MSP End Customer Agreement
(last revision – February 2021)
The terms of service of this MSP End Customer Agreement (this “Agreement”) shall apply to the entity (“Customer”) using, through its relationship with an MSP, the services of Egnyte, Inc. (“Egnyte”), a Delaware corporation, with its principal place of business at 1350 W. Middlefield Road, Mountain View, CA 94043. By using the Services through its MSP, Customer acknowledges and agrees to be bound by the terms listed herein.
1. Definitions and Interpretation.
“Account” means a Content storage account created by or on behalf of Customer within the Services.
“Content” means files, materials, data, text, audio, video, images or other content.
“Documentation” means written materials describing the functionality, operation, and use of the Services that Egnyte provides or makes generally available to customers of the Services, including material located at https://helpdesk.egnyte.com/hc/en-us.
“MSP” means a managed service provider that has entered into a contractual relationship with Egnyte to sell Egnyte’s services to end customers.
“Services” refers to the services ordered by Customer through its MSP, which may include i. the Egnyte Platform, ii. the Egnyte Connect Service (including the Egnyte Archive Service), or iii. the Egnyte Protect Service. Some Services, including the Egnyte Archive Service, have usage restrictions that could trigger additional costs if not followed, so Customer should review any product limitations with its MSP before purchase.
“User” means an individual authorized by Customer to be a Power User or a Standard User.
- “Power User” means an individual authorized by Customer who is an employee, consultant, or contractor of Customer. An individual who is a third party but requires Power User functionality may also use a Power User subscription.
- “Standard User” also referred to as a Business Partner User, means an individual other than a Power User. For clarity, an employee, consultant, or contractor of Customer may not use a Standard User subscription.
2. Availability and Use of the Services.
- Services. Egnyte will make the Services available to Customer during the Term of this Agreement for its internal business purposes provided Customer has paid to its MSP (or Egnyte directly, where applicable) in every case the required subscription or other applicable fees. For clarity, for purposes of the foregoing sentence, “internal business purposes” includes use of the Services to exchange Content between Customer and Users with whom Customer conducts business. Egnyte will make best efforts to achieve monthly Services uptime of at least 99.9%.
- Access to the Services. Egnyte provides its Services in a hosted, cloud-based format. Egnyte makes the Egnyte Clients available to Customer, including Users, solely as an ancillary tool for accessing the Services. Customer acknowledges that, from time to time, Egnyte may issue updates to the Egnyte Clients (for example, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In that event, in order for Customer to best utilize the Services, either Customer will be offered the ability to upgrade the version of the Egnyte Clients which are currently running or they will be automatically upgraded by Egnyte. “Egnyte Clients” means the applications that are installed on Customer’s local server, desktop, mobile or other device (for example, mobile apps, desktop apps, and group apps) and that enable a User to engage with the Services.
- Provision of Support. Egnyte will provide support as described in its agreement with MSP.
- Data Protection, Security Measures and Backup Procedures. Egnyte will comply with the data protection and information security procedures described in the following link: https://www.egnyte.com/data-protection-addendum (the “DPA”). The DPA may be updated from time to time to reflect changes in applicable law or enhancements in the security and availability of the infrastructure used to provide the Services.
3. Evaluation Period.
If it is agreed to provide Customer with an evaluation or other trial period applicable to the Services, then Customer may access the Services under this Agreement during that evaluation period which period will, in no event, exceed 15 days from the Agreement Effective Date (“Evaluation Period”). Notwithstanding Section 7.b (“Warranties and Disclaimers”) and 9.a (“Indemnification by Egnyte”), during the Evaluation Period, the Services are provided “as-is” without any warranty.
4. Customer’s Responsibilities relating to Use of the Services.
- Content. Customer (i) is responsible for the accuracy and quality of the Content; (ii) will ensure that the Content complies with this Agreement and applicable laws; (iii) will promptly handle and resolve any notices and claims from a third party claiming that any Content violates such party’s rights, including regarding take-down notices pursuant to the Digital Millennium Copyright Act; and (iv) will maintain appropriate security, protection and backup copies of the Content, which may include (A) the use of encryption technology to protect the Content from unauthorized access and (B) routine archiving of the Content. Egnyte will have no liability of any kind as a result of Customer’s deletion, loss, correction, or destruction of Content or damage to or failure to store or encrypt any Content. Egnyte does not monitor any Content transmitted through the Services.
- Passwords and Accounts. Customer is responsible for all activities conducted under its User logins, and for safeguarding the confidentiality of the User names and passwords. Egnyte will have no liability to Customer or any third party as a result of any unauthorized disclosure or access to Customer’s Account or Content as a result of Customer’s misuse, loss or theft of any password or username. Customer will provide Egnyte with prompt written notice regarding any unauthorized use of an Account, Content or the Services of which Customer becomes aware, and will take all steps necessary to terminate such unauthorized use. In addition, Customer will provide Egnyte with any cooperation and assistance reasonably requested by Egnyte related to any such unauthorized use.
- Use Restrictions. Customer will comply with, and ensure its Users comply with, this Agreement. In addition, Customer and its Users and Administrators will not: (i) use the Services in any manner or for any purpose other than as expressly permitted by this Agreement including, without limitation, allowing Users who are to be classified as Power Users in accordance with the terms of this Agreement to use Standard User logins to the Egnyte Connect Service, (ii) allow multiple individuals to utilize the same User login credentials, (iii) resell, sublicense, lease or otherwise make the Services available to any third party; (iv) modify, copy or create derivative works based on the Services; (v) reverse engineer, disassemble or decompile the Services, or attempt to derive source code from the Services; (vi) remove, obscure or alter any proprietary right notice related to the Services; (vii) use the Egnyte Connect Service to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; (viii) store or transmit Content: (A) containing unlawful, defamatory, threatening, pornographic, abusive, or libelous material, (B) containing any material that encourages conduct that could constitute a criminal offense, or (C) that violates the intellectual property rights or rights to the publicity or privacy of others; (ix) use the Services to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (x) interfere with or disrupt use of the Services by other Egnyte customers or to other servers or networks connected to the Services, or violate the regulations, policies or procedures of such other networks; (xi) access or attempt to access Egnyte’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means; (xii) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (xiii) use the Services, or permit their use, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Egnyte’s prior written consent.
- Product-Specific Special Terms. To the extent Customer purchases the Services listed therein via its MSP, the product-specific special terms at the following link shall apply to Customer’s use of the Services during the term of this Agreement, mutatis mutandis: https://www.egnyte.com/product-specific-special-terms. Any special terms listed therein for Services not purchased by Customer via its MSP shall not apply. Egnyte may update this link from time to time, provided that any such updates will only apply from the earlier of i. the date of signing of a new agreement with Egnyte, or ii. the date of renewal of the Term of this Agreement.
Fees are based on the scope of use selected by Customer under its MSP order and as made available by Egnyte. If Customer wishes to change the scope of use, Customer is required to notify MSP and request additional information and pay any applicable charges. Customer’s use of the Services will not exceed the scope of use for which Customer has paid to MSP the applicable fees. A MSP is not authorized to make any promises or commitments on Egnyte’s behalf, and Egnyte is not bound by any obligations other than those specified in this Agreement. Customer acknowledges that Egnyte may terminate Customer’s rights to use the Services and discontinue or suspend Services if Egnyte does not receive its corresponding payment from MSP.
- Ownership by Customer. As between Customer and Egnyte, Customer or its licensors own all right, title and interest in and to the Content. Customer grants Egnyte the right to use the Content solely to provide the Services as specified in this Agreement, and hereby represents and warrants that (i) Customer has all rights in the Content necessary to grant these rights of use, and (ii) such use does not violate any law or this Agreement.
- Ownership by Egnyte. As between Egnyte and Customer, Egnyte or its licensors own all right, title and interest in and to the Services, Egnyte Clients and all hardware, software and other items used to provide the Services. No title to or ownership of any proprietary rights related to the Services is transferred to Customer or any User pursuant to this Agreement or any transaction contemplated by this Agreement. Egnyte reserves all rights not explicitly granted to Customer. Egnyte is free to use any comments, suggestions, recommendations, improvements and other feedback provided by Customer or a User with respect to the Services for any purpose, without obligation.
7. Warranties and Disclaimers.
- Mutual Warranties. Each party represents and warrants to the other that (i) it has the legal power to enter into and perform under this Agreement; and (ii) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
- Egnyte Representations and Warranties. Egnyte warrants that the Services will perform in all material respects in accordance with the Documentation. Egnyte may modify the Documentation in its sole discretion as long as at all times this Agreement is in effect the functionality of the Services will not be materially decreased during the current Term. Any such modifications can be accessed by Customer in the Documentation. In the event the Services are nonconforming, Egnyte will fix, provide a work around, or otherwise repair or replace the nonconforming Services, or, if Egnyte is unable to do so, terminate Customer’s access to the Services and return to MSP the fees for the Services previously paid to Egnyte for the period beginning with Customer’s notice of nonconformity through the remainder of the Term of Customer’s subscription.
- Disclaimer of Warranties. THE PROVISIONS OF THIS SECTION 7 CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND EGNYTE’S SOLE AND EXCLUSIVE LIABILITY, FOR BREACH OF THE WARRANTIES SET FORTH IN THIS AGREEMENT. EXCEPT AS SET FORTH IN THIS SECTION 7, EGNYTE AND ITS SUPPLIERS AND LICENSORS (COLLECTIVELY, “SUPPLIERS”) MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EGNYTE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. EGNYTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
- Third Party Supplied Storage. Customer is solely responsible for ensuring that storage independently secured by Customer conforms with Customer’s requirements, including those pertaining to availability, durability, security, and costs associated with such storage. Customer acknowledges and accepts that associated costs to Customer can be impacted by the interaction between Egnyte’s Services and Customer-supplied storage. Egnyte disclaims any responsibility for such Customer storage requirements and shall not be liable to Customer for any failures of the third party storage provider or costs imposed on Customer by the provider.
- Confidential Information Defined. "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Content, the Services (including the Egnyte Client), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information of a Disclosing Party includes any information the Disclosing Party has received from others which the Disclosing Party is obligated to treat as confidential or proprietary. Confidential Information will not include any information that, in each case without breach of any obligation owed to Disclosing Party: (i) is or becomes generally known to the public; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party; (iii) was independently developed by Receiving Party; or (iv) is received from a third party.
- Obligations regarding Confidential Information. Receiving Party will not use or disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party will protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
- Compelled Disclosures. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, Receiving Party will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure. The Receiving Party will (i) take reasonable steps to limit any such provision of Confidential Information to the specific Information required by such court or agency, and (ii) continue to otherwise protect all Information disclosed in response to such order, subpoena, regulation or process of law. Except for such required disclosure, the Confidential Information will remain subject to the terms of this Agreement and may only be disclosed as set forth in this Section 8.
- Injunctive Relief. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
- Return of Confidential Information. Upon any termination of this Agreement, Receiving Party will continue to maintain the confidentiality of Disclosing Party's Confidential Information and, upon request, return to Disclosing Party or destroy (at Disclosing Party's election) all materials containing such Confidential Information.
- Indemnification by Egnyte. Subject to any other provisions of this Agreement, Egnyte will defend Customer from and against all claims, suits or actions (“Claim”) made or brought against Customer by a third party alleging that the Services infringe the intellectual property rights of that third party, and will pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such Claim. In addition to Egnyte’s obligation of indemnification, if the Services become or, in Egnyte’s opinion, are likely to become the subject of a claim of infringement, Egnyte may, at its sole option and expense, either procure for Customer the right to continue using the Services under the terms of this Agreement or replace or modify the Services to be non-infringing without material decrease in functionality. If neither of the foregoing options is reasonably practicable, in Egnyte’s judgment, Egnyte may terminate Customer’s access to the infringing Services. Egnyte will have no liability for any Claim to the extent the Claim is based upon (i) the Content; (ii) the Services in combination with any other product, service or device not furnished, recommended or approved by Egnyte, if such Claim would have been avoided by the Services, without such product, service or device; or (iii) Customer’s use of the Services other than in accordance with this Agreement. This Section 9.a states Customer’s exclusive remedy, and Egnyte’s sole liability to Customer, for any intellectual property claim regarding the Services.
- Indemnification by Customer. Customer will defend Egnyte against any Claim made or brought against Egnyte by a third party alleging that the Content, or Customer’s use of the Services in breach of this Agreement, infringes the intellectual property rights of that third party, and will pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such Claim.
- Indemnification Process. A party’s obligation of indemnification is subject to the party requesting the indemnification: (i) promptly notifying the party providing the indemnification in writing of the existence of the Claim for which indemnification is sought; (ii) granting the party providing the indemnification sole control over the defense, negotiation, compromise and settlement of the Claim; and (iii) cooperating with the party providing the indemnification with respect to any such Claim. The party requesting the indemnification may elect to participate in any such Claim with an attorney of its own choice and at its own expense.
10. Limitation of Liability.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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 $1,000.00 OR THE TOTAL AMOUNT OF FEES THAT YOU PAID US DURING THE PREVIOUS TWELVE MONTH PERIOD.
- Exclusion of Consequential and Related Damages. In no event shall Egnyte be liable for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or it has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
11. Term and Termination.
- Term. This Agreement will commence on the Agreement Effective Date and will continue for the period agreed upon between Customer and MSP, but in no event for a period exceeding the term of Egnyte’s agreement with MSP (the “Term”).
- Termination for Cause. A party may terminate this Agreement for cause immediately upon written notice: (i) for a material breach of this Agreement by the other party if the breach remains uncured 30 days after receipt of the initial written notice setting forth the breach in reasonable detail or (ii) if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
- Post-Termination Obligations. Within ninety days of termination of this Agreement for any reason, Egnyte will destroy all copies of Content that remain within Egnyte’s Services infrastructure.
- Survival. The terms of any sections that by their nature are intended to extend beyond termination including, but not limited to, Sections 6 ("Ownership"), 7.c ("Disclaimer of Warranties"), 8 ("Confidentiality"), 9 (“Indemnification”), 10 (“Limitation of Liability"), 11.c (“Post-Termination Obligations”), and 12 (“General Provisions”) will survive termination of this Agreement for any reason.
12. General Provisions.
- Governing Law. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules.
- Government Users. If Customer is a U.S. government entity, Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
- Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement. Egnyte may subcontract portions of the Services provided that Egnyte shall remain responsible for all such obligations under this Agreement.
- Waiver. No failure or delay in exercising any right hereunder will constitute a waiver of such right. Except as otherwise provided, remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in effect.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this Section will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party’s reasonable control including, but not limited to, natural disasters, war or acts of terrorism, industry-wide labor disruptions, Internet outages and governmental decrees.
- Public Announcement. Egnyte reserves the right to release a press announcement regarding the execution of this Agreement and to include Customer’s name on Egnyte’s customer lists in its marketing materials, including on Egnyte’s websites; provided, however, that Egnyte will first coordinate any such actions with Customer.
- General Compliance. . Without derogating from any other U.S. restrictions on dealings with foreign countries or persons, the countries listed on the following website are excluded from the scope of this Agreement for the entire Subscription Term: https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx. Customer and/or its Users’ interactions with countries and/or persons that are banned under any applicable export control laws and regulations shall be at Customer’s sole risk and liability. Further, Customer hereby takes notice of and will, to the extent applicable, comply with Egnyte’s Business Conduct and Ethics Policy, which can be found at the following link: https://www.egnyte.com/business-conduct-and-ethics.
- Entire Agreement. This Agreement, together with the Exhibits and Schedule(s), constitutes the entire agreement, and supersedes any and all prior agreements between the parties with regard to the subject matter hereof, including any non-disclosure agreement (with the confidentiality provisions of this Agreement to govern any prior disclosures of Confidential Information). In the event of any conflict of terms, this Agreement supersedes any click-through subscription agreements that may be included for the Egnyte Client. This Agreement may not be amended or modified except by a writing signed by both parties.