(Last revision – May 1, 2018)
The below terms and conditions, together with an Order Form, forms a binding services agreement (the “Agreement”) between the Customer named on the Order Form and Egnyte, Inc., a Delaware corporation, located at 1350 W. Middlefield Road, Mountain View, California 94043 (“Egnyte”). Customer’s signature on the Order Form constitutes Customer’s acceptance of the Agreement as of the date specified on the Order Form.
1. Definitions and Interpretation.
“Account” means an account created by or on behalf of Customer within the Services.
“Administrator” means i. with respect to the Egnyte Connect Service, the Power Users appointed by Customer to have administrative rights to the Egnyte Connect Service including to add licenses, cancel licenses and define the scope of the Egnyte Connect Service, and ii. with respect to the Egnyte Protect Service, those individuals identified by Customer to have the ability to interface directly with the Egnyte Protect Service.
“Connector” means the Egnyte configured agent through which the Egnyte Protect Service will access Customer’s content repositories.
“Content” means files, materials, data, text, audio, video, images or other content.
“Content Repository Users” or “CRUS” means individuals existing in a content repository whose Content will be scanned under the Egnyte Protect Service in accordance with the terms of the Agreement.
“Documentation” means the 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.
“Egnyte Connect Service” is a service enabling secure file sharing, editing, and collaboration for content stored in private datacenters and/or through a cloud–based repository.
“Egnyte Protect Service” is a content governance service that monitors pre–defined content repositories to identify potential corporate–wide access control problems within them.
“Order Form” means Egnyte’s then–current standard form setting forth the Services, fees and payment terms.
“Services” refers, collectively, to Egnyte’s hosted i. Connect Service and ii. Protect Service, the applicable features of which are more specifically described in the Order Form.
“User” means an individual authorized by Customer to be a Power User or a Business Partner User of the Egnyte Connect Service, as follows:
- “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 be provisioned with a Power User license.
- “Business Partner User” also referred to as a Standard User, means an individual other than a Power User. For clarity, an employee, consultant, or contractor of Customer may not use a Business Partner User license.
This Agreement contains certain provisions that are unique only to the Egnyte Connect Service or Egnyte Protect Service. Those provisions are only binding and enforceable to the extent that Customer has purchased a subscription to said Services. Section headings are provided for general reference only, and are not probative in interpreting the meaning of any provisions hereunder.
2. Availability and Use of the Services.
- General: Egnyte will make the Services available to Customer during the Term of this Agreement for its business purposes solely through any Account registered to Customer and in accordance with the Order Form placed with Egnyte. Any changes in the quantity or type of Services are subject to separate mutual, written agreement of the parties. For clarity, the Services are not for resale.
- Egnyte Protect Service: Egnyte Protect Service modules included in the base service are known as “Access Control” and “Content Classification.” Customer shall be responsible for configuring these modules per Customer requirements, all in accordance with and subject to the functionalities offered by Egnyte in such modules. Egnyte Connectors included in the Egnyte Protect Service are those Connectors certified in writing for usage by Egnyte and which Customer has identified for provisioning in connection with its content repositories.
- Access to the Services. Egnyte provides its Services in a hosted, cloud-based format. Egnyte makes the Egnyte Clients available to Customer, including Administrators and 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 or Administrator to engage with the Services.
- Provision of Support. Egnyte will provide support as described in the Order Form. Egnyte may change its support model from time to time on written notice to Customer (which may include posting such changes on Egnyte’s customer support website) as long as the level of support is not materially less than that described in the Order Form as of the effective date of the Order Form.
- Data Protection, Security Measures and Backup Procedures. Egnyte will comply with the data protection and information security procedures described in Egnyte’s Data Protection Addendum. The Data Protection Addendum may be updated from time to time on written notice to reflect enhancements in the security and availability of the hardware and software cloud infrastructure used to provide the Services. On an annual basis, Egnyte will provide Customer with SSAE16 Reviews from the third party data center providers utilized in the provision of Services to Customer. Customer acknowledges and agrees that all SSAE16 Reviews constitute Confidential Information of Egnyte or its providers. To provide availability and redundancy of Customer Content, Egnyte maintains copies of the Content across two data centers at all times.
3. 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 U.S. federal Digital Millennium Copyright Act, and (iv) will ensure that any and all necessary permissions are secured to enable Egnyte to access, copy and/or use Content as necessary to perform the Services including, but not limited to, consent of Users to process Content in general and any personal data in particular (and Customer’s signature on this Agreement confirms that Users’ consent has been secured). Absent a binding legal order, Egnyte does not access a Customer’s Account for the purpose of monitoring Content transmitted through the Egnyte Connect Service.
- Passwords and Accounts. Customer is responsible for all activities conducted under its User and Administrator logins, and for safeguarding the confidentiality of the User/Administrator 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, Administrator or User misuse or loss, or the 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 Business Partner 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.
- Notices. Customer acknowledges that Egnyte may send it and its Users communications or data regarding the Services using electronic means. These may include, but are not limited to (i) notices about usage of the Services, including any notices concerning violations of use, (ii) updates to the Services, (iii) materials regarding Egnyte's products and services, and (iv) information the law requires Egnyte to provide. Egnyte provides Users the opportunity to opt-out of receiving certain of these communications by following the opt-out instructions provided in the message, and Administrators may block communications to Users via the Account. However, Egnyte may continue to provide necessary and/or required information by email or via access to a website that Egnyte identifies. Notices via email will be deemed given and received when the email is sent. Notices to Egnyte should be sent 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.
- Third Party Services and Content. All transactions using the Services are between the transacting parties only. The Services may contain features and functionalities linking or providing Customer 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. Customer acknowledges that Egnyte is not responsible for such content or services. Egnyte is neither an agent of any third party nor a direct party in any such transaction. Any of those activities, and any terms associated with those activities, are solely between Customer and the applicable third-party.
4. Fees and Payment.
- Fees. Customer will pay fees to Egnyte as set forth in the Order Form. If Customer upgrades or expands consumption of the Services within a Subscription Term (for example, to obtain additional storage, CRUS, User access, features or functionality) or if Customer’s use exceeds the Services plan ordered by Customer (each of the foregoing is referred to as a “Services Upgrade”), Customer agrees to pay for the Services Upgrade at the pricing specified in the Order Form (and, if not specified, then according to Egnyte’s then current pricing). Fees for Services Upgrades will be invoiced on or after the Services Upgrade is implemented, and will be paid in accordance with the payment terms then in effect.
- Fee Increases. Egnyte reserves the right to increase its fees at its discretion. Any increase in fees for Services, other than for a Services Upgrade, will take effect at the beginning of the next renewal Subscription Term applicable to Customer. For Agreements with an auto-renewal provision, Egnyte shall provide Customer with at least 45 days’ advance written notice (via email) of such prospective increase in fees.
- Invoicing and Payment Terms. All fees will be due and payable in accordance with the Order Form. Customer agrees to keep all information in Customer’s billing account current. Payment methods and billing account information may be changed by using the means provided Egnyte, including via Egnyte’s website; however, such changes do not affect charges submitted to Customer’s billing account prior to the date on which the changes are processed and take effect. In the event that Customer disputes any invoiced fees, Customer will provide written notice of the disputed amount within the payment period and timely pay any undisputed portion of such invoice. The parties agree to cooperate in good faith to resolve any disputed invoice or portion thereof. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. At Egnyte’s discretion, past due amounts may accrue a late fee equal to 1.5% per month or the maximum amount allowed by applicable law, whichever is less. Customer will pay for all reasonable costs incurred by Egnyte in collecting past due amounts, including reasonable attorneys' fees and other legal fees and costs. In addition to its other rights and remedies, Egnyte may suspend Customer’s access to the Services, or cancel the Services, if Customer’s account remains past due ten days after Egnyte provides Customer written notice of a past due invoice.
- Taxes. Fees are exclusive of Taxes and Customer shall pay or reimburse Egnyte for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use, withholding 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 this Agreement that are imposed by any government or other authority. Customer will promptly provide Egnyte with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. In the event any government or authority imposes withholding taxes on Egnyte’s fees, Customer shall increase the amount of fees payable to Egnyte in a manner such that Egnyte receives the full amount of committed fees pursuant to the Order Form.
- Ownership by Customer. As between Customer and Egnyte, Customer or its licensors own all right, title and interest in and to the Content.
- 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 or Egnyte Clients is transferred to Customer 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, an Administrator or a User with respect to the Services for any purpose, without obligation.
6. Professional Services.
- General. Customer may wish to receive certain professional services from Egnyte’s dedicated professional services team. Such services may include a rollout plan, project management, data and permissions migration, integrations, and customizations, all as described in a mutually agreed upon Statement of Work (“SOW”) accompanying the applicable Order Form. To the extent payment terms are not specified in the SOW, the payment terms in this Agreement shall apply.
- Deliverables, Ownership. (i) Unless otherwise set forth in the applicable SOW, Egnyte shall own all rights, title and interest in and to the Deliverables (excluding any Customer Property, defined below), and related intellectual property rights. Subject to terms and conditions of the Agreement, Egnyte hereby provides Customer during the Subscription Term with a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the Services. (ii) Nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise used by Egnyte to develop the Deliverables, and to the extent such items are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables. (iii) Customer shall own all rights, title and interest in and to any Customer Property. “Customer Property” means any technology, Customer-specific business processes, or deliverables, specifically as such materials are designated as Customer-owned property in a SOW. Egnyte shall have the right to use any such Customer Property solely for the purpose of providing the professional services to Customer hereunder and as set forth in the applicable SOW.
- Professional Services Warranty. In regards to professional services only, Egnyte warrants that: (i) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform the professional services has the necessary knowledge and experience to perform the professional services in accordance with this SOW; and (ii) the professional services will be performed for and delivered to Customer in a professional and workmanlike manner in accordance with the laws and regulations applicable to the performance of such professional services. Customer acknowledges that Egnyte’s ability to successfully perform professional services is dependent upon Customer’s provision of timely information, access to resources, and participation. If the professional services do not conform to the foregoing warranty, Egnyte will, without prejudice to its other rights and remedies under this Agreement or at law, re-perform the non-conforming portions of the professional services at no cost to Customer.
7. Warranties, Representations 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 Warranties and Representations.
- 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 the functionality of the Services will not be materially decreased during the then current Subscription 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 fees for the Services previously paid to Egnyte for the period beginning with Customer’s notice of nonconformity through the remainder of the Subscription Term.
- Egnyte represents that it makes best efforts in seeking to meet the requirements set forth in the Service Level Agreement (“SLA”), including System Availability of at least 99.9%. In the event of any failure to meet the SLA requirements, Egnyte will provide the service credits described in the Service Level Agreement (“SLA”)
- Egnyte warrants that the Services, if used in accordance with this Agreement, will not infringe the intellectual property rights of any third party. In the event of any failure to meet this warranty, Egnyte will provide the indemnification specified in Section 8.a (“Indemnification by Egnyte”).
- Customer Warranties. Customer hereby represents and warrants that (i) Customer has all rights in the Content necessary to grant the rights of access, copying and usage needed for Egnyte to properly perform the Services, and (ii) such access, copying and usage does not violate any law or other agreement to which Customer is a party.
- Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS SECTION 7, EGNYTE AND ITS SUPPLIERS AND LICENSORS 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 OR ERROR-FREE, OR THAT THE CONTENT WILL BE SECURE BEYOND ANY POSSIBLE THREAT.
- 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 (including pricing and other terms reflected in the Order Form), 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 who is not subject to an obligation of confidentiality vis–à–vis Disclosing 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. The Data Protection Addendum referenced in Section 2.d above contains additional terms pertaining to security breaches.
For purpose of clarification, in no manner are the non-disclosure/non-use provisions contained herein intended to constrain Egnyte in responding in the normal course to Customer’s or Users’ instructions while utilizing the functionalities of the Egnyte Connect Service (i.e. a User can instruct the Egnyte Connect Service to share Content with a third party outside of Customer’s organization and Egnyte will not have a duty to monitor the Content for confidentiality considerations). Egnyte will process Content only in accordance with Customer’s and Users’ instructions.
- 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 Confidential Information required by such court or agency, and (ii) continue to otherwise protect all Confidential 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 (without the need for the posting of a bond or other guarantee), 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. The aforementioned only pertains to Confidential Information transferred from one party to the other not within the usage of the Service; the destruction of Content on termination is governed by the terms of Section 11.c below.
- Indemnification by Egnyte. Egnyte will defend Customer from and against all claims, suits or actions made or brought against Customer by a third party (“Claim”) alleging that the Services infringe the intellectual property rights of that third party, and will indemnify Customer against any final judgment awarded (including reasonable attorneys’ fees and costs) or final settlement made with respect to such Claim which imposes a financial obligation on Customer. 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 and refund Customer all prepaid subscription fees for the remainder of the Subscription Term on a pro rata basis. 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 without such combination; or (iii) Customer’s use of the Services other than in accordance with this Agreement. This Section 9.a states Customer’s exclusive remedy for any intellectual property claim against Egnyte 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 indemnify Egnyte against any final judgment awarded (including reasonable attorneys’ fees and costs) or final settlement made with respect to such claim which imposes a financial obligation on Egnyte.
- 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 a third party demand for which indemnification is sought; (ii) granting the party providing the indemnification sole control over the defense, negotiation, compromise and settlement of any legal proceedings; and (iii) cooperating with the party providing the indemnification with respect to any such legal proceedings. The party requesting the indemnification may elect to participate in any such legal proceedings with an attorney of its own choice and at its own expense.
10. Limitation of Liability.
- Limitation of Liability. Except for indemnification Claims, neither party's aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall exceed the greater of $100,000 or the cumulative fees paid by Customer under this Agreement during the twelve months preceding the incident. With respect to an indemnification Claim under Section 9 above, in no event will either party’s aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) exceed the greater of $200,000 or total amount paid by Customer under this Agreement. The foregoing shall not limit Customer’s payment obligations under Section 4 (“Fees and Payment”).
- Exclusion of Consequential and Related Damages. Except in the event of i. property damage or personal injury, or ii. fraud or a material misrepresentation, in no event shall either party have any liability to the other party 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 not the party 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 date that the Order Form is last signed by a party and will continue for the period designated in the Order Form (“Subscription Term”). Upon expiration of the initial Subscription Term of an Order Form, the Order Form will automatically renew for successive twelve month Subscription Terms unless (i) Customer elects to terminate this Agreement by giving Egnyte at least 30 days’ written notice and following the process specified by Egnyte in the Account, in which case the Services will end at the end of the then current Subscription Term following the stated notice, or (ii) Egnyte elects to terminate this Agreement by giving Customer at least 30 days’ written notice prior to the end of the then current Subscription Term. If Customer attempts to terminate the Agreement during a Subscription Term other than for cause, Egnyte will not provide Customer with a refund for any pre-paid fees; this, without derogating from Egnyte’s rights to bring a claim for all fees that Customer is committed to paying under the Agreement, with all such fees accelerating and becoming due on the date of termination. For the avoidance of doubt and without derogating from Egnyte’s right to increase fees as set forth in Section 4.b above, any discounts offered by Egnyte to Customer during a given year will not renew during any renewal Subscription Term unless agreed to by the parties in writing.
- 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 (except to the extent that a party is prohibited by law from terminating under such conditions). Upon any termination for cause by Customer, Egnyte will refund Customer any prepaid subscription fees for the post-termination period on a pro rata basis.
- 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 5 (Ownership), 7.d (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 in accordance with the terms set forth in the Data Protection Addendum referenced in Section 2.d above.
- 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 (including any attachments to the Order Form), 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 of the execution of this Agreement and to include Customer’s name on Egnyte’s customer lists and in its marketing materials, including on Egnyte’s websites; provided, however, that Egnyte will first coordinate any such actions with Customer.
- Entire Agreement. This Agreement 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 license 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.