Netwrix Corporation
Cloud Service Agreement

Updated April 15, 2024

PLEASE READ THIS AGREEMENT CAREFULLY. YOU MUST REVIEW AND EITHER ACCEPT OR REJECT THE TERMS OF THIS AGREEMENT BEFORE USING THE CLOUD SERVICE. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE USING THE CLOUD SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND THE ENTITY ON WHOSE BEHALF THE CLOUD SERVICE IS USED (FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER). USERCUBE MAY UPDATE THE TERMS OF THIS AGREEMENT AT ANY TIME IN ITS SOLE DISCRETION. USERCUBE WILL NOTIFY LICENSEE OF ANY SUCH UPDATES AND LICENSEE’S OR CLOUD USER(S)’ CONTINUED USE OF THE CLOUD SERVICE AFTER SUCH NOTICE WILL CONSTITUTE LICENSEE’S AGREEMENT TO THE UPDATED TERMS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK THE “I ACCEPT” BUTTON OR USE THE CLOUD SERVICE.

This cloud service agreement (the "Agreement") is made by and between Netwrix Corporation, ("Netwrix"), a Delaware corporation, and the entity on whose behalf the Cloud Service is used ("Licensee”) (each a “Party” and together the “Parties”). This Agreement, together with any documents incorporated herein by reference, sets forth all terms and conditions applicable to use of the Cloud Service by Licensee and Cloud Users.

DEFINITIONS. All capitalized terms used herein shall have the definitions attributed to them in this section or elsewhere in this Agreement.

• “Account” means a unique account for Licensee’s use of the Cloud Service.
• “Affiliate” means an entity controlled by, under common control with, or controlling a Party, with “control” meaning an ownership interest greater than fifty percent.
• “Cloud Service” means the web-hosted software made available to Licensee by Netwrix through the URLs stated in Schedule 1
• “Cloud Service Data” means data transmitted to the Cloud Service by or on behalf of Licensee or Cloud Users.
• “Cloud User” means Licensee’s employee(s) or authorized agent(s) who have been given login access credentials in accordance with the Documentation for purpose of accessing the Cloud Service in connection with their relationship to Licensee.
• “Documentation” ” means the technical documentation provided with the Cloud Service or otherwise made available to Licensee by Netwrix.
• “Order”means any order for Cloud Service or Services, including a signed Quote or other document in accordance with a Quote, or as otherwise indicated in this Agreement.
• “Professional Services”means any remote services, other than Support Services, provided to Licensee pursuant to an Order including, without limitation, deployment, customizations, and integrations.
• “Quote” means any quote issued by Netwrix for Cloud Service or Services.
• “Services” means Support Services and Professional Services.
• “Support Services” means access to technical support website(s) applicable to the Cloud Service stated in the Order.
• “Trial, Preview or Sandbox” means a non-productive limited use of the Cloud Service in a trial, sandbox or preview mode or environment for testing, demonstration and integration testing purposes.

SECTION 1. CLOUD SERVICE.

1.1 License Grant to Cloud Service. Subject to the terms and conditions of this Agreement, Netwrix hereby authorizes Licensee and Cloud Users to use the Cloud Service on a non-exclusive, non-transferable, and non-sublicensable subscription basis for Licensee's own internal business operations and in accordance with the Documentation. The term of the license for the Cloud Service shall begin and end on the dates set forth in the Order (the “Cloud Service Term”), unless terminated in accordance with this Agreement; provided that, if Licensee is participating in a Trial, Preview or Sandbox, Netwrix will make the Cloud Service available to Licensee until the earlier of: (a) the end of the free Trial, Preview or Sandbox use period, which period shall be thirty (30) days from the date Netwrix establishes the Account unless otherwise agreed by Netwrix in writing; (b) the start date of any Order executed by Licensee for productive use of the Cloud Service; or (c) cessation or suspension of the Cloud Service at Netwrix’s option. Upon expiration or termination of the Cloud Service, Licensee shall not access or use or permit any Cloud User to access or use any Cloud Service, and Licensee may not disrupt, disable or interfere with any locking mechanism that prevents Licensee's use of the Cloud Service following the expiration or termination of the Cloud Service.

1.2 Restrictions. The Cloud Service is licensed only, not sold, and Netwrix reserves all rights, implied or otherwise, which are not expressly granted to Licensee hereunder. Licensee may not: (a) circumvent or bypass any technological protection measures in or relating to the Cloud Service including without limitation decrypt, hack, emulate, or exploit the Cloud Service; (b) reverse engineer, decompile, disassemble, modify, adapt, or create derivative works based upon the Cloud Service or any part thereof; (c) use the Cloud Service to provide services to third parties or in any activity intended to directly produce revenue without the prior written consent of Netwrix; (d) publish, copy, rent, lease, resell, distribute or lend the Cloud Service without the prior written consent of Netwrix; (e) use the Cloud Service in any way that could interfere with anyone else’s use of the Cloud Service or gain unauthorized access to any service, data, account, or network; or (f) use the Cloud Service in violation of any law, regulation or rule, including without limitation export laws, sanctions regulations, and national security controls or regulations of the United States or other applicable jurisdiction. Licensee represents and warrants to Netwrix that Licensee shall not, and shall not permit any other person to: (x) use the Cloud Service for purposes of (i) benchmarking or competitive analysis of the Cloud Service, (ii) developing, using or providing a competing Cloud Service product or service, or (iii) any other purpose that is to Netwrix’s detriment or commercial disadvantage; (y) copy the Cloud Service in whole or in part.

1.3 Reservation of Rights. Licensee acknowledges that all right, title and interest in the Cloud Service shall be owned by Netwrix including, without limitation, all intellectual property rights, excluding only any third-party components incorporated therein and the Cloud Service Data.

1.4 Government Users. The Cloud Service is a “commercial item”, as that term is defined at 48 C.F.R. 2.101), consisting 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 (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Cloud Service with only those rights set forth herein. The manufacturer is Netwrix SAS, 40 boulevard de Dunkerque, Immeuble Europrogramme, 13002 Marseille, France.

1.5 Third Party Components. The Cloud Service is distributed with certain third-party components licensed to Netwrix pursuant to open source licenses (“Third-Party Licenses”), which require Netwrix to include certain provisions in any distribution thereof. Such Third-Party Licenses are available with the Documentation. The Third-Party Licenses only apply to the third-party component with which they’re associated and do not apply to the proprietary portions of the Cloud Service owned by Netwrix.

1.6 Customer Experience Program. This Section 1.6 applies when the Cloud Service includes a customer experience program. Where applicable, Licensee agrees that the Cloud Service will transmit user activity data and logs to Netwrix detailing statistical information about Licensee’s use of the Cloud Service and its functions, and aggregate usage data for the purposes of generating statistical metrics and analytics regarding use of the Cloud Service (collectively, “Usage Data”). Netwrix may use Usage Data to better understand the features and functionality Licensee’s users find useful for purposes of improving its products and services, and for its other internal business purposes. Netwrix will use such Usage Data as contemplated under this Agreement and otherwise in accordance with applicable law.

SECTION 2. ACCOUNTS AND PROVISIONING.

2.1 Accounts and Access. Upon receipt of a request for Trial, Preview or Sandbox or executed Order, as applicable, Netwrix will establish an Account, grant Cloud Users access to the Cloud Service, or otherwise provide Licensee instructions on how to activate the Cloud Service in accordance with the Documentation. Licensee may grant access to the Cloud Service to Cloud User(s).

2.2 Provision of the Cloud Service. Subject to any downtimes caused by the cloud computing service or for maintenance, Netwrix shall use commercially reasonable efforts to make the Cloud Service available to Licensee on a 24/7 basis in accordance with the Availability Commitment stated in Schedule 1. Nothing contained herein shall limit Netwrix’s right to grant access or otherwise distribute or make available the Cloud Service, in whole or in part, to any third party. NOTWITHSTANDING THE FOREGOING, THE PROVISION OF THE CLOUD SERVICE BY NETWRIX MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NETWRIX SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

SECTION 3. CLOUD SERVICE DATA AND SECURITY.

3.1 Cloud Service Data. Licensee acknowledges that the Cloud Service will be accessible only via the URLs stated in Schedule 1 and Cloud Service Data will be stored within the cloud computing service Netwrix deems optimal. Licensee (i) remains responsible for any access to the Cloud Service through the Account, (ii) is obligated to protect and not to disclose to third parties the usernames and passwords it or Netwrix establishes for its Cloud Users, and, (iii) shall take reasonable steps to ensure that each Cloud User abides by the terms and conditions of this Agreement. If Licensee becomes aware of any suspected or actual violation of the Cloud Service, abuse, unauthorized use or access, vulnerability, security incident, confidentiality or privacy breach, then Licensee shall promptly notify Netwrix through the Support Services.

3.2 Trial, Preview or Sandbox Use. If Licensee is using the Cloud Service in a Trial, Preview or Sandbox, the Cloud Service is provided for evaluation purposes only and Licensee will not, and will not permit any third party, to process Licensee production Cloud Service Data during the applicable use period. Any Cloud Service Data produced under the Cloud Service or provided to Netwrix during the applicable Trial, Preview or Sandbox use period is not recoverable or available upon the expiration or termination of the aforementioned period.

3.3 Cloud Service Data Security. Netwrix has implemented administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the Cloud Service Data on the Cloud Service, as set out in the Documentation. Without limiting the foregoing, Netwrix shall not: (i) modify the Cloud Service Data; or (ii) disclose the Cloud Service Data to third parties, except as necessary to perform the Cloud Service, or as expressly permitted by Licensee herein or otherwise in writing. Netwrix shall delete Cloud Service Data from the Cloud Service after the termination or expiration of the applicable subscription period or upon Licensee’s earlier written request. Netwrix may modify the Cloud Service from time to time, in its discretion, without notice to the Licensee, for the purpose of improving Cloud Service features, functions or performance, provided that no such modification shall materially reduce the level or quality of the Cloud Service, as offered as of the date Netwrix established the Account. Notwithstanding the foregoing, Netwrix may apply any improvements and modifications to the Cloud Service required to maintain Netwrix’s legal and regulatory requirements, as well as security standards so long as such improvements and modifications do not materially reduce the security and privacy safeguards. It is Licensee’s sole responsibility to maintain the security of Licensee’s computer systems and comply with any industry standard minimum security requirements to gain access to the Cloud Service.

3.4 Intellectual Property. Licensee retains any right, title, and interest in all Cloud Service Data. Licensee hereby grants to Netwrix a non-exclusive, worldwide, sub-licensable right to use the Cloud Service Data solely to the extent necessary to perform the Cloud Service or as expressly permitted by Licensee herein or otherwise in writing.

SECTION 4. SERVICES.

4.1 Support Services. The Cloud Service may include Support Services. To the extent the Cloud Service includes Support Services, the scope of Support Services is as follows: (i) Netwrix shall respond to communications from Licensee that report failures of the Cloud Service to operate substantially in accordance with its specifications; and (ii) Netwrix shall respond to a reasonable number of communications from Licensee that request consultation on the operational/technical aspects of the Cloud Service, provided that such requests are made by individuals generally skilled in the use of computers. Netwrix will respond to inquiries as stated in Schedule 2.

4.2 Professional Services.

This Section 4.2 will only apply to the extent Professional Services are included in an Order.

4.3 Other Services. For the avoidance of doubt, the Parties will enter into a separate agreement for any services other than Support Services and Professional Services.

4.4 Intellectual Property. Licensee acknowledges that all right, title and interest in any intellectual property rights created as a part of the Support Services and Professional Services, including without limitation any Deliverables, shall be owned by Netwrix. Notwithstanding the foregoing, Licensee retains any right, title, and interest in any Licensee confidential information shared with Netwrix as part of the Support Services or Professional Services, as applicable.

SECTION 5. CONFIDENTIALITY AND PRIVACY.

5.1 Confidentiality. "Confidential Information" means the Cloud Service, Cloud Service Data, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies of a Party (the “Disclosing Party”) not generally available to the public, to which the other Party (the “Receiving Party”) gains access or knowledge as a result of this Agreement. The Receiving Party shall keep such Confidential Information confidential, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use, reproduction, publication, disclosure, or distribution of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by Disclosing Party against third parties to protect its proprietary rights. If Receiving Party is required to disclose Confidential Information of the Disclosing Party by law, regulation or order of a court of competent jurisdiction or other governmental authority, then the Receiving Party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the Disclosing Party, at the Disclosing Party’s cost and expense, in any effort made by the Disclosing Party to seek a protective order or other appropriate protection of its Confidential Information. In the event that such order or protection is not obtained, the Receiving Party may furnish only that portion of the Confidential Information which, on the written advice of the Receiving Party’s counsel, is legally required to be disclosed and, upon the Disclosing Party’s request, use its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.

5.2 Advertising. Licensee agrees that, with Licensee’s prior written consent, Netwrix can publicly advertise that Licensee is a paying customer of Netwrix and the Cloud Service which Licensee is using. Advertising may include, without limitation, use of Licensee's name, logo, number of employees and other non-confidential information related to Licensee's use of Netwrix's products in connection with advertising via Internet, magazines, newspapers, TV, case studies, success stories, press releases, marketing materials, exhibits and other electronic and physical media.

5.3 Suggestions. To the extent Licensee provides or otherwise communicates any suggestions, enhancement requests, recommendations or otherwise provides feedback on the Cloud Service or Services (collectively, “Comments”), Licensee hereby grants Netwrix a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate the Comments and all underlying ideas contained in the Comments into the Cloud Service or Services (or other product or service offerings) and create any derivative works thereof.

5.4 Privacy. To the extent any personal information is collected by Netwrix in connection with this Agreement, Netwrix will only use such personal information in accordance with its Privacy Policy, available at www.netwrix.com/privacy.html or in accordance with a mutually agreed data processing agreement, which shall take precedence over the Privacy Policy.

SECTION 6. WARRANTIES.

6.1 "AS-IS" Warranty for Trial, Preview or Sandbox. LICENSEE AND NETWRIX AGREE THAT ANY TRIAL, PREVIEW OR SANDBOX IS PROVIDED "AS IS" AND UNSUPPORTED, AND THAT NETWRIX MAKES NO WARRANTY AS TO THE TRIAL, PREVIEW OR SANDBOX, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

6.2 Limited Cloud Service Warranty. Netwrix warrants that the Cloud Service (excluding any Trial, Preview or Sandbox), as provided by Netwrix, will materially conform to the specifications in the Documentation applicable to such Cloud Service (the “Cloud Service Warranty”). Licensee must report in writing any breach of the Cloud Service Warranty to Netwrix during the warranty period, and Licensee's exclusive remedy, and Netwrix's sole obligation, for any such breach of warranty shall be for Netwrix to correct or provide a workaround for reproducible errors that cause a breach of the Cloud Service Warranty within a reasonable time considering the severity of the error and its effect on Licensee.

6.3 Limited Services Warranty for Professional Services. Netwrix warrants that it will perform the Professional Services in a professional, diligent, and technically correct manner (the “Services Warrantiy”). Licensee must report in writing any breach of the Services Warranty to Netwrix within thirty (30) days following the performance of nonconforming Professional Services, as applicable, and Licensee’s exclusive remedy, and Netwrix’s sole obligation, for any breach of the Services Warranties, shall be for Netwrix to re-perform the nonconforming portion of the Professional Services. Notwithstanding the foregoing, Netwrix shall have no obligation for breach of the Services Warranties to the extent arising out of Licensee’s modification of Deliverables or use of Deliverables in violation of this Agreement or the SOW.

6.4 Disclaimer of Other Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN THIS SECTION 6 ARE THE ONLY WARRANTIES PROVIDED TO LICENSEE. NETWRIX AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE CLOUD SERVICE, ANY ACCOMPANYING WRITTEN MATERIALS, AND ANY SERVICES.

SECTION 7. REMEDIES.

7.1 Limitation of Remedies and Damages. IN NO EVENT WILL NETWRIX, ITS LICENSORS, ITS AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF NETWRIX OR A NETWRIX REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NETWRIX'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE FEES PAID BY LICENSEE TO NETWRIX DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE CLOUD SERVICE OR ANY SERVICES (EXCLUDING APPLICABLE TAXES AND PAYMENT FEES) THAT CAUSED THE DAMAGES. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN NETWRIX'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. LICENSEE AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE CLOUD SERVICE OR ANY SERVICES BROUGHT BY LICENSEE MUST BE FILED WITHIN NO LATER THAN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED.

7.2 Indemnification. Licensee agrees to indemnify and hold harmless Netwrix, its licensors and their respective officers, directors, affiliates, employees, principals, shareholders and agents from and against any and all claims, causes of action, demands, losses, damages, costs and expenses of any type (including attorney’s fees) arising out of or in connection with any breach of this Agreement by Licensee, or any wrongful or negligent act or omission by Licensee or its officers, employees or agents.

7.3 Injunctive Relief. Licensee hereby expressly agrees that a remedy at law for any breach or attempted breach of the provisions of this Agreement may be inadequate and Netwrix, in addition to any other rights or remedies, shall be entitled to seek injunctive and other equitable relief in the event of any such breach or attempted breach without having to: (i) post bond or other security to prevent a breach or continuing breach of this Agreement, or (ii) prove actual damages.

7.4 WAIVER OF JURY TRIAL. LICENSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE CLOUD SERVICE, THE SERVICES OR THIS AGREEMENT.

SECTION 8. GENERAL.

8.1 Partners. An Order may be submitted by Licensee or an authorized reseller or distributor of Netwrix (each a “Partner”). When an Order is submitted by a Partner, Licensee will have a separate agreement with the Partner regarding Licensee’s payment obligations to the Partner and the Partner will have a separate agreement with Netwrix regarding the Partner’s payment obligations to Netwrix.

8.2 Payment. Licensee or, when applicable, a Partner will pay Netwrix for the Cloud Service and Services in accordance with the applicable Order. Any late payments will accrue an administrative fee of one and one-half percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law. In the event Netwrix engages a collection agency to collect any late payment, a collection fee of thirty percent (30%) of the outstanding balance plus any accrued administrative fees will be added.

8.3 Non-Payment. Netwrix may suspend access to the Cloud Service and deny Support Services during any Cloud Service Term if it has not received all applicable fees.

8.4 Renewal. Any Cloud Service will automatically renew for subsequent terms of the same duration as the initial Cloud Service Term and at the same quantities in use at the end of the then-current Cloud Service Term, unless Licensee notifies Netwrix in writing that it will not renew at least sixty (60) days in advance of the end date of the then-current Cloud Service Term. Netwrix reserves the right to increase fees for each renewal, which increases will be communicated to Licensee prior to expiration of the then-current Cloud Service Term. In the event a Cloud Service Term expires without renewing automatically or being otherwise renewed by Licensee, then Licensee must pay a fee equal to ten percent (10%) multiplied by the fees applicable to the last year of the most recent Cloud Service Term in order to reinstate its use of the Cloud Service (the “Reinstatement Fee”). For the avoidance of doubt, the Reinstatement Fee is in addition to fees for use of the Cloud Service itself.

8.5 Termination. This Agreement, an Order, or a SOW may be terminated: (a) by mutual agreement of Netwrix and Licensee; (b) by Licensee, upon thirty (30) days prior written notice to Netwrix; or (c) by Netwrix, if Licensee breaches this Agreement and fails to cure such breach to Netwrix's reasonable satisfaction within thirty (30) days following receipt of Netwrix's notice thereof. Upon any termination of this Agreement, Licensee shall immediately cease all use of the applicable Cloud Service and Netwrix will promptly return Cloud Service Data to Licensee. Termination of this Agreement shall not limit Netwrix from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee under this Agreement, any Order, or any SOW.

8.6 Survival. The provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement shall survive any termination/expiration of the Agreement and remain in effect following such termination/expiration.

8.7 Assignment. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written consent by Netwrix (which consent shall not be unreasonably withheld) and any purported assignment or transfer without Netwrix's written consent shall be null and void.

8.8 Interpretation. This Agreement is governed by the laws of the State of Delaware without regard to its conflicts of laws and Licensee irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by it will be brought and determined in the federal courts for the District of Delaware, or if there is no federal jurisdiction, by the state courts of Delaware, and Licensee hereby irrevocably agrees to submit to the exclusive jurisdiction of the aforesaid courts with regard to any such action or proceeding arising out of or relating to this Agreement or the Cloud Service. Notwithstanding the foregoing, if Licensee has a shipping address within the United Kingdom, the Republic of Ireland or another address within the European Union, this Agreement will be governed by and construed in accordance with the laws of England and Wales, without reference to the principles of conflicts of law, and the courts of England and Wales shall have exclusive jurisdiction to determine any dispute, legal action or proceeding arising out of or relating to this Agreement, including its subject matter and/or interpretation. The U.N. Convention of Contracts for the Sale of International Goods will not apply. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by the other Party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Netwrix will not be liable for any delay or failure of performance, and no delay or failure of performance will constitute a default or give rise to any liability for damages if such delay or failure is caused by causes beyond Netwrix's control, including, without limitation, acts of God, war, terrorism, and civil disturbance.

8.9 Entire Agreement. This Agreement, including any Order and SOW hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter. Any contrary or supplemental terms or conditions on any purchase order or other document issued by Licensee is for administrative convenience only and shall not be binding upon Netwrix, even if signed by Netwrix. Performance will not constitute acceptance by Netwrix of contrary or supplemental terms or conditions. Any amendment to this Agreement shall be binding upon the Parties only if such amendment references this Agreement and is executed by both Parties.

Schedule 1 – CLOUD SERVICE LEVELS - USERCUBE

This Schedule 1 applies only with respect to Licensee’s use of the Usercube Cloud Service and this Schedule 1 has no force and effect if Licensee does not have an active license for the Usercube Cloud Service.

Availability of the Cloud Services

Accessible Cloud Service Environments	For Production: www.customer-name.usercube.com (the “Cloud Service Production Environment") For Pre-Production: qualif-customer-name.usercube.com (the “Cloud Service “Pre-Production Environment”)
Cloud Service Authentication	Based on Licensee’s existing federated authentication service
Availability of the Cloud Service Production Environment, excluding Maintenance Periods	99.7% measured on a calendar month basis (the “Availability Commitment”)
Maintenance Periods	Netwrix may in its sole discretion make the Cloud Service unavailable for maintenance (each occurrence, “Planned Downtime”). Netwrix will endeavor to: (i) provide Licensee 2 weeks’ notice before beginning Planned Downtime; limit each instance of Planned Downtime to less than 4 hours outside of the hours of 9 a.m. to 6 p.m. CET on Monday to Friday; and limit the number of Planned Downtimes to 6 per year.
Reversibility	Upon request, Netwrix will return the following Cloud Service Data to the Licensee in CSV format: Cloud User data; workflow data (request, validation, refusal); historical data; and newspapers.

Compliance

Netwrix will measure its conformance to the availability commitment stated above and, upon Licensee’s request (which request may not be made more than once per month during the Cloud Service Term), will provide a copy of its metrics to the Licensee.

Non-Compliance

In the event the Licensee fails to conform to the Availability Commitment stated above, the Licensee may request penalties as follows:

• In the event the monthly availability is between 99% and 99.7%, the Licensee may request a credit of 2% of one-twelfth of the annual fee for the Cloud Service as stated in the applicable Order;
• In the event the monthly availability is between 98% and 99%, the Licensee may request a credit of 3% of one-twelfth of the annual fee for the Cloud Service as stated in the applicable Order;
• In the event the monthly availability is between below 98%, the Licensee may request a credit of 5% of one-twelfth of the annual fee for the Cloud Service as stated in the applicable Order;

provided that, in the aggregate, the total credits may not exceed 10% of the annual fee for the Cloud Service as stated in the applicable Order.

Backup of Cloud Service

Netwrix will backup Licensee’s configuration of the Cloud Service once per day and will retain backups for 30 days.

Backup of Cloud Service Data

Cloud Service Data will be backed up in two ways: Point In Time Retention (“PITR”) and Long Term Retention (“LTR”).

PITR is an automated backup that will take a one-second snapshot of the Cloud Service Data in the Cloud Service Production Environment and the Cloud Service Pre-Production Environment. For the Cloud Service Production Environment, PITR backups will be retained for 35 days. For the Cloud Service Pre-Production Environment, PITR backups will be retained for 7 days.

LTR is a configured backup that will archive Cloud Service Data in the Cloud Service Production Environment. LTR backups are broken down into 3 parts: (1)the annual backups made during week 1 and kept for two years; backups kept for 12 months; and backups kept for 6 months.Backup restore time is 1 business day.

Schedule 2 – SUPPORT SERVICES LEVELS

Overview

Netwrix will make available online and email support services in French and English from Monday to Friday from 9:00 a.m. to 6:00 p.m. CET, excluding public holidays in France, (the “Support Hours”) to respond to requests for support regarding anomalies in the functionality of the Cloud Service. In the event of an anomaly, Licensee may report an anomaly on the technical support website(s) applicable to the Cloud Service stated in the Order 24 hours per day 7 days per week, however Netwrix will only respond during the Support Hours and in accordance with the Priority and Response Times stated below.

Updates and Upgrades

If Licensee has paid all applicable fees for Support Services, Licensee will receive minor and major updates of the Cloud Service, and minor version upgrades. A minor update does not require modification of the specific Customer Settings. A major update may require a modification of the specific Customer Settings. A minor upgrade results in changes to the Customer’s settings at no additional fee. A major upgrade results in changes to the Customer’s Settings and an additional fee. Updates and upgrades will not materially diminish the performance or functionality of the Cloud Service.

Exclusions

Netwrix is not responsible for Support Services in the following cases:

• refusal of the Licensee to collaborate with Netwrix in the resolution of anomalies and in particular to answer questions and requests for information;
• unauthorized modification of the Cloud Service by the Licensee, Cloud Users or by a third party including without limitation willful degradation, act of sabotage, malicious intent;
• implementation of any software packages, software or operating system not compatible with the Cloud Service;
• failure of electronic communication networks;
• deterioration due to force majeure or improper use of the Cloud Service;
• poor quality of the data transmitted to the Cloud Service leading to abnormal operation.