Amendment No. 1 to Amended and Restated Reseller Agreement, dated as of January 23, 2019, between Dell, Inc., for itself and its subsidiaries other than SecureWorks, Inc. and SecureWorks, Inc., for itself and its subsidiaries

Dell Inc., for itself and its Subsidiaries other than SecureWorks, Inc., (“Reseller”) and SecureWorks, Inc., for itself and its Subsidiaries (“Spyglass”) hereby enter into this Amendment No. 1 (“Amendment”) as of the date of last signature below (“Amendment Effective Date”) for the purpose of amending the Amended and Restated Reseller Agreement, dated as of October 28, 2015, and those amendments, addenda or riders thereto dated prior to the Amendment Effective Date (collectively, the “Reseller Agreement”).

WHEREAS, Dell Marketing LP, a Texas limited partnership, on behalf of Reseller and its direct and indirect subsidiaries (other than Spyglass) (collectively, “Dell”), Spyglass, and CrowdStrike, Inc., a Delaware corporation (“CS”) are parties to an agreement (including any amendments, addenda or riders, the “Tri-Party Agreement”) pursuant to which Dell may sell certain products and services of Spyglass and/or CS (the “Solutions”) to Clients.

 

WHEREAS, the Parties desire to clarify the understandings under the Reseller Agreement with respect to sales of Solutions under the Tri-Party Agreement.

WHEREAS, the terms and conditions of this Amendment only apply to transactions under the Reseller Agreement involving sales of Solutions to Clients.

NOW, THEREFORE, in consideration of the promises and obligations contained herein, the parties agree as follows:

RELATIONSHIP TO RESELLER AGREEMENT. This Amendment hereby incorporates by reference and amends the above-referenced Reseller Agreement. The Reseller Agreement shall remain in effect and unchanged except to the extent provided in this Amendment. In case of any conflict between this Amendment and the Reseller Agreement, the provisions of this Amendment shall control with regard to the subject matter set forth herein.

following new provision as Section 1.5:

Both Standard BRM reports and Standard Royalty Accounting reports are automated and shall be presented as-is to Spyglass. Spyglass acknowledges that Reseller has no responsibility to modify or customize these reports in any way.

In addition, Reseller shall provide the following reports with data fields and frequency as indicated below:

* Weekly report shall be in an Excel File format.

** Reseller and Spyglass shall determine in good faith a mutually agreeable format for the monthly report. Reseller shall target delivery of this monthly report to Spyglass no later than the first business Monday (excluding holidays) each month. Neither party shall change the format of the report without prior written approval from the other party.

    

“Foreign taxes. If Reseller is required by any tax authority to withhold taxes on payments to Spyglass, then Reseller may deduct such taxes from the amount owed Spyglass and pay them to the authority. Reseller must deliver to Spyglass an official receipt for any taxes withheld (or other documents necessary) for Spyglass to claim a tax credit or refund. Reseller must deliver the receipt within 60 days of payment of the tax or maximum time allowed for delivery of the receipt under local law.”

“In addition to the foregoing, Spyglass will, at its expense, indemnify, defend and hold Reseller harmless from and against any and all third party claims, actions, demands, ensuing legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs and expenses as incurred, including without limitation reasonable attorney's fees, to the extent caused by any alleged or actual: (a) acts or omissions of Spyglass that result in any violation by Spyglass of any applicable laws; (b) Spyglass’s or its representative’s grossly negligent act or grossly negligent omission, fraud or willful misconduct; (c) Spyglass’s failure to comply with any of its privacy notices or any other terms and conditions Spyglass enters into with a Client; (d) Spyglass’s breach of the NDA, or Spyglass’s improper access, collection, distribution, processing, transmission, or storing of a Client’s personally identifiable information.”

“EXCEPT FOR (I) SPYGLASS’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 13.3(i), (II) EACH PARTY’S GROSSLY NEGLIGENT ACTS OR GROSSLY NEGLIGENT OMISSIONS, FRAUD OR WILLFUL MISCONDUCT, (III) RESELLER’S FLOW THROUGH OBLIGATION, (IV) AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION (FOR AVOIDANCE OF DOUBT, A THIRD-PARTY HACK SHALL NOT BE CONSIDERED AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION BY A PARTY FOR PURPOSES OF THIS SECTION), OR (V)

INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (INCLUDING ANY CLIENT OF RESELLER) FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, DAMAGES FOR LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES OR SERVICE INTERRUPTIONS, ARISING OUT OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT, STRICT LIABILITY, OR BREACH OF WARRANTY AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR (I) AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION (FOR AVOIDANCE OF DOUBT, A THIRD-PARTY HACK SHALL NOT BE CONSIDERED AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION BY A PARTY FOR PURPOSES OF THIS SECTION), (II) INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, (III) SPYGLASS’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 13.3(i), OR (IV) EACH PARTY’S GROSSLY NEGLIGENT ACTS OR GROSSLY NEGLIGENT OMISSIONS, FRAUD OR WILLFUL MISCONDUCT, EACH PARTY’S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF (A) THREE TIMES THE AMOUNT OF FEES PAID BY RESELLER TO SPYGLASS UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM AND (B) THIRTY MILLION DOLLARS ($30,000,000).”

IN WITNESS WHEREOF, the parties have caused this Amendment to be signed on the respective dates indicated below.