Terms of Service

Last updated 19 September 2022

This Panzura Data Services End User License Agreement (“Agreement” or “EULA”) is legally binding between the purchasing entity identified on the applicable ordering document (e.g., quote or purchase order) and, to the extend applicable, any person or entity that (i) uses, accesses or browses Panzura Data Services (“PDS”), including, but not limited to, any PDS related applications, software, websites or other properties owned or operated by Panzura, or (ii) registers for a PDS or Company Connect account (“User”) and Panzura, LLC (“Panzura”) regarding User’s purchase, evaluation, use, and/or license of PDS. This Agreement is effective as of the earlier of the date set forth on the applicable ordering document or the date that User accepted this Agreement as described above.

1. DEFINITIONS.

1.1.“Content” refers to all data, information and material that User uploads into and stores on its PDS account. User acknowledges, understands and agrees that Panzura does not control, verify, or endorse any of the Content and that User is at all times solely responsible and liable for: (a) all Content, including, but not limited to, all Content that User places in its PDS account and shares through PDS; and (b) making sure that User has all the rights, including but not limited to, disclosure rights, it needs to the Content. Additionally, User hereby represents, warrants and covenants that in its storing, using and/or transmitting of Content User will not violate any terms and conditions set forth in this EULA or any applicable laws. Furthermore, User hereby agrees to provide Panzura, as well as Panzura’s affiliates, subsidiaries, executives, officers, directors, employees, contractors, agents, representatives, advisors and service providers acting on Panzura’s behalf, the right to transmit, process, use and disclose Content and other information of User’s which Panzura obtains as part of its use of PDS, but only: (i) as necessary, in the discretion of Panzura, for Panzura to provide PDS; (ii) as otherwise permitted, in the discretion of Panzura, by this EULA; (iii) as otherwise required, in the discretion of Panzura, by applicable law(s), regulation(s) or order(s); or (iv) as otherwise needed, in the discretion of Panzura, to respond to an emergency.

1.2 “Documentation” means any user instructions, manuals, and online help files regarding the use of PDS that are generally provided by Panzura in connection with PDS.

1.3. “Panzura Data Services” means Panzura’s cloudbased data management platform owned and operated by Panzura.

2. PDS LICENSES AND RESTRICTIONS.

2.1. License. Subject to the terms and conditions of this Agreement, Panzura grants to User a non-exclusive, non-sublicensable and non-transferable license to (a) use PDS solely for its own internal needs; and (b) use the Documentation in connection with the permitted use of PDS.

2.2. Restrictions and Acceptable Use Provisions. User will not: (i) copy or reproduce PDS; (ii) modify or create any derivative works of PDS; (iii) decompile, disassemble, or reverse engineer PDS; (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to PDS; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in PDS; (vi) provide access to or disclose PDS to any third party, or use PDS to create or provide any offering or service, whether or not it is similar or competitive to PDS, including without limitation processing third party data files as a consultant, service provider or otherwise; (vii) extract or use any software or content that is furnished by Panzura except as part of PDS; (viii) use PDS for any unlawful purpose; (ix) use PDS in connection with the storage or transmission of infringing, libelous, or otherwise unlawful or tortuous material, or in violation of any third-party privacy rights; or (x) publish or disclose to any third party any performance or benchmark tests or analyses relating to the Product, except for internal use by the User.

In order to operate and provide PDS, Panzura collects certain data and information of or about User. Panzura collects, stores, retains, uses, protects and purges that data and information as described in Panzura’s Privacy Policy located at https://panzura.com/privacy-policy/ (“Privacy Policy”). User acknowledges, understands and agrees that its use of PDS is at all times subject to the Privacy Policy. User also acknowledges, understands and agrees that its use of PDS shall at times be subject to, in accordance with, the terms and conditions set forth in Panzura’s Acceptable Use Provisions located in this Section 2.2 of the Agreement (“Acceptable Use Provisions”).

2.3 Copyright Complaints and Removal Policy.

Panzura respects the intellectual property of others and will respond to notices of alleged copyright infringement that comply, in the discretion of Panzura, with applicable law(s). Panzura reserves the right to delete or disable Content alleged to violate copyright laws or this EULA and also reserves the right to terminate the PDS account(s) of any violators.

3. INFRASTRUCTURE REQUIREMENTS.User is responsible for acquiring, installing, configuring, maintaining, securing, and backing up all systems architecture, information technology infrastructure, networking (including Internet), and storage components that connect to PDS. In order to maintain critical PDS infrastructure, User hereby expressly consents to updates Panzura may install, at its sole discretion, from time to time with respect to the PDS Plugin on CloudFS nodes that run in User’s environment.
4. PDS ACCOUNT. Certain aspects of PDS may require User and individual users within User’s organization to obtain a PDS account by completing a registration form and designating a user ID and password. When registering for a PDS account, User and its individual users must: (a) provide true, current and complete information about itself on the registration form; and (b) maintain such information so it continues to be true, current and complete. User is entirely responsible for all materials, data and information that it and its individual users upload, post or otherwise transmit via PDS and, unless otherwise expressly agreed herein, Panzura shall have no responsibility or liability with respect to the same. User’s individual users may only use their PDS account and User shall at all times remain solely responsible and liable for its PDS account. If User at any time becomes aware of any unauthorized use of PDS or its PDS account, User shall immediately contact Panzura Support at support@panzura.com.

By registering with Panzura or signing up for PDS and/or a PDS account, User acknowledges, understands and agrees, on behalf of itself and its individual users, that Panzura may send User and its individual users, via email communication or otherwise, information regarding PDS and other Panzura products and/or services, including, but not limited to, any of the following: (a) notices about User’s use of PDS, such as notices of violations of use; (b) updates to PDS and new features or products; and (c) promotional information and materials regarding Panzura’s products and services. User and its individual users may review the settings in the respective accounts to control the messages it receives from Panzura and, if User and its individual users no longer wish to receive messages of the aforementioned nature or variety from Panzura, may unsubscribe by following the instructions in the applicable message.

Notices emailed to User or its individual users will be considered given and received when the email is sent. If User does not consent to receive notices (other than promotional materials) electronically, it must stop using PDS immediately.

5. TERM, TERMINATION AND UPDATES.

5.1. Term of Agreement. This Agreement will be effective from the date of purchase of PDS and shall end upon the earlier of: (i) the end of the License Term (if any) specified in the applicable ordering document (and any renewal thereof), or (ii) the termination of this Agreement pursuant to Section 5.3.

5.2. Term of PDS Licenses. The PDS License Term shall be specified in the applicable ordering document.

5.3. Termination. This Agreement may be terminated for cause by either party, in the event that the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate.

5.4. Effect of Termination. Upon termination of this Agreement, all rights granted to User with respect to PDS will terminate, and User will immediately discontinue use of PDS and any of Panzura’s Confidential Information. User will certify in writing to Panzura within thirty (30) days of the applicable termination that all Confidential Information has been returned or destroyed in accordance with Panzura’s instructions and expectations (as determined in the sole discretion of Panzura).

5.5 Suspension and Termination of PDS. Panzura reserves the right to suspend or terminate User’s access to PDS and/or User’s PDS account at any time in its sole discretion. User hereby acknowledges, understands and agrees that in the event User’s PDS account is suspended or terminated, it may no longer have access to the Content that is stored using PDS and/or otherwise contained in its PDS account.

Upon termination User may request access to its Content, which Panzura will make available, except in cases where Panzura has terminated User’s account due to User’s violation of this EULA. User must make such a request by doing so in a writing delivered to Panzura at legal@panzura.com within fourteen (14) days following the applicable termination, and User’s failure to deliver such written request within the aforementioned timeline may automatically result in any Content being purged by Panzura and being unretrievable thereafter.

5.6 Term of Content Storage. PDS is provided from the United States. By using and accessing PDS, User acknowledges, understands and agrees to the storage of Content and any other personal information in the United States. However, User also acknowledges, understands and agrees that User or other third parties that it collaborates with, may access PDS, including, but not limited to, applicable Content, from outside of the United States (subject at all times to applicable law(s), regulation(s) and order(s)) and that nothing shall otherwise prohibit the processing of Content or other information outside of the United States.

Panzura will at all times act in accordance with applicable laws, regulations and orders when determining the appropriate period for the storage and retention of User’s Content. Panzura’s standard retention period for all Content will be no greater than ninety (90) days unless otherwise required by applicable laws, regulations and orders. Panzura will continue to store User’s Content until the applicable retention period has expired, at which time, it will be automatically and without notice entitled to purge and dispose of all Content in the manner it deems necessary unless otherwise expressly agreed upon in writing by User and Panzura. User hereby acknowledges, understands and agrees that extended retention of Content beyond the original ninety (90) day retention period will require additional payment of fees by User.

 

5.7 UPDATES TO PDS. User hereby acknowledges, understands and agrees that Panzura may at any time and in its sole discretion make any changes, updates or enhancements to PDS that it deems necessary or otherwise desirable. User also hereby acknowledges, understands and agrees that Panzura may at any time and in its sole discretion add or remove any functionalities or features of PDS or suspend or stop, temporarily or permanently, PDS altogether. In order to maintain compatibility between PDS and CloudFS nodes running in the User environment, User hereby expressly consents to updates Panzura may install, at its sole discretion, from time to time with respect to the PDS Plugin on CloudFS nodes that run in User’s environment.

5.8. Survival. Section 2.2, 2.3, 3, 4, 5, 6, 7, 9, 10, 11, 12, 15, 16 and 17 shall survive the termination of this Agreement.

6. PAYMENT.User shall pay all amounts net thirty (30) days from the date of invoice. PDS will be invoiced at time of shipment. Fees for term-based or subscription PDS licenses and Product Support will be invoiced for all years purchased and paid at the beginning of the period. Any fees for professional services will be invoiced according to the SOW. All fees are nonrefundable. User will be responsible for all taxes resulting from the purchases other than taxes on Panzura’s net income.
7. NO WARRANTY OR CONDITIONS. PANZURA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO PDS AND ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO USER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT PDS WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT USER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
8. PRODUCT SUPPORT.

8.1. During User’s paid Product Support subscription, Panzura will provide Product Support to User at the applicable service level, as described at www.panzura.com/support/.

8.2. Panzura will have no obligation to provide Product Support for any version of PDS running on any platform that is not supported by Panzura or any version of PDS that has reached its end of support life.

8.3. The initial Product Support period will be specified in the applicable ordering document from the effective date of this Agreement. Reinstatement of lapsed Product Support, if any, is subject to Panzura’s then-current support services reinstatement policy and fees in effect on the date the reinstatement is granted.

8.4. Panzura reserves the right to charge additional support fees at its then standard professional services rates for support services performed in connection with reported problems which are later determined to have been due to User error or third-party hardware or software. Any configuration or integration work must be separately quoted by Panzura’s professional services organization and agreed by the parties in writing.

8.5   By accepting the terms of this Agreement, User understands and acknowledges that Panzura Data Services Support Assistance (allowing Panzura Support to login to User’s Data Services environment as necessary to provide User with support) is automatically enabled for all new User accounts created after May 9, 2022. User may opt out of automatic Support Assistance by written notification to legal@panzura.com.

9. INDEMNIFICATION.

9.1 Panzura agrees that it will, at its own expense, defend all suits or proceedings instituted against User and pay any award or damages finally assessed against User in such suits or proceedings, insofar as the same are based on any third party claim that PDS or any parts thereof furnished under this Agreement constitute an infringement in the United States of any United States patent, copyright trade secret or other intellectual property right of a third party; provided, however, that User (i) gives immediate written notice to Panzura of the institution of the suit or proceedings, (ii) gives Panzura sole control of the defense and settlement of such suits or proceedings, and (iii) gives Panzura all needed information, assistance, and authority to enable Panzura to do so. Notwithstanding the foregoing, Panzura will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of PDS in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Panzura, (b) any use of PDS that is not its intended use; or (c) any modification of PDS by anybody other than Panzura. In the event that Panzura believes that any claim is likely to occur, Panzura may, at its sole option and expense, either (i) secure for User the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES PANZURA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

9.2 User agrees to indemnify, defend, and hold Panzura, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with User’s or its representative(s)’ use of PDS or User Content, including without limitation any claim that the collection, transfer, storage or use of any User Content infringes the rights of a third party or any law, regulation or directive.

10. LIMITATION OF LIABILITY.PANZURA’S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT WILL PANZURA BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) WHETHER OR NOT PANZURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER, CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST USER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

PDS IS NOT DESIGNED, INTENDED, OR WARRANTED FOR USE IN ANY AERONAUTICAL, NUCLEAR, MEDICAL, LIFE-SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE USE OF THE SUPPORTED SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR.

PANZURA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO PDS AND ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO USER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT PDS WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT USER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

11. CONFIDENTIALITY.“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies. Without limiting the foregoing, PDS, its structure, organization, code, and related documentation are the “Confidential Information” of Panzura. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.
12. PROPRIETARY RIGHTS.PDS contains Panzura’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. Panzura reserves all right, title and interest to PDS, including without limitation any modifications, enhancements, improvements, customizations, maintenance releases, revisions or derivative works thereof. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right under this Agreement.
13. PLATFORM PRODUCT USE SPECIFIC LICENSE AND TERMS. If User purchases a license to use any of the Platform Products, the following additional terms apply to User:

“Platform Products” are the Panzura API(s) (defined as an application-programming interface used by User to access functionality provided by Panzura) that provide programmatic access to the Panzura Service Platform and any additional Platform Product features and functionalities. The Platform Products include certain features that permit a user to view, search and analyze content if set forth in User’s order.

User agrees to only incorporate the API into the Platform Applications (applications used by or on behalf of User that use the API for the purposes of accessing the Panzura service) for the sole purpose of accessing certain functionality subscribed to by User, solely through the API and associated tools and services.

User will ensure that its subscription and usage of the Platform Products is at all times in conformance with the Platform Use Limits, this EULA and applicable law. Platform Use Limits shall be defined as the amount of managed storage within Data Services that was purchased for User’s account. This number can include the managed capacity on the Panzura CloudFS system, subscribed to by User, and/or the total max capacity of User’s third-party storage device(s). If User exceeds its subscription or Platform Use Limits, additional fees will be due and/or reasonable restrictions may be placed on its account until any such excess usage is adequately eliminated by User.

User may not co-brand any Platform Products or use any Panzura trademarks, logos, or other Panzura marks to promote and market the Platform Products without Panzura’s prior written consent.

User will not, and will make sure that the Platform Application does not and User will not permit use of the Platform Application: (a) to violate this EULA; (b) to perform hidden activities without Platform Application User consent (such as downloading components or other software); (c) that may alter a Platform Application User’s system without permission from the Platform Application User; (d) impersonate, or misrepresent an affiliation with, any person or entity; (e) use in any manner not authorized by a Platform Application User; except as otherwise authorized by a Platform Application User with respect to such Platform Application User’s Content; (f) mine or analyze any Content transmitted to, retrieved from or stored in PDS (including, but not limited to, through spiders, robots, crawlers, data mining tools, scrapers, or other automated means, or services employing any such means); (g) circumvent any security measures or content filtering devices; (h) use or affect the Platform Products in any manner that could damage, disable, overburden or impair the Platform Products (including, but not limited to, flooding the Platform Products with an excessive amount of data or content); or (i) permit use in connection with any purposes or intended application which involves risks or dangers that could lead to death, serious bodily injury, severe physical or property damage, or use for purposes that otherwise require significant safety precautions (e.g. uses of the Platform Products in connection with operation of emergency services, air traffic control, mass transport systems, or nuclear facilities).

14. THIRD PARTY SERVICES. Panzura may make available to User optional third-party applications, services or products, for use in connection with PDS (“Third-Party Products”). These Third-Party Products are not necessary for the use of PDS, and any exchange of any information, license, payments, etc. between User and the applicable third party provider of the applicable Third-Party Product(s), is solely between User and the applicable third party provider of the applicable Third-Party Product(s). Panzura makes no representations or warranties of any kind (and expressly disclaims any and all of the same) and assumes no liability of any kind for User’s use of such Third-Party Products.

Part of PDS (including Platform Products and Consulting Services) may incorporate and consist of software components provided by third parties that are subject to opensource copyright license agreements (“Open Source Components”). User’s use of the Open Source Components will be governed by and subject to the applicable open source license under which the Open Source Components are distributed. User agrees that it will be bound by any and all such license agreements. Any Open Source Components provided with or contained in PDS is provided AS-IS and is without any warranty of any kind. Where required by the terms of relevant open source software licenses, Panzura provides the source code form of Open Source Components upon written request sent to the following email address: legal@panzura.com.

15. DATA PROTECTION. Each party shall comply with its respective obligations under applicable data protection laws. Neither party shall do any act that puts the other party in breach of its obligations under this Section, nor shall anything contained in this EULA be deemed to prevent any party from taking any action it reasonably deems necessary to comply with data protection laws. User agrees that during the course of its use of PDS under this EULA: (i) with respect to data User collects, accesses or otherwise uses, User alone shall determine the purpose for which and the manner in which such data are or will be processed; and (ii) User is the data controller with respect to all such data User may process. Panzura shall at all times act in accordance with the requirements of data protection laws and User shall fully indemnify and hold Panzura harmless against any loss, damages, liability, and costs (including attorney’s fees) incurred by Panzura as a result of any breach of data protection laws by User.

16. CHANGES TO THIS EULA. Panzura at all times reserves the right to at any time modify this EULA, including, but not limited to, any of the terms and conditions set forth herein, at its sole discretion. The most current version of this EULA will at all times be placed at www.panzura.com/eula. User’s continued use of PDS after Panzura publishes an updated version of this EULA, if at all, shall be deemed as User’s acceptance of, and consent to, the updated version of this EULA.

Any terms or conditions appearing in any purchase order, acknowledgement, or confirmation that are different from or in addition to those specified in this EULA will not at any time be binding upon Panzura or any of its affiliates or subsidiaries unless otherwise expressly agreed in writing by Panzura.

17. MISCELLANEOUS.This Agreement will be governed by and construed under the laws of the State of Texas without regard to its conflict of laws provisions. The federal and state courts in Collin County, Texas will have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals, and understandings between them. Without limiting the generality of the foregoing, this Agreement will supersede the terms of User’s form of purchase order, acknowledgment or other business forms notwithstanding Panzura’s acceptance or acknowledgment of such business forms. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. User agrees not to export PDS in violation of the laws and regulations of the United States or any other nation. In no event may User assign this Agreement or its rights and obligations under this Agreement. Panzura shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement will be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Any notices or communication under this Agreement will be in writing and will be hand delivered, sent by registered or certified mail return receipt requested, by nationally-recognized express courier with a tracking system, by email to legal@panzura.com, or by confirmed facsimile transmission to the party receiving such communication, at the receiving party’s address set forth on the applicable ordering document, or such other address as a party may in the future specify to the other party.

Panzura Enhanced Ransomware Protection Addendum

This Panzura Data Services End User License Agreement Panzura Enhanced Ransomware Protection Addendum (the “Panzura Enhanced Ransomware Protection Addendum”) is legally binding between the purchasing entity identified on the applicable ordering document (e.g., quote or purchase order) (“Customer”) and Panzura, LLC (“Panzura”) regarding Customer’s purchase, evaluation, and/or license of Panzura Enhanced Ransomware Protection (the “Solution”) for Panzura Data Services (“PDS”).

By using or accessing the Solution or assigning a Solution license to an applicable CloudFS deployment, Customer agrees to be bound by all of the terms set forth in the applicable PDS EULA and this Panzura Enhanced Ransomware Protection Addendum (each as determined by Panzura in its sole discretion).

The applicable Solution license is only for CloudFS deployments utilizing SMB network file access protocol. CloudFS deployments that operate NFS and Mixed-Mode network file access protocol are not compatible with or supported by this Solution. Additionally, Solution licenses must be purchased and assigned to each CloudFS deployment. THE SOLUTION DOES NOT PREVENT RANSOMWARE ATTACKS. IT SENDS ALERTS TO THE USERS CONFIGURED FOR RECEIVING SUCH ALERTS, AS DESIGNATED BY THE CUSTOMER IN THEIR PDS ACCOUNT, UPON DETECTING A RANSOMWARE ATTACK.

Each Solution license requires a PDS Audit license. A valid PDS Audit license that covers the entire subscription period of the applicable Solution license (as set forth in the applicable ordering document) is required for Solution functionality. The Audit license must at all times be enabled on each Node in a CloudFS deployment and the Node must be configured for all PDS Audit Actions with no file exclusions. All Nodes must be running CloudFS 8.0 or later.  If any of the above conditions are not met, the Solution is not responsible.

Last updated: 19 September 2022

END USER LICENSE AGREEMENT

This End User License Agreement (“EULA”), effective as of the earlier date of the date set forth on the applicable ordering document or the date Customer (as defined below) accepts this EULA via any of the means contemplated in Section 2 hereof, is entered into and legally binding by and between Panzura, LLC (“Panzura”) and the purchasing entity identified on the applicable ordering document (“Customer”).

1. Definitions.

1.1. “Hardware Product(s)” means the hardware product(s), if any, that are described in the applicable ordering document.

1.2. “Software” means Panzura’s commercially released machine-executable object code version of its proprietary software referenced, and as may be more fully described, in the applicable ordering document.

1.3. “Product(s)” means collectively, the Hardware Product(s) and the Software.

1.4. “Documentation” means any user instructions, manuals, and online help files regarding the use of the Product(s) that are provided to Customer by or on behalf of Panzura.

1.5. “Customer Content” means any data, information, sound, text, images, and other content submitted by Customer to or through the Product(s).

1.6. The term “You” means Customer.

2. Agreement to Terms. PLEASE READ THIS EULA CAREFULLY. BY CHECKING THE “ACCEPT” BUTTON BELOW, OPENING THE PACKAGE, DOWNLOADING ANY SOFTWARE, OR USING ANY HARDWARE PRODUCT(S) AND/OR SOFTWARE, YOU ARE EXPRESSLY ACKNOWLEDGING AND AGREEING THAT: (a) YOU PURCHASED THE PRODUCT(S) FROM AN APPROVED SOURCE; (b) YOU FULLY UNDERSTAND ALL TERMS AND CONDITIONS SET FORTH IN THIS EULA; AND (c) YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITONS SET FORTH IN THIS EULA. FOR PURPOSES OF THIS EULA, AN “APPROVED SOURCE” MEANS (a) PANZURA; OR (b) A DISTRIBUTOR, RESELLER, OR SYSTEMS INTEGRATOR AUTHORIZED BY PANZURA TO DISTRIBUTE AND/OR RESELL THE APPLICABLE PANZURA HARDWARE OR SOFTWARE TO END USERS WITHIN CUSTOMER’S TERRIITORY. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS EULA, YOU SHALL: (a) IMMEDIATELY NOTIFY PANZURA OF THE SAME IN WRITING; (b) IMMEDIATELY CLICK THE “DO NOT ACCEPT” BUTTON (WHICH SHOULD DISCONTINUE THE INSTALLATION PROCESS); (c) IMMEDIATELY RETURN THE PRODUCT TO THE PLACE OF PURCHASE (IF APPLICABLE); AND (d) NOT DOWNLOAD THE APPLICABLE PRODUCT(S). IF CUSTOMER IS A CORPORATION OR OTHER FORM OF LEGAL ENTITY AND THIS THIS EULA IS BEING ENTERED INTO ON CUSTOMER’S BEHALF BY AN INDIVIDUAL, THE INDIVIDUAL ENTERING INTO THIS EULA ON CUSTOMER’S BEHALF HEREBY EXPRESSLY REPRESENTS AND WARRANTS THAT HE/SHE HAS THE FULL AUTHORITY TO ENTER INTO THIS EULA ON CUSTOMER’S BEHALF AND THE FULL AUTHORITY TO BIND CUSTOMER TO THIS EULA AND ALL TERMS AND CONDITIONS SET FORTH IN THIS EULA (INCLUDING, BUT NOT LIMITED TO, ALL OBLIGATIONS OF CUSTOMER CONTEMPLATED IN THIS EULA).

3. Software Licenses and Restrictions.

3.1. Subject to the terms and conditions of this EULA, Panzura grants to Customer a non-exclusive, non-sublicensable, and non-transferable license to: (a) use the Software, including any agreed upgrades, updates and/or bug fixes thereto or modified versions thereof, solely for its own internal business needs; and (b) use the Documentation only in connection with the permitted use of the Product(s) (as such permitted use is determined by Panzura in its sole discretion). This license is personal to Customer and is restricted to use consistent with the total number of authorized sites, servers, features, functions, ports, and/or tags for which the Customer has, in accordance with the applicable ordering document, fully and finally paid to the applicable Approved Source all applicable license fees and other amounts.

3.2. Customer shall not: (a) copy or reproduce any Product (except as permitted under applicable copyright law with respect to back-up or archival copies); (b) modify or create any derivative works of any Product; (c) decompile, disassemble, or reverse engineer (or permit, directly or indirectly, any third party, including, but not limited to, any of Customer’s employees, contractors, officers, directors, members, managers, partners, shareholders, agents, advisors or representatives, to decompile, disassemble, or reverse engineer) any Product, whether to establish the source code thereof or otherwise; (d) sell, distribute, disclose, market, rent, lease, or transfer to any third party any portion of any Product, including, but not limited to, any portion of any Software, or use any Product, including, but not limited to, any Software, in any service bureau arrangement, facility management or third party training; (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in or on any Product; (f) provide access to or disclose any Product to any third party; (g) use any Product to create or provide any offering or service, whether or not it is similar or competitive to any Product, including, but not limited to, processing third party data files as a consultant or service provider; (h) extract or use any software or content that is furnished by or on behalf of Panzura except as part of the applicable Product(s); (i) use any Product for any unlawful purpose; (j) use any Product in connection with the storage or transmission of infringing, libellous, or otherwise unlawful or tortuous material, or in violation of any third-party privacy rights; (k) publish or disclose to any third party any performance or benchmark tests or analyses relating to any Product, except for internal use by Customer; or (l) make error corrections to any Product, including, but not limited to, any Software, or permit, directly or indirectly, any third party to do so.

4. Upgrades and Copies. Notwithstanding any other provision set forth in this EULA, Panzura and Customer hereby expressly acknowledge and agree that: (a) Customer has no license or right to make or use any additional copies or upgrades of any Product(s) unless Customer, at the time of making or acquiring such copy or upgrade, already holds a valid license to the original Software and has fully and finally paid to the applicable Approved Source all applicable fees (as determined by Panzura in its sole discretion) for the upgrade or additional copies; (b) use of upgrades is limited to Product(s) supplied to Customer by an Approved Source for which Customer is the original end user or purchaser or otherwise, as determined by Panzura in its sole discretion, holds a valid license to use the applicable Product(s) which is/are being upgraded; and (c) the making and use of additional copies is limited to necessary backup purposes only (as determined by Panzura in its sole discretion). In reproducing any Software under applicable copyright law with respect to back-up or archival copies, Customer shall reproduce and include all proprietary, confidentiality, copyright, patent, and trademark notices and legends of Panzura and its licensors that are contained in and on such Software.

Delivery and Title. To the extent applicable, delivery of Product(s) shall occur FOB Panzura’s point of shipment to a common carrier whereupon risk of loss to the Product(s) shall pass to Customer. Customer shall be responsible for all freight, handling, and insurance charges.

6. Term and Termination.
6.1. This EULA will be effective from the date of purchase of the applicable Product(s) and shall end upon the earlier of: (a) the end of the License Term specified in the applicable ordering document, if any, and any renewal thereof; or (b) the termination of this EULA pursuant to Section 6.2. In the case of an evaluation of any Product(s), this EULA will terminate automatically and without notice terminate at the conclusion of the evaluation period as stated on the applicable ordering document, unless Customer purchases and/or licenses the applicable Product(s) prior to the conclusion of the evaluation period.

6.2. This EULA may be terminated for cause by either party in the event that the other party commits a material breach of this EULA and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate. Notwithstanding the foregoing, Customer’s breach of its obligations arising under Section 3 (Software License and Restrictions) or Section 13 (Confidentiality) shall be deemed a material breach of this EULA that cannot be cured and shall allow Panzura to immediately terminate this EULA. Additionally, this EULA may be terminated without cause by Panzura upon no less than ninety (90) days written notice to Customer.

6.3. Upon termination of this EULA, all rights granted to Customer will terminate with respect to all Product(s), including, but not limited to, all applicable Software, and Documentation, and Customer will immediately discontinue use of all Product(s), including, but not limited to, all Software, Documentation and all of Panzura’s Confidential Information. Upon request by Panzura, Customer will within seven (7) days thereof certify in writing to Panzura that all Product(s), including, but not limited to, all Software, as well as any and all copies thereof and any and all Confidential Information of Panzura, have either been returned to Panzura or destroyed in accordance with Panzura’s written instructions. In addition, if title has not passed to Customer with respect to any Hardware Product(s), if any, Customer will, at its sole expense, immediately package and return any and all such Hardware Product(s) to Panzura in accordance with Panzura’s written instructions.

6.4. Sections 3, 4, 6, 8, 9, 11, 12, 13, 14, 16, 18, and 19 shall survive the termination of this EULA.

Payment. Unless otherwise set forth in an applicable ordering document, Customer shall pay all amounts due net thirty (30) days from the date of invoice. All fees are nonrefundable. Customer will be responsible for all taxes associated with or resulting from the purchases or licensing of any Product(s) other than taxes on Panzura’s or an Authorized Source’s net income.

Limited Warranty.

8.1. Panzura warrants for a period of ninety (90) days from the date of shipment or other applicable form of delivery that: (a) the Hardware Product(s), if any, will be free from defects in materials and workmanship; and (b) the applicable Software will substantially conform to the applicable Documentation.

8.2. The exclusive liability of Panzura, and the sole remedy of Customer, with respect to any breach of any of the above-described warranties shall be limited to Panzura replacing or repairing, or, at Panzura’s option, refunding the purchase price of the Product(s) to which the breach of warranty applies. With respect to Software, repair or replacement is limited to providing maintenance releases of the applicable Software that Panzura generally makes available from time to time.

8.3. The Product(s) contain some components subject to open source software, freeware, shareware, or similar licensing or distribution models (“Open Source Components”). Without limiting the generality of the foregoing, Panzura’s warranty obligations under this EULA do not apply to Open Source Components.

Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 ABOVE, PANZURA, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO ANY PRODUCT(S) AND DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS EULA OR OTHERWISE ASSOCIATED WITH ANY PRODUCT(S), INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY AND ALL WARRANTIES THAT THE PRODUCT(S) WILL BE UNINTERRUPTED AND/OR ERROR FREE, AND ANY AND ALL WARRANTIES THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PRODUCT(S), INCLUDING, BUT NOT LIMITED TO, THE SOFTWARE, IS NOT DESIGNED FOR ANY CRITICAL APPLICATIONS AND THEREFORE PANZURA PROVIDES NO WARRANTY THAT ANY PRODUCT(S) IS/ARE FIT FOR CRITICAL APPLICATIONS. “CRITICAL APPLICATIONS” MEANS THE LIFE SUPPORT SYSTEMS OR THE LIFE SUPPORT MARKET, MEDICAL APPLICATIONS, CRITICAL CARE APPLICATIONS, CONNECTIONS TO IMPLANTED MEDICAL DEVICES, COMMERCIAL TRANSPORTATION OR AVIATION, NUCLEAR FACILITIES OR SYSTEMS, OR ANY OTHER APPLICATIONS WHERE PRODUCT FAILURE COULD LEAD TO INJURY TO PERSONS, LOSS OF LIFE, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. PANZURA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF ANY PRODUCT(S) IN ANY CRITICAL APPLICATIONS.
Product Support.

10.1. During Customer’s paid Product Support subscription period (as set forth in the applicable ordering document or otherwise agreed in writing by Panzura), Panzura will provide Product support to Customer at the applicable service level (as determined by Panzura in its sole discretion), as described at www.panzura.com/support/.

10.2. Panzura will have no obligation to provide Product support for: (a) Hardware Products that have been opened or modified except by Panzura authorized personnel; (b) Hardware Products exposed to environmental conditions (temperature, power, humidity) outside the recommended guidelines; (c) improper installation of any Hardware Product(s) or Software; (d) any modification of any Software not made by Panzura or otherwise expressly pre-approved in writing by Panzura; (e) any version of any Software running on any platform that is not supported by Panzura; or (f) any Hardware Product or version of any Software that has reached its end of support life (as determined by Panzura in its sole discretion).

10.3. Unless otherwise agreed in writing by Panzura, the applicable Product Support subscription period will be specified in the applicable ordering document. Reinstatement of lapsed Product Support, if any, is subject to Panzura’s then-current support services reinstatement policy and fees in effect on the date the reinstatement is granted.

10.4. Panzura reserves the right to charge additional Product support fees at its then standard professional services rates for Product support services performed in connection with reported problems which are later determined to have been due to Customer error or any third-party hardware or software. Any configuration or integration work must be separately quoted by Panzura’s professional services organization and agreed by the parties in writing before Panzura will have any obligations with respect to the same.

Indemnification.

11.1. Panzura agrees that it will, at its own expense, defend all suits or proceedings instituted against Customer by any third party and pay any award or damages finally assessed against Customer in such third-party suits or proceedings insofar as the same are based on any third party claim that the Product(s) or any parts thereof furnished under this EULA constitute an infringement in the United States of any United States patent, copyright, or other intellectual property right of a third party; provided, however, that Customer gives Panzura: (a) immediate written notice of the institution of the suit or proceedings, (b) sole control of the defense and settlement of such suits or proceedings; and (c) all needed information, assistance and authority to enable Panzura to do so. Notwithstanding the foregoing, Panzura will not be responsible for, and the foregoing indemnity obligation shall not apply to: (x) any use of any Product(s) in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Panzura, (y) any use of any Product(s) that is outside their intended use; or (z) any modification of any Product(s) by any party other than Panzura. In the event that Panzura believes that any claim is likely to occur, Panzura may, at its sole option and expense, either (i) secure for Customer the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES PANZURA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

11.2. Customer agrees to indemnify, defend, and hold Panzura and its directors, officers, employees, and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including without limitation reasonable attorneys’ fees, arising out of or related to any Customer Content, including, without limitation, any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive, or any unauthorized use of any Product(s) by Customer or any of its employees, officers, directors, members, managers, partners, shareholders, contractors, agents, representatives, affiliates or subsidiaries. For purposes of this EULA, “unauthorized use” shall mean any use of any Product(s) that is not expressly authorized under the provisions set forth in this EULA or any use of any Product(s) that is not in strict accordance with the applicable Documentation.

Limitation of Liability. PANZURA’S TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT OF MONEY PAID FOR THE SPECIFIC PRODUCT(S) FROM WHICH THE CLAIM AROSE. IN NO EVENT WILL PANZURA BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT PANZURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Customer hereby expressly acknowledges and agrees that Panzura has set its prices for the Product(s) and entered into this EULA in reliance upon the disclaimers of warranty set forth in Section 9 of this EULA and the limitations of liability set forth in this Section 12 of this EULA, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

Confidentiality. “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code, specifications, trade secrets, development plans, technical information, business forecasts, and strategies. Without limiting the foregoing, the Product(s) and the Documentation are the “Confidential Information” of Panzura. Each party agrees to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to any third parties, except as described below, not to use any Confidential Information except for the purposes of this EULA, and otherwise protect Confidential Information by using at least the same degree of care (and, in any event, not less than a reasonable degree of care) as it uses to protect its own proprietary information of similar importance . Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this EULA, and only if such employees and contractors are subject to a nondisclosure agreement that is at least as restrictive as this EULA. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.

Proprietary Rights. The Product(s) and Documentation contain Panzura’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. There is no implied license, right, or interest granted to Customer in any copyright, patent, trade secret, trademark, invention, or other intellectual property right under this EULA, and Panzura reserves all proprietary rights not expressly granted herein.

Government Rights. The Product(s) are “commercial items” as that term is defined at 48 C.F.R. 2.101; the Software and Documentation consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product(s) and any other software and documentation covered under this EULA with only those rights set forth herein. Accordingly, if the Customer is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, including technical data or manuals, is restricted by the terms, conditions, and covenants contained in this EULA.

Export Restrictions. Customer agrees that it will not export or re-export any Product(s), any part thereof, or any process or service that is the direct byproduct of the Products (the foregoing collectively referred to as the “Restricted Components”), to any country, person or entity subject to U.S., E.U. or other applicable export restrictions (including but not limited to regulations from the Departments of Commerce, Treasury or Defense); and, to the extent consistent with this EULA, to obtain any necessary license or other authorization to export, re-export, or transfer Restricted Components. Customer specifically agrees not to export or re-export any of the Restricted Components: (a) to any country to which the U.S., E.U. or other applicable jurisdiction has embargoed or restricted the export of goods or services, which currently include but are not necessarily limited to Cuba, Iran, North Korea, Sudan and Syria, to the governments of these countries, wherever located, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (b) to any person or entity who Customer knows or may have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons or for missile-development/delivery purposes; or (c) to any person or entity who has been prohibited from participating in U.S. or applicable export transactions by any federal agency or department of the U.S. or other government. Customer warrants and represents that neither the U.S. Commerce Department, Bureau of Export Administration nor any other federal agency has suspended, revoked or denied its export privileges; or (iv) or to any person with knowledge or reason to know that they will export, re-export, or transfer the Products other than in compliance with the foregoing restrictions.

Security Responsibilities. Customer acknowledges and agrees that it is solely responsible for maintaining and protecting all aspects of any network, systems, and data (including any Personal Information) maintained by Customer. “Personal Information” means individually identifiable information from or about an individual consumer including, but not limited to: (a) a first and last name or first initial and last name; (b) a home or other physical address, which includes at least a street name and name of city or town; (c) an email address; (d) a telephone number; (e) a Social Security number; (f) credit and/or debit card information, including number, expiration date, security code, and/or track data; (g) date of birth; or (h) driver’s license number.

Panzura Suppliers and Licensors. Any release, disclaimer, or limitation of Panzura’s liability or damages pursuant to this EULA shall be construed, in addition to Panzura’s benefit, also to the benefit of Panzura’s suppliers, licensors, employees, and contractors and, without limiting any other defenses that such suppliers, licensors, employees and contractors may have. Customer hereby expressly agrees and covenants to release such third parties from liability or damages in accordance with such release, disclaimer, or limitation of liability or damages to the same extent that such provisions apply to Panzura. The Product(s), including, but not limited to, any Software, may include software licensed from third parties, and such third-party software may have additional restrictions specified in licenses included in the “Licenses” directory within the Product(s). Customer hereby expressly represents and warrants that is has read such other licenses in their entirety and fully agrees to be bound by their terms.

Governing Law/Dispute Resolution. This EULA will be governed by and construed under the laws of the State of Texas without regard to its conflict of law’s provisions. The federal and state courts in Collin County, Texas will have exclusive jurisdiction and venue to adjudicate any dispute arising out of or related to this EULA. Notwithstanding the foregoing, Customer hereby expressly acknowledges and agrees that the breach or attempted breach of its obligations hereunder related to any Product(s) or Panzura’s Confidential Information shall cause irreparable injury to Panzura for which money damages would not be an adequate remedy and that in such event Panzura shall be entitled to equitable relief to protect its interests, including, but not limited to, injunctive relief, in any court of competent jurisdiction.

Entire Agreement. This EULA sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals, and understandings between them. No modification of or amendment to this EULA, nor any waiver of any rights under this EULA, will be effective unless set forth in writing signed by authorized representatives of both parties hereto. Customer hereby expressly acknowledges and agrees that, without limiting the generality of the foregoing, this EULA wholly supersedes the terms of any Customer form of purchase order, acknowledgment, or other business forms notwithstanding Panzura’s acceptance or acknowledgment thereof or to any of the same and that no so such Customer form of purchase order, acknowledgment or other business forms shall have any force or effect unless otherwise expressly agreed in writing by Panzura via a written amendment to this EULA.

Assignment. Customer may not assign this EULA or any of its rights and/or obligations under this EULA without Panzura’s prior written consent. Panzura shall have the right to assign this EULA and/or any of its rights and/or obligations under this EULA to any of its affiliates or subsidiaries or to any successor to its business or assets to which this EULA relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.

Severability. If any provision of this EULA is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and enforceable.

Waiver. The failure of either party to enforce its rights under this EULA at any time for any period will not be construed as a waiver of such rights.

Notices. Any notices or communication under this EULA will be in writing and will be either (a) hand delivered, (b) sent by registered or certified mail return receipt requested, or (c) sent by nationally recognized express courier to the receiving party’s address set forth on the applicable ordering document, or such other address as a party may in the future specify to the other party.

Customer Records. Upon reasonable notice, Panzura may conduct a reasonable audit of Customer’s software environment and relevant records to confirm Customer’s use of Product(s), including, but not limited to, any Software, is in accordance with the terms and conditions of this EULA. Any such audit shall be conducted during regular business hours and shall not unreasonably interfere with Customer’s business activities. Customer shall reasonably cooperate in any such audit. In the event such audit discloses non-compliance with this EULA, Customer shall promptly pay to Panzura the appropriate license fees (as determined by Panzura in its sole discretion), plus the reasonable cost of conducting the audit.

This Panzura Master Services Agreement (“Services Agreement”) sets forth the terms and conditions under which Panzura will provide Premier Services Support and Professional Services to Customer.

1. Definitions

Capitalized terms not specifically defined in this Services Agreement will have the same meaning as in the applicable End User License Agreement, Ordering Document, or Change Order. Additionally, the following definitions shall apply:

Change Order. A document (including, but not limited to, a Statement of Work) that outlines any variance in activities, deliverables and/or assumptions from those set forth in this Services Agreement and Exhibit A (Scope of Services) hereto.

Ordering Document. Either (i) a Quote or Sales Order provided by Panzura and signed by Customer; or (ii) a purchase order issued by Customer that corresponds to a Quote or Sales Order provided by Panzura that specifies Customer’s purchase of Panzura Products and/or Services.

Panzura. Panzura, LLC, its officers, executives, directors, advisors, affiliates, subsidiaries or parent companies.

Premier Services Support. Panzura’s services and support offering, including Professional Services, as specified on the Ordering Document and detailed in Exhibit A.

Professional Services. Support and other professional services provided by Panzura to Customer in accordance with this Services Agreement and Exhibit A hereto, or any applicable Change Order or Statement of Work.

Professional Service Resource. A Panzura employee, supplier or subcontractor which Panzura utilizes to provide Professional Services to Customer.

Service Offering. A service offered to Customer by Panzura as specified on any Ordering Document, including, but not limited to, Support Subscriptions and Professional Services provided on a time & materials basis.

2. Term and Termination

This Services Agreement shall commence as of the effective date of Customer’s subscription to Panzura’s Premier Support found on the applicable Ordering Document (the “Effective Date”) and shall continue for a period identified in the applicable Ordering Document (the “Initial Term”). Upon expiration of the initial term, Customer’s subscription to Premier Support shall automatically renew unless Customer provides no less than sixty (60) days written notice of non-renewal.

3. Fees

The applicable Ordering Document will state the fees to be paid by Customer to Panzura for any applicable Service Offering and any related payment schedules. Customer’s execution of an Ordering Document or Panzura’s acceptance of a purchase order, as applicable, will indicate acceptance of the stated fees and payment schedules and of this Services Agreement. No changes in fees or payment schedules will be effective absent a mutually executed Change Order.

If Panzura performs any services, activities or deliverables, at the request or direction of Customer, that are outside the scope of this Services Agreement, Customer shall pay Panzura in accordance with Panzura’s then-current service pricing, regardless of whether Customer and Panzura have entered into a separate Statement of Work outlining the applicable services, activities or deliverables that are provided by Panzura in addition to those services that are covered under this Services Agreement.

4. Scope of Services

Panzura shall in no event use its less than commercially reasonable efforts, to perform Professional Services in accordance with the applicable Ordering Document, any applicable Change Order, and this Services Agreement (including, but not limited to, Exhibit A to this Services Agreement which is hereby incorporated by reference). Panzura may in its sole discretion require an Ordering Document or statement of work to be executed prior to commencement of the Professional Services.

Unless otherwise noted in an applicable Statement of Work, changes to the Professional Services will not be effective unless a Change Order has been executed by authorized representatives of both Parties and Panzura has received the applicable purchase order corresponding to a quotation supporting the change.

Professional Services are of a scalable, repeatable nature and, as such, the same or similar Professional Services have been and will continue to be provided to other Panzura customers. No custom development activity will be performed as Professional Services without a separate written Statement of Work. In no event will Customer grant to a Professional Services Resource root or “superuser” access at a server or network level. Such services shall at all times be subject to a separate written agreement.

5. Professional Service Resources.

Panzura will provide to Customer a Professional Services Resource qualified at a reasonable skill level to perform the applicable Professional Services. Professional Services outside the scope of this Services Agreement or outside the scope of Customer’s support level, shall be provided to Customer on a time and materials basis (“T&M”), plus reasonable pre-approved expenses, in accordance with Panzura’s then–current professional service fees, and outlined in a written statement of work or Change Order signed by both parties. T&M Professional Services performed by Panzura shall be calculated on an hourly basis and will be performed in minimum increments of one (1) hour. For the avoidance of doubt, T&M Professional Services shall be calculated based on actual hours that a Panzura resource has performed services for Customer, and not based on elapsed time.

6. Indemnification

6.1 Panzura agrees that it will, at its own expense, defend all suits or proceedings instituted against Customer and pay any award or damages finally assessed against Customer in such suits or proceedings, insofar as the same are based on any third party claim that the Product(s) or any parts thereof furnished under this Services Agreement constitute an infringement in the United States of any United States patent, copyright trade secret or other intellectual property right of a third party; provided, however, that Customer (i) gives immediate written notice to Panzura of the institution of the suit or proceedings, (ii) gives Panzura sole control of the defense and settlement of such suits or proceedings, and (iii) gives Panzura all needed information, assistance, and authority to enable Panzura to do so. Notwithstanding the foregoing, Panzura will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of the Product(s) in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Panzura, (b) any use of the Product(s) that is not their intended use; or (c) any modification of any Product(s) by anybody other than Panzura. In the event that Panzura believes that any claim is likely to occur, Panzura may, at its sole option and expense, either (i) secure for Customer the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES PANZURA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

6.2 Customer agrees to indemnify, defend, and hold Panzura, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with Customer’s or its representative(s)’ use of the Product(s) or Customer Content, including without limitation any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive.

7. Limitation of Liability

PANZURA’S LIABILITY ARISING OUT OF THIS SERVICES AGREEMENT AND/OR PROVISION OF PROFESSIONAL SERVICES IS LIMITED TO NO MORE THAN THE PURCHASE PRICE OF THE APPLICABLE SERVICE OFFERING. IN NO EVENT IS PANZURA LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) WHETHER OR NOT PANZURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS SERVICES AGREEMENT. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. Confidentiality

“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies. Without limiting the foregoing, the Product(s), their structure, organization, code, and related documentation are the “Confidential Information” of Panzura. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Services Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Services Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.

9. Intellectual Property

Each Party to this Services Agreement shall retain all right, title and interest in and to its Pre-Existing IP. Panzura will retain all right, title, and interest in and to the Professional Services, Professional Services Materials, Deliverables, and IP Rights embodied therein. In no event will Professional Services Materials or Deliverables be deemed to include Customer Pre-Existing IP or Customer Confidential Information. Customer hereby grants Panzura a non-exclusive, worldwide, royalty-free, fully paid-up license to use Customer’s Pre-Existing IP and Confidential Information for the sole purpose of performing the Professional Services and providing the Deliverables. Upon receipt of full payment, Panzura hereby grants to Customer a limited, non-exclusive, non-transferable, terminable license, with no right to sublicense, to use the Deliverables, including any Professional Services Materials incorporated in such Deliverables, for Customer’s internal business purposes only. Customer will not re-distribute the Deliverables (including any Professional Services Materials incorporated therein) to any third parties without Panzura’s prior written consent.

10. Acceptance of Deliverables

Customer shall review each Deliverable provided by Panzura in not more than ten (10) business days from the date Panzura delivers the same. Within the same period of time, Customer shall provide Panzura (i) with written approval of the Deliverable (which approval shall not be unreasonably withheld), or (ii) with a written statement of the deficiencies preventing approval of the Deliverable (based solely on the acceptance specifications set forth in this Services Agreement or any applicable Change Order) and specific corrective actions necessary for Customer to provide approval of the Deliverable in accordance with the acceptance specifications set forth herein. Within thirty (30) days of Panzura’s receipt of the applicable written statement of deficiencies, Panzura shall complete the corrective actions requested therein by Customer, but only so long as, and to the extent, such corrective actions are necessary for the deficient Deliverable to align with the acceptance specifications set forth herein. Approval of a Deliverables shall be deemed given by Customer if Customer has not delivered to Panzura a written notice of deficiencies in accordance with the timeline contemplated above.

11. Miscellaneous

This Services Agreement shall be governed by and construed under the laws of the State of Texas without regard to its conflict of laws provisions. The federal and state courts in Collin County, Texas will have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Services Agreement.

This Services Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals, and understandings between them. Without limiting the generality of the foregoing, this Services Agreement will supersede the terms of Customer’s form of purchase order, acknowledgment or other business forms notwithstanding Panzura’s acceptance or acknowledgment of such business forms. No modification of or amendment to this Services Agreement, nor any waiver of any rights under this Services Agreement, will be effective unless set forth in writing signed by officers of both parties hereto.

In no event may Customer assign this Services Agreement or its rights and obligations under this Services Agreement. Panzura shall have the right to assign this Services Agreement to any successor to its business or assets to which this Services Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.

This Services Agreement will be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. If any provision of this Services Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Services Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to enforce its rights under this Services Agreement at any time for any period will not be construed as a waiver of such rights.

Panzura at all times reserves the right to at any time modify this Services Agreement, including, but not limited to, any of the terms and conditions set forth herein, at its sole discretion. The most current version of this Services Agreement will at all times be placed at www.panzura.com/terms. Customer’s subscription to and continued use of Panzura Support shall be deemed as Customer’s acceptance of, and consent to, the then-current version of this Services Agreement.

Any notices or communication under this Services Agreement will be in writing and will be hand delivered, sent by registered or certified mail return receipt requested, by nationally-recognized express courier with a tracking system, or by confirmed facsimile transmission to the party receiving such communication as follows:

If to Panzura, Customer shall send notices to 5850 Granite Parkway, Suite 450, Plano, TX 75024 to the attention of the Support and Legal Teams and via email to support@panzura.com and legal@panzura.com.

If to Customer, Panzura shall send notices to the point of contact designated by Customer in the applicable Ordering Document or through the Customer Service Portal.

Exhibit A: Scope of Panzura Support Subscription

This Exhibit A to the Premier Support Services Agreement (“Services Agreement”), sets forth the scope of Panzura Service Offerings that Panzura shall provide to Customer. While Panzura can accommodate additional activities, deliverables and assumptions, any material change to the applicable scope set forth below (the “Scope of Services”) shall require a written Change Order in accordance with the terms in the Services Agreement:

1. Standard Support

Standard Support is a former service offering that may apply to certain customers that have not enrolled in Premier Support. Customers entitled to Standard Support under a legacy agreement shall have access to Panzura’s customer service portal (the “Service Hub”) to create and monitor incidents and service requests, and access to Panzura’s Professional Services on a time and materials basis.

2. Premier Services Support

Panzura Premier Services Support is a service offering that delivers expanded proactive support—in addition to prioritized and expedited reactive support as necessary—to preemptively identify, diagnose and correct issues in order to reduce outages and downtime for Customers. The following activities, deliverables and assumptions make up the Scope of Services for Premier Services Support:

Proactive Monitoring

Upon enrollment, Panzura shall assist Customer in establishing a communication channel between the Customer’s nodes and Panzura’s central monitoring platform to collect, filter and aggregate relevant events from the nodes. Panzura shall assess such relevant events and recommend changes, upgrades or improvements to Customer’s data ecosystem as may identify, without limitation:

• issues requiring remediation to avoid future performance impact
• potential security risks
• changing usage or workloads requiring new or changed resources
• maintenance that may be required to ensure ongoing optimal performance
• software upgrades that deliver additional features and/or performance enhancements

Support and Response Times

Customer shall have access to unlimited technical and corrective support via Panzura’s Global Services Team. Support is available 24x7x365 and can be accessed by — raising a ticket in Service Hub — emailing support@panzura.com

• calling (North America: free call 1-855-726-9872, United Kingdom: free call 08081 010 928, Everywhere else: +1-408-457-8504). Targeted response times are as follows:
  • Sub-30 minute response time for P1 and P2 support requests
  • 24 hours response time for P3 and P4 support requests

Access to Service Hub Customer Portal

Panzura will provide a customer service portal (“Service Hub”) that allows customers to create tickets and monitor the status of any incidents and/or service requests.

Patching, Upgrades and Maintenance

Customer will be notified of any scheduled/emergency patches, along with what the patch will change via Service Hub and/or email originating from Panzura’s support team or Customer’s Technical Account Manager.

Each engagement is entitled to 1 major and 1 minor upgrade if necessary/required each year. Customer shall be notified of maintenance windows when they are scheduled by Panzura via the Service Hub. Customer shall have access to recommended software upgrades which shall be scheduled, deployed, tested and confirmed by Panzura.

For the avoidance of doubt, Premier Services Support does not include service to or support for obsolete hardware or software. Customer’s responsibilities with respect to maintaining product compatibility requirements can be found in the applicable product EULA. The applicable Product compatibility requirements can be found at know.panzura.com.

Technical Account Manager

Customer shall have a named Technical Account Manager assigned to help Customer to maximize their return on investment in Panzura. The Technical Account Manager shall act as Customer’s primary technical contact within Panzura, providing proactive support designed to ensure Customer’s Panzura deployment is optimized to allow Customer to meet their current and future goals. The TAM shall, without limitation, provide assistance in prioritizing support tickets, managing escalations as required, proactive service management, including Panzura software release planning and risk analysis, and Panzura OS upgrade advice, and facilitating regular informational business reviews.

The resources assigned to the Account Team by Panzura are subject to change based on subscription start date and resource availability. In the event that one or more of the individuals assigned to the Account Team is not available when requested or Panzura is otherwise required to remove any such individual(s) from any project arising here from, an equivalent number of replacement candidates shall be provided.

Data Migration

Ingest migration direct from the data’s current location into CloudFS, up to Customer’s managed capacity limit, is allowed for in this Scope of Services. The data to be migrated shall originate from a single source (as defined by Panzura in its sole discretion). Panzura shall serve as the prime contractor on all matters with respect to data migration activities and no third parties shall be involved in the data migration process unless agreed upon in writing via a separate Change Order. Panzura shall at all times perform migration activities following its standard migration playbook approach (as defined by Panzura at its sole discretion), inclusive of Panzura’s standard tools and platforms. Cloud to Cloud data migration is not included under the Scope of Services.

Direct ingest data migration outside of the Customer’s managed capacity shall at all times require a written Change Order which shall specify the applicable activities, deliverables and assumptions along with data limitations, if any.

Assisted Data Recovery

Customer shall have access to assisted and expedited data recovery support if Customer experiences a ransomware event. Subject at all times to the Services Agreement, in such event, Panzura shall work with Customer to determine the scope of the applicable ransomware attack by searching logs and filesystem metadata for specific parameters as requested by Customer, and to assist Customer in determining the best available snapshot to recover Customer’s data. For the avoidance of doubt, if Customer experiences a ransomware event, Panzura will have no obligation to provide additional services with respect to the applicable activity outside of the Services contemplated herein. As such, the following activities are out of scope under the Services Agreement and this Exhibit A: node cache scanning, node rebuilding, reconciliation, upload and migration of missing data, snapshot repairs, business continuity testing, and additional license capacity.

Miscellaneous

Panzura agrees to use diligent efforts to complete the Professional Services, activities and deliverables identified in these Scope of Services. Notwithstanding any terms to the contrary (whether set forth in this Exhibit A or elsewhere), it is agreed and understood that should Panzura utilize diligent efforts but prove unable to meet the estimated dates or timelines set forth in any applicable Change Order, it shall not be considered to have materially defaulted in its obligations hereunder. Panzura shall, at all times, promptly provide Customer with written notice of any delays that it anticipates or encounters during the course of providing the Professional Services and activities contemplated herein.

Customer shall at all times cooperate with Panzura in its provision of Professional Services and activities hereunder, which cooperation shall include, but not be limited to, providing Panzura with reasonable facilities and timely access to data, information and personnel. Customer shall be responsible for the performance of its resources, representatives and agents and for the accuracy and completeness of all data and information provided to Panzura. Customer acknowledges and agrees that Panzura’s performance hereunder is dependent upon, among other things, the timely and effective satisfaction of Customer’s responsibilities as requested of it from time to time by Panzura.

Panzura shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, pandemics, epidemics, local disease outbreaks, public health emergencies, quarantines, or acts of God, in which event Panzura shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Panzura shall use commercially reasonable efforts to notify Customer of the occurrence of such an event within ten (10) business days of its occurrence.