through the remainder of the Subscription Term.
   2. Egnyte represents that it makes best efforts in seeking to meet the requirements set forth in the Service Level Agreement ("SLA") specified in Exhibit A. In the event of any failure to meet the SLA requirements, Egnyte will provide the remedies set forth therein.
3. Customer Warranties. Customer hereby represents and warrants that (i) Customer has all rights in the Content necessary to grant the rights of access, copying, and usage needed for Egnyte to properly perform the Services, and (ii) such access, copying, and usage does not violate any law or other agreement to which Customer is a party.
4. Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS SECTION 8, EGNYTE AND ITS SUPPLIERS AND LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EGNYTE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. EGNYTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE CONTENT WILL BE SECURE BEYOND ANY POSSIBLE THREAT.

1. Confidential Information Defined. "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Content, the Services (including the Egnyte Client), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information of a Disclosing Party includes any information the Disclosing Party has received from others that the Disclosing Party is obligated to treat as confidential or proprietary. Confidential Information will not include any information that, in each case without breach of any obligation owed to Disclosing Party: (i) is or becomes generally known to the public; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party; (iii) was independently developed by Receiving Party; or (iv) is received from a third party who is not subject to an obligation of confidentiality vis-à-vis Disclosing Party.
2. Obligations regarding Confidential Information. Receiving Party will not use or disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party will protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party, without undue delay, will notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information. The DPA contains terms pertaining to any Security Breach. For purpose of clarification, in no manner are the non-disclosure/non-use provisions contained herein intended to constrain Egnyte in responding in the normal course to Customer’s or Users’ instructions while utilizing the functionalities of the Services (i.e. a User can instruct some Services to share Content with a third party outside of Customer’s organization and Egnyte will not have a duty to monitor the Content for confidentiality considerations). Egnyte will process Content only in accordance with Customer’s and Users’ instructions.
3. Compelled Disclosures. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, Receiving Party will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure. Receiving Party will (i) take reasonable steps to limit any such provision of Confidential Information to the specific Confidential Information required by such court or agency, and (ii) continue to protect all Confidential Information disclosed in response to such order, subpoena, regulation, or process of law. Except for such required disclosure, the Confidential Information will remain subject to the terms of this Agreement and may only be disclosed as set forth in this Section 9.
4. Injunctive Relief. If Receiving Party discloses or threatens to disclose any Confidential Information of Disclosing Party in breach of this Agreement, Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts (without the need for the posting of a bond or other guarantee), it being acknowledged by the parties that any other available remedies may be inadequate.
5. Return of Confidential Information. Upon any termination of this Agreement, Receiving Party will continue to maintain the confidentiality of Disclosing Party's Confidential Information and, upon request, return to Disclosing Party or destroy (at Disclosing Party's election) all materials containing such Confidential Information.

1. Indemnification by Egnyte. Egnyte will defend Customer from and against any claims, suits, or actions made or brought against Customer by a third party ("Claim(s)") alleging that the Services infringe the intellectual property rights of that third party and will indemnify Customer against any final judgment awarded (including reasonable attorneys’ fees and costs) or final settlement made with respect to such Claim which imposes a financial obligation on Customer. In addition to Egnyte’s obligation of indemnification, if the Services become or, in Egnyte’s opinion, are likely to become, the subject of a claim of infringement, Egnyte may, at its sole option and expense, either procure for Customer the right to continue using the Services under the terms of this Agreement or replace or modify the Services to be non-infringing without material decrease in functionality. If neither of the foregoing options is reasonably practicable, in Egnyte’s judgment, Egnyte may terminate Customer’s access to the infringing Services upon 60 days’ advance written notice and refund (via Reseller) any prepaid subscription fees for the remainder of the applicable Subscription Term on a pro rata basis. Egnyte will have no liability for any Claim to the extent the Claim is based upon (i) the Content; (ii) the Services in combination with any other product, service, or device not furnished, recommended, or approved by Egnyte if such Claim would have been avoided without such combination; or (iii) Customer’s use of the Services other than in accordance with this Agreement. This Section 10.a states Customer’s exclusive remedy, and Egnyte’s sole liability to Customer, for any intellectual property claim regarding the Services.
2. Indemnification by Customer. Customer will defend Egnyte against any Claim made or brought against Egnyte by (i) a third party alleging that the Content, or Customer’s use of the Services in breach of this Agreement, infringes the intellectual property or data privacy rights of that third party and (ii) any regulatory authority as a result of Customer’s failure to abide by GxP-related rules and regulations, and Customer will indemnify Egnyte against any final judgment awarded (including reasonable attorneys’ fees and costs) or final settlement made with respect to such Claim which imposes a financial obligation on Egnyte.
3. Indemnification Process. A party’s obligation of indemnification is subject to the party requesting the indemnification: (i) promptly notifying the party providing the indemnification in writing of the existence of the Claim for which indemnification is sought; (ii) granting the party providing the indemnification sole control over the defense, negotiation, compromise and settlement of the Claim; and (iii) cooperating with the party providing the indemnification with respect to any such Claim. The party requesting the indemnification may elect to participate in any such Claim with an attorney of its own choice and at its own expense.

1. Limitation of Liability. Except for indemnification Claims, neither party's aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall exceed the cumulative fees paid by Customer to Reseller in relation to this Agreement during the twelve months preceding the incident. The limitations set forth herein also apply to Reseller and represents the maximum for which Egnyte and Reseller are collectively responsible vis-à-vis Customer (including its Users).
2. Exclusion of Consequential and Related Damages. Except in the event of property damage, personal injury, fraud, or a material misrepresentation, in no event shall either party have any liability to the other party for any lost profits or indirect, special, incidental, consequential, cover, or punitive damages, however caused, whether in contract, tort, or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.

1. Term. This Agreement will commence upon execution and will continue for the period designated in Reseller’s order to Egnyte (“Subscription Term”). After expiration of the initial Subscription Term, this Agreement will renew if the applicable order between Reseller and Egnyte has renewed or been extended, or if Reseller and Egnyte have agreed to a separate written order for Services to be provided to Customer. The renewal of this Agreement shall be for the period listed in the applicable order between Reseller and Egnyte.
2. Termination for Cause. A party may terminate this Agreement for cause immediately upon written notice: (i) for a material breach of this Agreement by the other party if the breach remains uncured 30 days after receipt of initial written notice setting forth the breach in reasonable detail or (ii) if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors, or similar proceeding.
3. Post-Termination Obligations. Within ninety days of termination of this Agreement for any reason, or a shorter period if requested in writing by Customer, Egnyte will destroy all copies of Content that remain within Egnyte’s Services infrastructure. For clarity, Customer shall have no post-termination access to the Services unless otherwise agreed in an executed order between the parties (including Egnyte).
4. Survival. The terms of any sections that by their nature are intended to extend beyond termination, including, but not limited to, Sections 6 (Ownership), 8.d (Disclaimer of Warranties), 9 (Confidentiality), 10 (Indemnification), 11 (Limitation of Liability), 12.c (Post-Termination Obligations), and 13 (General Provisions), will survive any termination of this Agreement.

1. Governing Law. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law 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.
2. Government Users. If Customer is a U.S. government entity, Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101 and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
3. Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary relationship, or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement. Egnyte may subcontract portions of the Services; provided, however, that Egnyte shall remain responsible for all such obligations under this Agreement.
4. Waiver. No failure or delay in exercising a right hereunder will constitute a waiver of such right. Except as otherwise provided herein, remedies provided in this Agreement 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 all other provisions will remain in effect.
5. Assignment. Neither party may assign any of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other (which cannot be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this Section shall be void. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
6. Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party’s reasonable control including, but not limited to, natural disasters, war, acts of terrorism, industry-wide labor disruptions, Internet outages, or governmental decrees.
7. Public Announcement. Egnyte reserves the right to release a press announcement of the execution of this Agreement and include Customer’s name on Egnyte’s customer lists or in its marketing materials, including on Egnyte’s websites; provided, however, that Egnyte will first coordinate any such actions with Customer.
8. General Compliance. 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. Customer and/or its Users’ interactions with countries and/or persons that are banned under any applicable export control laws and regulations shall be at Customer’s sole risk and liability. Further, Customer hereby takes notice of and will, to the extent applicable, comply with the general principles in Egnyte’s Business Conduct and Ethics Policy, which can be found at the following link: https://www.egnyte.com/business-conduct-and-ethics.
9. Entire Agreement. This Agreement, together with any Exhibits, constitutes the entire agreement and supersedes all prior agreements between the parties with regard to the subject matter hereof, including any non-disclosure agreement (with the confidentiality provisions of this Agreement to govern any prior disclosures of Confidential Information). In the event of any conflict of terms, this Agreement supersedes any click-through subscription agreements that may be included for the Egnyte Client. This Agreement may not be amended or modified except by a writing signed by both parties.

EXHIBIT A

SERVICE LEVEL AGREEMENT

Except as otherwise modified or defined herein, all capitalized terms in this SLA have the same meanings as set forth in the Agreement.

"Attributable Monthly Subscription Fee" means one-twelfth of the base annual fee for the Services paid by Reseller to Egnyte on behalf of the Customer.

"Emergency Maintenance" means downtime of the Service outside of the Scheduled Maintenance Window hours that is required to complete the application of urgent patches or fixes, or to undertake other urgent maintenance activities. If Emergency Maintenance is required, Egnyte will immediately contact Customer via Statuspage notifications and provide the expected start time of the Emergency Maintenance, its planned duration, and whether Egnyte expects the Services to be unavailable during the Emergency Maintenance. Customers are required to sign-up for Statuspage notifications.

"Scheduled Maintenance Window" means the window during which scheduled maintenance of the Services may be performed, which may cause the Services to be unavailable. The Scheduled Maintenance Window occurs every Saturday at 4:00AM – 7:00AM (UTC). Additional, non-impactful updates to the Services may be released periodically during the work week.

"Service Credit" means the percentage of the Attributable Monthly Subscription Fees that is awarded to Customer for a validated claim related to breach of the SLA during that month.

"Service Availability" means the percentage of total time in a given month during which the Services are at least available to Customer through a web browser, excluding the Scheduled Maintenance Window and Emergency Maintenance.

1. SLA Target. Egnyte targets at least 99.9% Service Availability during each calendar month.
2. Remedy. If the Service Availability is less than 99.9%, and if Customer has fulfilled all of its obligations under the Agreement and this SLA, Egnyte (either directly or through the Reseller) will provide Customer with a Service Credit applied to the month in which the failure to meet this SLA has occurred. The Service Credit will be calculated in accordance with the table below. Customer may terminate the Agreement upon 30 days’ written notice if Service Availability is less than 97% (i) for one or more validated SLA claims submitted by Customer under this SLA in each of three consecutive calendar months or (ii) one or more validated SLA claims submitted by Customer under this SLA in each of three out of five consecutive calendar months.

   % of Service Availability per Calendar Month	Service Credit
   99.9% to 99.5%	10%
   99.4% to 99.0%	25%
   <99.0%	50%

1. SLA Claims Generally.
   1. Customer must notify Egnyte via email to slaclaim@egnyte.com within fifteen business days from the date of the incident Customer first believes entitles it to receive a remedy under the SLA set forth above.
   2. For all claims subject to validation by Egnyte, Egnyte will use log files, database records, audit logs, and any other information available to validate claims and make a good faith judgment on the applicability of Service Credits to the incident. Egnyte will make information used to validate the SLA claim available for auditing by Customer at Customer’s request.
   3. The remedies set forth herein represent Customer's sole and exclusive remedy for Egnyte’s failure to meet the SLA defined in this Exhibit.
2. Service Credits.
   1. The maximum credit Customer is entitled to receive in any given month is calculated against the Attributable Monthly Subscription Fee for the Services.
   2. Subject to the below regarding an event of non-renewal, Service Credits will be redeemed at the time a Subscription Term is renewed. Upon Customer's renewal, Service Credits earned by Customer under this SLA will be applied against amounts due for the renewal Subscription Term. In no event will the Service Credits applied to the fees due for the renewal Subscription Term exceed the amounts due for that Subscription Term. If Service Credits cannot be applied to future Subscription Terms because the Agreement has expired or been terminated, Egnyte (either directly or through the Reseller) will promptly pay Customer the amount of the credit, except that Customer will not receive a refund if Egnyte terminated the Agreement for Customer’s or Reseller’s material uncured breach.
3. Exclusions.
   1. Customer will not have any remedies under this SLA in connection with any Force Majeure Event as defined in the Agreement.
   2. Customer will not have any remedies under this SLA to the extent a Service Credit claim is due to: (A) use of the Services outside the scope described in the Agreement and the Documentation; (B) Customer equipment, software, or other technology or third party equipment, software, or other technology not under the direct control of Egnyte; (C) failure of Customer to meet the configuration requirements for Customer equipment set forth in the Documentation; (D) any actions or inactions of Customer or any other third party not under the direct control of Egnyte; or (E) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties, unless such attacks succeeded due to Egnyte’s failure to meet its security requirements described in this Agreement.