(Last revision – November 18, 2016)
This Services Agreement (the “Agreement”) is a legal 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 this Agreement as of the date specified on the Order Form. Since this Agreement governs Customer’s use of Egnyte’s online service, please read it carefully!
“Account” means a Content storage account created by or on behalf of Customer within the Services.
“Administrator” means the Power Users appointed by Customer to have administrative rights to the Services including to add licenses, cancel licenses and define the scope of the 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 user manuals that describe the functionality, operation, and use of the Services, and that Egnyte provides or makes generally available to customers of the Services, whether in printed or electronic form.
“Order Form” aka “Schedule A” means Egnyte’s then-current standard form.
“Services” refers, collectively, to Egnyte’s hosted storage solution for online storage, sharing and processing of Content as described in the Documentation.
“Software” means the software used, provided or made available by Egnyte for use in connection with the Services. Software includes 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 User to engage Content with the Services.
“User” means an individual authorized by Customer to be a Power User or a Business Partner User.
- “Power User” means an individual authorized by Customer who is an employee, consultant, or contractor of Customer or Customer’s Affiliate. An individual who is a third party but requires Power User functionality may also use 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 or Customer’s Affiliate may not use a Business Partner User license.
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 including to allow Users to store, share and retrieve Content through the Services solely through any Account registered to Customer and in accordance with the order placed with Egnyte. 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. In the event that your Users exceed the quantity or User type for which Customer paid, Customer agrees to pay for additional Users at Egnyte’s then-current pricing.
- Software Provided for Use with the Services. Subject to the terms and conditions set forth in this Agreement, Egnyte grants Customer (including Users) the nonexclusive, non-transferable, worldwide, internal use only license during the Term to install and use the Egnyte Client Software for the sole purpose of accessing the Services by Users. Customer acknowledges that, from time to time, Egnyte may issue updates to the Software (forexample, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In that event, the version of the Egnyte Client Software which is currently running will be automatically upgraded and Customer consents to such automatic upgrading. All updates to the Software will be subject to the terms and conditions of this Agreement.
- Provision of Support. Egnyte will provide support as described in Exhibit A (“Premium Support”). Egnyte may change Exhibit A from time to time on written notice to Customer (which may include posting such changed Exhibit onEgnyte’s customer support website) as long as the level of support is not materially less than that described in the Exhibit as of the Effective Date.
- Security Measures and Backup Procedures. Egnyte will comply with the information security procedures described in Information Security Procedures Commitment. Information Security Procedures Commitment 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. To provide availability and redundancy of Customer Content, Egnyte maintains three 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 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 will not and will ensure that its Users 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 Power Users to use Business Partner User logins, (ii) resell, sublicense, lease or otherwise make the Services available to any third party; (iii) , modify, copy or create derivative works based on the Services or the Software; (iv) reverse engineer, disassemble or decompile the Services, or attempt to derive source code from the Services or the Software; (v) remove, obscure or alter any proprietary right notice related to the Services; (vi) use the Services to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; (vii) 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; (viii) use the Services to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs (collectively, “Harmful Code”); (ix) 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; (x) 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; (xi) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (xii) use the Services or the Software, or permit their use, for purposes of product evaluation, bench marking or other comparative analysis intended for publication without Egnyte’s prior written consent; or (xiii) permit access to the Services or the Software by a direct competitor of Egnyte.
4. Fees and Payment.
- Fees. Customer will pay fees to Egnyte as set forth in Schedule A. If Customer upgrades or expands consumption of the Services within a Subscription Term (for example, to obtain additional storage, 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 Schedule A (and, if not specified, then as Customer and Egnyte mutually agree). Additional fees due for the Services Upgrade will apply for the entire month in which the Services Upgrade occurred and will be calculated to be coterminous with the applicable Subscription Term. Egnyte may change its fees by notifying Customer in writing at least 30 days in advance of the effective date of the change. 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. Renewal will be effective upon Egnyte’s receipt of Customer’s payment. If Customer does not remit payment by the commencement date of the next subsequent Subscription Term, the Services will be cancelled. Customer may also cancel the Services at the end of a Subscription Term upon written notification to Egnyte.
- Invoicing and Payment Terms. All fees will be due and payable in accordance with the Order Form, and are nonrefundable. 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 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.
- 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 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 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, improvements and other feedback provided by Customer or a User with respect to the Services for any purpose, without obligation.
6. 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 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. 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 prepaid fees for the Services previously paid to Egnyte for the period beginning with Customer’s notice of nonconformity through the remainder of the Initial Term or Renewal Term, as applicable.
- Egnyte warrants that the Services will 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 this warranty, 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”).
- Disclaimer of Warranties. The provisions of this Section 6 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 6, 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.
- 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 Schedules), the Content, the Services (including the Software), 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 7.
- 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. 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 and refund Customer all prepaid subscription fees for the remainder of the 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 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 8.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.
9. Limitation of Liability.
- Limitation of Liability. Neither party's liability with respect to any single incident 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 $100,000.00 or the cumulative fees paid by Customer under this Agreement during the six months preceding the incident, provided that 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 $200,000.00 or total amount paid by Customer during a twelve month period. The foregoing shall not limit Customer’s payment obligations under Section 4 (“Fees and Payment”).
- Exclusion of Consequential and Related Damages. 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.
10. Term and Termination.
- Term. This Agreement will commence on the Agreement Effective Date and will continue for the period designated in the Order Form thereafter (“Initial Term”). After expiration of the Initial Term, this Agreement will automatically renew for successive twelve month terms (each, a “Renewal Term” and, together with the Initial Term, referred to as the “Term” with each individual annual term referred to as a “Subscription Term”) unless (i) Customer elects to terminate this Agreement by giving Egnyte at least 30 days’ written notice and following the process specified by Egnyte on its website, in which case the Services will end at the end of the then current Services period following the 30 days’ notice, or (ii) Egnyte elects to terminate this Agreement by giving Customer at least 30 days’ written notice prior to the end of the Initial or any Renewal Term. If Customer terminates the Agreement during a Term other than for cause, Egnyte will not provide Customer with a refund for any pre-paid fees. For the avoidance of doubt, any discounts offered by Egnyte to Customer during a given year will not renew during any Renewal Term unless agreed to by the parties in writing. As set forth in Section 4.a (“Fees”), any change in fees for Services imposed by Egnyte will take effect at the beginning of the next subsequent Subscription 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. Upon any termination for cause by Customer, Egnyte will refund Customer any prepaid subscription fees for the remainder of the Term on a pro rata basis.
- Post-Termination Obligations. Upon termination of this Agreement for any reason, (i) Customer will have no further rights to use or access the Services or the Software; (ii) Customer will, within five days of such termination, destroy all copies of the Software as well as any Confidential Information of Egnyte, including the Documentation and (iii) if requested by Egnyte, Customer will promptly provide to Egnyte a written certification signed by an authorized representative certifying to such destruction.
- Survival. The terms of any sections that by their nature are intended to extend beyond termination including, but not limited to, Sections 5 (Ownership), 6.c (Disclaimer of Warranties), 7 (Confidentiality), 8 (“Indemnification”), 9 (“Limitation of Liability), 10.c (“Post-Termination Obligations”), and 11 (“General”) will survive termination of this Agreement for any reason.
11. 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 (including all Schedules hereunder), 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.
- 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 it its marketing materials, including on Egnyte’s websites.
- Entire Agreement. This Agreement, together with the Exhibits, constitutes the entire agreement, and supersedes any and all prior agreements, between the parties with regard to the subject matter hereof. This Agreement specifically supersedes any click-through license agreements that may be included for the Software. This Agreement may not be amended or modified except by a writing signed by both parties.