(Last revision – November 16, 2015)
These Terms of Service (“Terms”) are between you (“you” or “Customer”) and Egnyte Inc. ("Egnyte,“ "we,” "us,” or "our”). Please read them carefully because they form a contract between you and Egnyte. These Terms govern your initial purchase as well as any future purchases made by you that reference these Terms. These Terms apply whether your purchases are made directly from Egnyte or through Egnyte’s authorized resellers (each, a “Reseller”).
By clicking on the “I agree” (or similar) button that is presented to you at the time of your Order, or by using, registering for, or accessing the Cloud Services described herein, you indicate that you have the power to form a contract with Egnyte and are agreeing to be bound by these Terms. If you are using the Cloud Services on behalf of an organization, unless that organization has a separate paid contract in effect with us, you are agreeing to these Terms for that organization, and representing to Egnyte that you have the authority to bind that organization to these Terms (in which event, “you” and “you” will refer to the organization). If you are using the Cloud Services on behalf of an organization that has a separate paid contract in effect with us, the terms of that contract will govern your use. Note that our Services are not intended for and may not be used by people under the age of 13. By using our Services, you are representing to us that you're over 13.
These Terms may be modified from time to time. The date of the most recent revisions will appear on this page, so please check back often. Your use of or continued access to the Cloud Services after any changes constitutes your acceptance of those changes, whether or not you have reviewed them. If you do not agree to changes to the Terms, you must stop using the Cloud Services and cancel your user account.
These definitions are in addition to those defined elsewhere in these Terms.
“Account” means a Content storage account created by you or on your behalf within the Cloud Services.
“Administrator” means a Power User you identify as having administrative rights including, without limitation, the permission to add licenses, cancel licenses and define the scope of the Cloud Services.
“Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party (where “control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity).
“Content” means files, materials, data, text, audio, video, images or other content.
“Documentation” means written or online user documentation that describe the functionality, operation, and use of the Cloud Services, and that Egnyte provides or makes generally available to customers of the Cloud Services.
“Cloud Services” refers, collectively, to (i) the cloud storage solution provided by Egnyte for the online storage, sharing and processing of Content, (ii) the Software, and (iii) the Documentation.
“Services” refers, collectively, to the Cloud Services, support for the Cloud Services, and Ancillary Services.
“Software” means the software used, provided or made available by Egnyte for use in connection with the Services. Software includes the Egnyte Client Software which is that portion of the Software that is installed on Customer’s local server, desktop, mobile or other device (for example, mobile apps, desktop apps, and group apps) and enables a Power User to engage Content with the Cloud Services. Software also includes bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Egnyte Client Software that Egnyte makes commercially available (“New Releases”).
“User” means an individual you authorize to be a Power User or a Business Partner User.
The Cloud Services are on-line, subscription-based products made available by Egnyte for your use on a non-exclusive basis in accordance with these Terms and all applicable laws. Your use includes allowing Users to transmit, store, share, retrieve, and process Content through the Cloud Services solely through an Account registered to you and in accordance with the orders you place with Egnyte. All use of the Cloud Services by you and your Users must be within the Scope of Use (defined below), for the quantity and User type for which you have paid, and solely for the benefit of you or your Affiliates.
Subject to your continued compliance with these Terms, we grant you the nonexclusive, nontransferable, worldwide, personal license to install and use the Egnyte Client Software for the sole purpose of accessing the Cloud Services by Users. You acknowledge that, from time to time, we may issue updates to the Software (for example, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In that event, the version of the Software which is running on your computer will be automatically upgraded and you consent to such automatic upgrading. All updates to the Software will be subject to the terms and conditions of this Agreement.
Egnyte will provide support for the Cloud Services as detailed in the description applicable to the level of support selected in the Order from those we make available. Support is subject to these Terms, and will be provided during the support period indicated in the Order. Support for the Egnyte Client Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use the Egnyte Client Software, and New Releases are included in the definition of Software in that case.
We reserve the right, in our sole discretion, to change, update, or enhance the Cloud Services as well as support for the Cloud Services at any time including to add functionality or features to, or remove them from, the Cloud Services. We may also suspend the Cloud Services or stop providing the Cloud Services all together. In that case, support for the Cloud Services may also be suspended or terminated.
Any related services purchased by you will be specified in the Order (“Ancillary Services”). Egnyte retains all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any Ancillary Services we provide (“Materials”). Materials provided to you may be used only in connection with the Cloud Services and are subject to the same use restrictions for them.
To obtain access to the Cloud Services, you will be required to obtain an Account with Egnyte by completing a registration form and designating a user ID and password. Until you apply for and are approved for an Account, your access to the Cloud Services will be limited to those areas of the Cloud Services, if any, that Egnyte makes available to the general public. You agree and represent that all registration information you provide is accurate, complete, and current, and that you will update it promptly when that information changes. Egnyte may withdraw Account approval at any time in its sole discretion, with or without cause. You are responsible for safeguarding the confidentiality of your user ID and passwords, and for all activities that take place in connection with your Account. Egnyte has no liability for any loss or damage arising from any unauthorized use of your Account.
You acknowledge that once you have registered with us, we may send you communications or data regarding the Cloud Services using electronic means. These may include, but are not limited to (i) notices about your use of the Cloud Services, including any notices concerning violations of use, (ii) updates to the Services, (iii) promotional information and materials regarding Egnyte's products and services, and (iv) information the law requires us to provide. We give you the opportunity to opt-out of receiving certain of these communications from us by following the opt-out instructions provided in the message. However, even if you opt-out, you understand that we may continue to provide you with required information by e-mail at the address you specified when you signed up for the Cloud Services or via access to a website that we identify. Notices we e-mail to you will be deemed given and received when the e-mail is sent. If you don’t agree to receive required notices via e-mail, you must stop using the Cloud Services. If you provide Egnyte with legal notices, you must transmit it to us via email to legal@Egnyte.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Egnyte Inc., Attn: Legal Department, 1350 W. Middlefield Road, Mountain View, California 94043. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
You agree to notify us promptly in writing when you become aware of any unauthorized use of an Account, the Content or the Cloud Services, including if you suspect there has been any loss, theft or other security breach of your password or user ID. If there is an unauthorized use by a third party which obtained access to the Services through you or your Users, whether directly or indirectly, you agree to take all steps necessary to terminate the unauthorized use. You also agree to provide Egnyte with any cooperation and assistance related to that unauthorized use which we reasonably request.
Egnyte does not monitor any Content transmitted or processed through, or stored in, the Cloud Services. You agree that you:
You are responsible for Users’ compliance with these Terms and for the quality, accuracy and legality of the Content. You will not, and will ensure that your Users do not:
All transactions using the Cloud Services are between the transacting parties only. The Cloud Services may contain features and functionalities linking or providing you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. You acknowledge that Egnyte is not responsible for such content or services. We may also provide some content to you as part of the Cloud Services. However, Egnyte is neither an agent of any transacting party nor a direct party in any such transaction. Any of those activities, and any terms associated with those activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Cloud Services, and you irrevocably waive any claim against Egnyte with respect to such sites and third-party content. Egnyte has no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. You are solely responsible for making whatever investigation you feel is necessary or appropriate before proceeding with any transaction with any of these third parties and your dealings with any third party related to the Cloud Services, whether online or offline, including the delivery of and payment for goods and services. In the event you have any problems resulting from your use of a third party service, or suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we are not responsible unless the problem was the direct result of our breaches.
Egnyte’s ordering documentation or purchase flow (“Order”) will specify your authorized scope of use of the Services, which may include: (a) number and type of Users, (b) storage or capacity of the Cloud Services, or (c) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any renewal of support for the Cloud Services and Ancillary Services as well as additional purchases you may make (for example, to increase or upgrade your Scope of Use of the Cloud Services). If you purchase through a Reseller, your Scope of Use will be as stated in the Order placed by or through the Reseller for you, and the Reseller is responsible for the accuracy of any such Order. A Reseller is not authorized to make any promises or commitments on Egnyte’s behalf, and Egnyte is not bound by any obligations to you other than those specified in these Terms.
If you purchase Services through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, and the payment terms described in this Section will not apply to you. You acknowledge, however, that we may terminate your rights to use the Cloud Services and discontinue Services if we do not receive our corresponding payment from the Reseller.
You agree to pay, using a valid credit card (or other form of payment which we may accept from time to time), the charges and fees (such as recurring monthly or annual fees) set forth on our website (collectively, “Fees”), Taxes (as defined below), and other charges and fees incurred for the Services. You will pay Fees in the currency we quoted for your account (and we reserve the right to change the quoted currency at any time). We will automatically charge your credit card or other account at the start of the billing period and at the start of each renewal period. Except as specifically set forth in this Section, the Cloud Services are prepaid for the period selected (monthly, annually or otherwise) and are non-refundable. This includes Accounts that are renewed.
If you upgrade or expand consumption of the Cloud Services (for example, to obtain additional storage, User access, features or functionality to the Cloud Services) (collectively referred to as a “Service Upgrade”), additional fees may be due at Egnyte’s then-current pricing. If additional fees are due, those fees will be immediately charged to your credit card or other account and will apply for the entire month in which the Service Upgrade occurred. If you have paid for an annual period, Service Upgrades will be coterminous with the affected Cloud Services period.
We will notify you in advance, either through a posting on our website or by email to the address you have most recently provided to us, if we increase Fees or institute new charges or fees. Any increase in Fees will take effect at the beginning of the next renewal subscription term or support period, as applicable. For example, if you pay monthly, your use of the Cloud Services will be charged at the new price when the Cloud Services are renewed in the month that follows the notice. If you don't agree to these changes, you must cancel and stop using the Services.
You agree to keep all information in your billing account current. You may change your payment method or modify your billing account information at any time by using the means provided on our website. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request. In the event that we invoice you, then all fees will be due and payable upon receipt. We reserve the right to charge, and you agree to pay, a late fee on past due amounts. The late fee will be equal to the lesser of 1.5% of the unpaid amount each month or the maximum amount allowed by applicable law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. In addition, we may suspend your access to the Cloud Services or cancel the Services if your account is past due.
Fees are exclusive of Taxes and you will pay or reimburse Egnyte for all Taxes arising out of these Terms, whether assessed at the time of your purchase or are thereafter determined to have been due. For purposes of these Terms, “Taxes” means any sales, use and other taxes (other than taxes on Egnyte’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by these Terms that are imposed by any government or other authority. You agree to promptly provide Egnyte with legally sufficient tax exemption certificates for each taxing jurisdiction for which you claim exemption.
To cancel the Cloud Services, you must provide us with at least 30 days’ notice and follow the process we specify on our website. If you cancel, the Services will end at the end of your current term or period following the 30 days’ notice. If you fail to cancel as required, we will automatically renew the Cloud Services for the same term (and, in the case of support, at the same support level if that level is still offered by Egnyte) and will charge your payment information on file with us commencing on the first day of the renewal term.
In connection with each party’s rights and obligations under these Terms, each party (as the “disclosing party”) may disclose to the other party (as the “recipient”) certain of its confidential or proprietary information (“Confidential Information”). In the case of Egnyte, the Services, these Terms and any other proprietary or confidential information we provide to you constitute Egnyte Confidential Information. In the case of Customer, Content provided, transmitted or processed through, or stored in, the Cloud Services constitutes Customer Confidential Information.
Each party as recipient agrees: (i) to exercise at least the same degree of care to safeguard Confidential Information of the disclosing party as the recipient exercises to safeguard the confidentiality of its own confidential information, but not less than reasonable care; (ii) to use the disclosing party’s Confidential Information only in connection with exercising its rights and performing its obligations under these Terms; and (iii) to not disclose or disseminate the disclosing party’s Confidential Information to any third party and that the only employees and contractors who will have access to the disclosing party’s Confidential Information will be those with a need to know who have agreed to abide by the obligations set forth in this Section pursuant to a written confidentiality agreement.
Egnyte maintains appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the Content in the Cloud Services. The third party data center providers utilized by Egnyte in the provision of the Services will maintain at a minimum SSAE 16 audit certification or its equivalent. Except as requested by you in connection with customer support, we will not (i) modify the Content, (ii) disclose the Content except pursuant to the requirements of a governmental agency, by operation of law, to investigate occurrences that may involve violations of system or network security, or as you expressly permit in writing, or (iii) access the Content except to provide the Services or to address other service or technical problems.
Information will not be deemed Confidential Information of either of us under these Terms if such information: (i) is or becomes rightfully known to the recipient without any obligation of confidentiality or breach of these Terms; (ii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these Terms by the recipient of such Confidential Information; or (iii) is independently developed by the recipient of such Confidential Information without breach of these Terms. Confidential Information will remain the property of the disclosing party.
As between Customer and Egnyte, Customer or its licensors own all right, title and interest in and to the Content provided, transmitted or processed through, or stored in, the Cloud Services. Customer hereby grants Egnyte the right to transmit, use, modify, adapt, reproduce, display or disclose the Content solely (i) to provide the Services to Customer or any User, (ii) to comply with any request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law, (iii) for statistical use (provided that such data is not personally identifiable), and (iv) as necessary to monitor and improve the Cloud Services and corresponding support. Customer represents and warrants that Customer has all rights in the Content necessary to grant these rights and use the Cloud Services, and that the transmission, storage, retrieval, and processing of the Content do not violate any law or these Terms.
As between Egnyte and Customer, Egnyte or its licensors own and reserve all right, title and interest in and to the Services (including all hardware, software and other items used to provide the Cloud Services) and Materials, including all intellectual property rights in any of the foregoing. No title to or ownership of any proprietary rights related to the foregoing is transferred to Customer or any User pursuant to these Terms or any transaction contemplated by these Terms. Egnyte reserves all rights not explicitly granted to Customer. Egnyte is free to use any comments, suggestions, recommendations, and other feedback you provide with respect to the Services for any purpose, without obligation.
Egnyte may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Services. Unless Egnyte has granted Customer licenses to our intellectual property in these Terms, providing Customer with the Services does not give Customer any license to Egnyte’s intellectual property. Any rights not expressly granted herein are reserved.
EGNYTE PROVIDES THE SERVICES “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EGNYTE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EGNYTE SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, THESE EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Egnyte, its officers, directors, employees, and agents, against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Services, in breach of these Terms: (a) infringes any patent, trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Egnyte's actions) or (b) violates applicable law or these Terms. Egnyte will provide you with notification of any such claim or demand that is subject to your indemnification obligation.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FOLLOWING APPLIES: (a) IN NO EVENT WILL THE LIABILITY OF EGNYTE, ITS AFFILIATES, OFFICERS, EMPLOYEES, OR AGENTS FOR ANY AND ALL CLAIMS RELATING TO THIS AGREEMENT OR THE TRANSACTIONS UNDER IT, INCLUDING THE SERVICES EXCEED THE GREATER OF $100.00 OR THE TOTAL AMOUNT OF FEES THAT YOU PAID US DURING THE PREVIOUS THREE MONTH PERIOD, AND (b) IN NO EVENT WILL EGNYTE, ITS AFFILIATES, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF EGNYTE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Egnyte reserves the right to temporarily suspend or terminate your access to the Services at any time in Egnyte's sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Cloud Services for: (i) the actual or suspected violation of these Terms; (ii) the use of the Cloud Services in a manner that may cause Egnyte to have legal liability or disrupt others' use of the Cloud Services; (iii) the suspicion or detection of any malicious code, virus or other harmful code in your Account; or (iv) your use of excessive storage capacity or bandwidth. If, in our determination, the suspension might be indefinite or we have elected to terminate your access to the Cloud Services, we will use commercially reasonable efforts to notify you through the Cloud Services. You acknowledge that if your access to the Cloud Services is suspended or terminated, you may no longer have access to the Content that is stored with the Cloud Services.
In addition to our other rights of termination, if your Account is not currently subject to a paid subscription plan with us, we may terminate your Account if: (i) you do not engage in any activity in the Account within 30 days after registering for the Cloud Services, or (ii) you do not engage in any activity in an Account for 120 consecutive days. In the event of such termination, any of your Content may be lost.
Upon termination of these Terms for any reason, all of your rights to use or access the Cloud Services will cease. For 30 days following the expiration or termination of these Terms or the applicable subscription term for which you have paid, and subject to your prior written request, we will grant you with limited access to the Cloud Services solely for purposes of your retrieval of the Content. After that 30 day period, Egnyte has no further obligation to maintain the Content and will delete the Content unless legally prohibited.
These Terms will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Any dispute between the parties will be brought in a court in Santa Clara County and each party irrevocably waives any claim that such court does not have personal jurisdiction over the party. All use of the Services is expressly governed by any applicable u and import laws, and you agree to comply with all such laws. Claims arising out or related to these terms must be filed within two years of the date on which the claim arose unless local law requires a longer time to file claims. If a claim is not filed accordingly, then it is permanently barred.
If you are a U.S. government entity, you acknowledge that any Egnyte Client Software and Documentation are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
You may not assign these Terms or your rights and obligations under them, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid.
Neither party will be liable to the other for any delay or failure to perform its obligations under these Terms (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party’s reasonable control.
Egnyte reserves the right to release a press announcement regarding the parties’ relationship, and to include Customer’s name on Egnyte’s customer lists on Egnyte’s web site and in any other marketing materials.
We respect the intellectual property of others, and reserve the right to delete or disable Content that appears to violate these terms or applicable law. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that Content infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed or access to it blocked. Federal law requires that your notification include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The notification must be sent to:
Attn: Legal Department
1350 W. Middlefield Road.
Mountain View, California 94043
We provide the above contact information for purposes of the DMCA only and reserve the right to respond only to correspondence that is relevant to this purpose.