Egnyte MSP Agreement

(Last revision – July 2020)

The below terms of service represent a binding MSP Agreement (the “Agreement”) between you (“MSP”) and Egnyte, Inc., a Delaware corporation, located at 1350 W. Middlefield Road, Mountain View, California 94043 (“Egnyte”). MSP’s signature on or electronic acceptance of these terms constitutes MSP’s binding commitment to this Agreement as of the date of such signature or acceptance (the “Effective Date”). Any individual purchasing Services on behalf of an organization represents that such individual has the authority to bind the organization to this Agreement. The Services may not be used by people under the age of 13.

In particular, MSP should note Section 11.a of this Agreement and its auto-renew provisions.

1. Definitions.

“Client” 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.

“Content” means files, materials, data, text, audio, video, images or other content.

“Content Under Protection” means Content accessible by the Egnyte Protect Service, as detailed in the applicable Order Form under this Agreement.

“Customer” means MSP’s customer.

“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 Archive Service” is Egnyte’s archive storage solution under the Egnyte Connect Service. Until such time as Egnyte has updated the MSP Portal to include the Egnyte Archive Service, the provisioning for these Services shall be coordinated directly between the parties.

“Egnyte Connect Service” is a service enabling secure file sharing, editing, and collaboration for content stored in private datacenters, through a cloud-based repository and/or through a User’s device linked to the Services.

“Egnyte GxP Platform Service” is a suite of reporting tools attached to one domain that includes additional reporting and audit trails. The Egnyte GxP Platform Service requires creation of an Egnyte Connect domain that is able to hold Customer’s regulated data. Such domain will be generated following Egnyte’s qualifications procedures for GxP use. In addition to this domain, the Egnyte GxP Platform Service includes a separate test domain at no additional cost, which includes 25 GB of storage and which may be accessed by up to 5 unique Power Users and up to 5 unique Standard Users.

“Egnyte Platform” is Egnyte’s hosted content services platform (including those applications associated with the Egnyte Connect Service and/or the Egnyte Protect Service) that enables the processing, governance, and general management of Content in accordance with the purchased Egnyte Platform subscription. An individual Egnyte Platform subscription includes the per-unit features and functionality under the Egnyte Platform plan indicated on MSP’s Order Form.

“Egnyte Protect Service” is a content governance service that monitors Egnyte-supported content repositories to identify potential corporate-wide access control problems within such repositories.

“Egnyte Support” means reasonable support provided by Egnyte to MSP for the Services (above and beyond MSP Support).

“MSP Portal” means MSP’s access to Egnyte’s internal system that tracks Customer subscriptions for the Egnyte Connect Service and the Egnyte Protect Service and Customer prospects for whom a trial account for the Services has been established through Egnyte’s registration process that uniquely identifies them as prospects of MSP.

“MSP Support” means the Level 1 Support provided by MSP to Customers for the Services as further described in Section 5.c.

“Order Form” means Egnyte’s then-current standard form (including an online form for purchases) setting forth the Services, pricing, fees, and payment terms.

“Pricing Schedule” means the pricing for Services as presented in an Order Form for online purchase or the pricing detailed in a mutually-agreed written Order Form.

“Services” refers to the services ordered under an Order Form under this Agreement.

“Support” means Egnyte Support and/or MSP Support, per the context of usage in this Agreement.

“User” means:

For the Egnyte Connect Service and Egnyte GxP Platform Service, an individual authorized by Customer to be a Power User or a Standard User/Business Partner User.

"Power User" means an individual authorized by Customer who is an employee, consultant, or individual contractor of Customer. An individual who is a third party but requires Power User functionality may also use be provisioned with 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; rather Users of Customer’s partners may be Standard Users.

For the Egnyte Protect Service, an individual existing in a content repository whose Content will be scanned under the Egnyte Protect Service in accordance with the terms of the Agreement.

This Agreement contains certain provisions that are unique to the Egnyte Connect Service, Egnyte GxP Platform Service, or Egnyte Protect Service. Those provisions are only binding and enforceable to the extent MSP purchases a subscription to said services. Section headings are for general reference only and are not probative in interpreting the meaning of any provisions hereunder.

2. Appointment.

Appointment as MSP. Subject to the terms and conditions set forth in this Agreement, Egnyte appoints MSP as Egnyte’s non-exclusive MSP of the Services and permits MSP to promote, market, resell, solicit orders for, and procure subscriptions to the Services as made available by Egnyte from time to time, for use by MSP Customers and Customer prospects, and MSP accepts this appointment.
Initial 30 Day Period. MSP shall be granted access to the MSP Portal and shall be treated as a member of Egnyte’s MSP Program during the first 30 day period from the Effective Date without having submitted a purchase order hereunder. However, should MSP fail to submit a purchase order for an initial purchase by the end of such 30 day period, Egnyte may immediately terminate the Agreement in accordance with Section 11 below. Upon registration and agreement to these terms, Customer may, at Egnyte’s sole discretion, be provisioned with a single User subscription (per-plan) at no cost in order to access the MSP Portal during the pre-purchase period.
Non-Exclusive Agreement. This Agreement is nonexclusive. Nothing in this Agreement will be construed as limiting, in any manner, Egnyte’s marketing or distribution activities or restricting or precluding Egnyte from providing any services to or for any other customer directly or indirectly, through any commercial channel (including but not limited to MSPs, dealers, distributors, licensees and agents), or in any territory.
Resale Limitations. Subject to all the terms of this Agreement, Egnyte permits MSP to make the Services available to MSP’s Customers by selling subscriptions and other access to the Services solely to Customers for their own usage (and not for resale by Customers). For clarity, Egnyte will be the hosting provider for the Services. MSP is not granted any right to host or otherwise operate the Services.

3. Provision of the Services.

Process for Customer Deployment.
1. Assignment of MSP Code. Egnyte will assign a unique code (each, a “MSP Code”) for MSP which will be used to track MSP’s sales and billing activity within Egnyte’s systems. In addition, this MSP Code will be used to identify all of MSP Customers in Egnyte’s internal systems. Each Customer for whom MSP submits an order will be registered on the Services separately, under a separate Customer account as identified by a unique domain. Egnyte will provide MSP with access to this information via the MSP Portal.
2. Deployment Process. To start the deployment process, MSP will initiate a trial account to establish the unique domain associated with the Customer using the Customer registration link available through the MSP Portal. Once the domain has been established, MSP will provide the domain name to its Egnyte channel representative via email.
3. Customer Agreement. Egnyte makes the Services available to Customers in accordance with Egnyte’s End Customer Terms of Service located at the following link: https://www.egnyte.com/MSP-end-customer-tos (the “Customer Agreement”). MSP commits to flowing down these terms, or terms that are substantially similar, to each Customer in a binding manner.
4. GxP Platform Customer Agreement. Notwithstanding Section 3.a.iii. above, MSP understands and acknowledges that any Customer looking to access the Egnyte GxP Platform Service must enter into a separate written customer agreement with Egnyte (the “GxP Platform Customer Agreement”) before doing so. In such case, MSP shall work with Egnyte and Customer to execute the GxP Platform Customer Agreement. MSP understands and acknowledges that the execution of the GxP Platform Customer Agreement is a prerequisite of Customer’s access to the Egnyte Platform GxP Service.
Services Access and Usage.
1. Provision of the Services. Subject to all the terms of this Agreement, Egnyte will provide the Services for access by Customers for their own use. Egnyte periodically updates the Services to: (i) diagnose and correct material defects; (ii) fix bugs and make other corrections; and (iii) implement new functionality or modules as necessary to maintain the Services.
2. Access to Services through Clients. Egnyte provides its Services in a hosted, cloud-based format. Egnyte makes the Clients available to MSP solely as an ancillary tool for accessing the Services. MSP acknowledges that, from time to time, Egnyte may issue updates to the Clients (for example, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In that event, in order for MSP to best deploy the Services for its Customers, either MSP (or Customers) will be offered the ability to upgrade the version of Clients that are currently running, or they will be automatically upgraded by Egnyte.
3. MSP Internal Use of the Services. Subject to all the terms of this Agreement, Egnyte will make available to MSP a non-sublicensable, non-transferable, non-exclusive instance of the Services at the discounted pricing specified in the Pricing Schedule. Use of such instance is limited to MSP’s nonproductive use by up to the number of Users agreed upon by Egnyte and for which MSP has paid applicable fees, and for the sole purpose of marketing and demonstrating the Services to Customer prospects and performing its obligations of Support as specified in this Agreement.
Restrictions. MSP is prohibited from copying or otherwise duplicating any portion of the Services. MSP agrees not to directly or indirectly (i) reverse engineer, decompile, or disassemble the Services in whole or in part, or otherwise reconstruct or attempt to discover any source code related to the Services or otherwise attempt to derive source code or object code or the underlying ideas, algorithms, structure or organization of the Services or Clients, except and only to the extent that such activity cannot be restricted under applicable law, (ii) translate or modify the Services in any way or create derivative works of the Services, (iii) use the Services on a service bureau, application service provider, or time-sharing basis, (iv) disrupt the Services or gain unauthorized access to any portion of the Services, (v) use the Services to violate any law or rights of any third party or commit any tortious act, (vi) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Clients or (vii) use the Services to transmit or store any virus or other malicious code, or obscene or profane materials. Furthermore, MSP agrees not to attempt any of the foregoing or assist any other person or entity to perform the foregoing. MSP will notify Egnyte in writing immediately in the event MSP becomes aware of any violation of these restrictions.
Ownership. Notwithstanding anything else in this Agreement, Egnyte and its licensors retain all title to, and, except as expressly and unambiguously licensed herein, all rights to the Services and Clients, Documentation all related materials and any derivative works thereof created by or for MSP in performing hereunder and all intellectual property rights pertaining thereto.

4. Orders and Fees.

Orders. MSP will issue initial and any follow-up orders for the Services in accordance with the Order Forms. The initial order shall set a baseline commitment to be upheld by MSP throughout at least the Initial Subscription Term.
MSP Fees and Additional Orders. The fees that MSP commits to paying Egnyte for the Services shall be calculated in accordance with the Pricing Schedule or relevant Order Form. Additional Services purchased by MSP hereunder shall be added to the amount of previously purchased to form a new baseline Services commitment that will be in force throughout the then current Subscription Term (that is, an Initial Subscription Term or Renewal Subscription Term). Monthly fees to be charged to MSP shall be adjusted accordingly to account for the additional fees generated as of the date of purchase on a pro-rata basis. For purpose of clarification, once a new baseline of Services usage is established, MSP shall not be entitled to adjust the baseline downward during the then current Subscription Term without Egnyte’s prior written approval (which is subject to Egnyte’s sole discretion). Egnyte will charge MSP the increased fees in the month following the month during which an increase in Services usage occurred, with the charge to be paid in accordance with the payment terms of this Agreement.
Taxes. MSP will be responsible for any federal, state, county, local or governmental taxes, duties, excise taxes, now or hereafter applied on the production, storage, sale, transportation, import, export, or use of the Services including sales tax, value added tax or similar tax. Any taxes imposed by federal, state or any municipal government or any amount in lieu thereof, including interest and penalties thereon, paid or payable at any time by Egnyte in connection with Egnyte’s provision of Services to MSP or its Customers, exclusive of taxes based on Egnyte’s income, will be borne or reimbursed to Egnyte by MSP.
Price Changes. Egnyte has the right, in its sole discretion, to alter prices for any subsequent Renewal Subscription Term, with advance written notice of thirty days to MSP (which includes updating the Pricing Schedule).

5. Service, Training and Support Obligations.

Uptime of the Services. Egnyte’s goal is to maintain 99.9% uptime of the Services. In case of any urgent patch, Egnyte endeavors to provide advance notifications to MSP and Customers through the Services subscription helpdesk feature. Notwithstanding the foregoing, Egnyte reserves the right to suspend access to the Services: (i) by MSP and any Customer for scheduled or emergency maintenance, or (ii) by any Customer as a result of its breach (or good faith suspicion of a breach) of its obligations regarding use of the Services.
Training. Egnyte will make training available to MSP at Egnyte’s sole discretion.
Obligations regarding Support for the Services.
1. Support to Customers. During the Subscription Term, MSP will provide Level 1 MSP Support to Customers of the Services. Level 1 MSP Support shall include initial Customer contact only with MSP, and MSP’s good faith attempt to resolve issues that are within the knowledgebase of MSP, per the training provided by Egnyte. MSP will not utilize any personnel to provide MSP Support unless such personnel have been authorized by Egnyte and are currently trained. In the event that Egnyte, in its reasonable discretion, requests that MSP remove specific personnel from performing MSP Support, MSP will promptly remove such personnel and replace the personnel with individuals who have been authorized and received the training necessary to competently perform the MSP Support. MSP will appoint MSP personnel trained as subject matter experts with respect to the Services to be the liaisons for all communications between MSP and Egnyte, including to coordinate requests from MSP to Egnyte for Egnyte Support. MSP will identify each such individual to Egnyte in writing. When MSP changes these individuals, MSP will provide Egnyte with written notice of those changes.
2. Support to MSP. During the Subscription Term, Egnyte will provide MSP with Egnyte Support for the Services in a timely and professional manner.
3. GxP Platform Services Support. In addition to Egnyte Support, Egnyte agrees to provide reasonable support directly to MSP’s Customers who have purchased subscriptions to the Egnyte GxP Platform Service in furtherance of assisting such Customers in their efforts at maintaining GxP regulatory compliance. In particular, Egnyte will attempt to assist Customers requesting Egnyte’s input regarding U.S. FDA documentation requests, provide Customers with GxP related release notes in advance of Egnyte GxP Platform Service updates, and jointly review with Customers Egnyte’s GxP related standard operating procedures. Egnyte reserves the right in its sole discretion to set limits on the time and resources to be expended providing a Customer with GxP related support, and may precondition the performance of excess support on payment of fees by Customer to Egnyte.

6. Additional MSP Obligations.

Marketing and Promotion of the Services. MSP will, at its own expense, use commercially reasonable efforts to market and promote the Services to Customer prospects, promptly respond to inquiries from Customer prospects, and conduct its business in a manner that reflects favorably on the Services and the good name, goodwill and reputation of Egnyte.
Feedback. MSP agrees to use reasonable commercial efforts to keep Egnyte informed of any problems encountered with the Services and any resolutions arrived at for those problems, and to communicate promptly to Egnyte any and all modifications, design changes or improvements of the Services suggested by any Customer, employee or agent (collectively “Feedback”). MSP further agrees that Egnyte is hereby assigned any and all right, title, and interest in and to any such Feedback, without the payment of any additional consideration either to MSP, or its employees, agents or Customers.
GxP Platform Service Obligations. MSP will ensure that any and all necessary permissions are secured to enable Egnyte to access, copy and/or use Content only 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 MSP’s signature below confirms that Users’ consent has been secured). MSP agrees to follow Customer’s standard operating procedures that dictate User access to Customer Content, and in this regard, MSP will enable such Customer-identified Users access to GxP (i.e. regulated) Content and any associated Customer domain information without delay.

Furthermore, the parties hereto agree to enter into a Statement of Work in relation to each Egnyte GxP Platform Service Customer – on terms to be agreed upon – under which Egnyte will perform “validation services” and create applicable GxP related documentation. Pricing for such professional services will be scoped by Egnyte’s professional services team on a case-by-case basis, and will be based on Egnyte’s standard rates. The performance of validation services and creation of related documentation by Egnyte is a condition precedent to the delivery of a compliant Egnyte GxP Platform Service to Customers, and MSP acknowledges that its failure to secure such Egnyte deliverables via a signed SOW shall be at MSP’s sole risk and liability vis-à-vis both Customers and regulatory authorities. The above in no manner is intended to exempt Egnyte from properly performing once a validly executed SOW is entered into by the parties.

Egnyte Archive Service. The following usage terms shall apply to the Egnyte Archive Service:
1. The Egnyte Archive Service and its related storage will be accessed and utilized through an Archive Domain (one Archive Domain per Customer). Up to 10 unique Power Users of each Archive Domain may access it, provided those Power User subscriptions have already been purchased by MSP from Egnyte under the Agreement. The Archive Domain is not to be utilized as an active domain, rather only as an archive ancillary to the active domain(s) for housing low-use files and folders. As such, accessing (i.e. downloads) of Content from the Archive Domain by MSP, Customer and/or its Users is limited to 5% of the total storage in use on the last day of each month for the Archive Domain (the "Download Limit").
2. Should MSP, Customer and/or its Users, in the aggregate, exceed the Download Limit in any month during the Subscription Term, the fee for that month shall be increased by an amount equal to $120 per TB above the Download Limit for that month. Egnyte is entitled charge MSP, and MSP shall pay Egnyte, the additional fees as from the date on which the excess to the Download Limit occurred, with payment due in accordance with MSP’s normal payment terms.
3. For purpose of clarification, “accessing” refers to the download centric activities set forth in Egnyte’s Archive Service generated audit report, and includes downloads, downloads via link, preview and preview via link.

Methods of Content access by MSP, Customer and/or its Users that count toward the Download Limit include, but are not limited to, the following:

Web UI
Shared file and folder links
Desktop App
Desktop Sync
WebEdit
WebDAV
Mobile App
Storage Sync
Turbo
FTP/SFTP
Microsoft Office Add-In
Public API
Salesforce Integration

In no event shall any of the following operational activities be counted against the accessing limit:

the return of data back to the primary Domain from the Archive Domain
the removal of data from the Archive Domain on termination of the Egnyte Archive Service
uploading of data into the Archive Domain from the primary Domain

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.
Warranty by Egnyte to Customers. MSP acknowledges that any warranty provided by Egnyte is to Customers (as specified in the Customer Agreement), and not to MSP. Egnyte will issue to MSP a credit equal to a maximum of the price paid by MSP to Egnyte for any Service terminated properly by a Customer as a result of Egnyte’s material failure to provide the Services that is not remedied within the time allotted to Egnyte under the Customer Agreement; provided, however, that such credit will not exceed the credit issued by MSP to the Customer and MSP will provide Egnyte with sufficient documentation to support MSP’s request for such credit for a Customer.
Warranty by MSP. MSP represents and warrants that it will make no additional or different warranty, guarantee, or representation, whether written or oral, on Egnyte’s behalf, beyond those warranties provided for by Egnyte directly to the Customer in the Customer Agreement effective between the relevant Customer and Egnyte; and should MSP make any such warranty/guarantee/representation, it shall be solely responsible therefor.
Disclaimer of Warranties. EGNYTE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE WHATSOEVER TO MSP WITH RESPECT TO EGNYTE OR ITS PRODUCTS OR SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SPECIFIED HEREIN, EGNYTE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE.
Compliance with Laws. MSP will perform its obligations under this Agreement in strict compliance with all applicable laws. Egnyte will not be responsible for monitoring MSP’s or Customers’ compliance with any applicable laws.
Third Party Supplied Storage. As between Egnyte and MSP, MSP is solely responsible for ensuring that storage independently secured by Customer (or by MSP on behalf of Customer) conforms with Customer’s requirements, including those pertaining to availability, durability, security, and costs associated with such storage. MSP 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 MSP or Customer for any failures of the third party storage provider or costs imposed on Customer by the provider.

8. Confidential Information.

Definition of Confidential Information. “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances, and includes all non-public information of the disclosing party (the “Discloser”) in any verbal, recorded, written or other form, including but not limited to the existence and content of the discussions between the parties and this Agreement; information concerning the products, pricing, business, processes, procedures, and technology of the Discloser (including but not limited to customer records and lists of customers or suppliers); and any software, documentation or data of the Discloser. “Confidential Information” does not include information which the receiving party (the “Recipient”) can establish (i) was already in the Recipient’s possession at the time of disclosure by the Discloser; (ii) has become publicly available without any improper act or omission of the Recipient; (iii) was disclosed to the Recipient by a third party having legitimate possession of such information and having no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the Recipient without use of the Confidential Information.
Obligations. Each party will: (i) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (ii) not disclose the Confidential Information, except to employees, contractors, agents and professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. Each party (and any employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its employees and agents in violation of this Section.
Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (i) uses commercially reasonable efforts to notify the other party; and (ii) gives the other party the chance to challenge the disclosure.

9. Indemnity.

By Egnyte. Egnyte will defend, indemnify and hold MSP harmless from all losses, damages and costs (including reasonable attorney’s fees) incurred in connection with claims, demands, suits, or proceedings (collectively, “Claims”) made or brought by a third party against MSP arising out of (A) such third party’s allegation that the use of the Services as contemplated hereunder, infringes the intellectual property rights of such third party, or (B) Egnyte’s grossly negligent acts or willful misconduct in providing the Services under this Agreement.
By MSP. Except to the extent covered by Egnyte’s obligations of indemnification under Section 9.a, MSP will defend, indemnify and hold Egnyte harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought by a third party against Egnyte arising out of (A) MSP’s breach of this Agreement; (B) any services provided by MSP or MSP Support; or (C) MSP’s actions that directly or indirectly cause the loss or disclosure of any Customer Confidential Information (including without limitation by theft or interception).
Conditions to Indemnification. The obligations to indemnify under this Section 9 are contingent on the party who has the right to be indemnified (the “indemnified party”) (i) promptly notifying the party providing the indemnification (the “indemnifying party”) in writing of the existence of any such action; (ii) granting the indemnifying party sole authority and control for the defense or settlement of such action; and (iii) providing the indemnifying party with all reasonable assistance for the defense or settlement of such action. The indemnified party, at its own expense, may participate in the defense of any such action. Notwithstanding the foregoing, the indemnified party may not obligate the indemnifying party to pay any amount in a settlement agreement without the indemnifying party’s written permission, which will not be unreasonably withheld.

10. Limited Liability.

Limited Liability. Neither MSP’s nor Egnyte’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) will exceed the greater of $100,000.00 or the cumulative fees paid by MSP under this Agreement during the twelve 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 total amount paid by MSP hereunder. The foregoing disclaimer will not apply to either party’s indemnification obligation or to the extent prohibited by applicable law.
Exclusion of Consequential and Related Damages. In no event will 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 will not apply to either party’s indemnification obligation or to the extent prohibited by applicable law.
The foregoing limitations are not intended to excuse MSP’s payment obligations under this Agreement.

11. Term and Termination.

Term. Unless terminated earlier as provided herein, the term of this Agreement will commence on the Effective Date and continue for a period of one year thereafter (the “Initial Subscription Term”). This Agreement will automatically renew for subsequent one year periods (each a “Renewal Subscription Term” and together with the Initial Subscription Term, referred to as the “Subscription Term”) unless either party provides the other party with notice of its intent not to renew at least 30 days prior to the expiration of the existing Subscription Term.
Termination for Failure to Purchase. Egnyte may provide immediate written notice of termination of the Agreement and suspension of MSP’s access to the Portal and MSP program in the event that MSP fails to submit a purchase order by the end of the first 30 days of the Agreement; such purchase order to be in accordance with the form of order provided by Egnyte and covering Services for at least the remaining 11 months of the Initial Subscription Term.
Termination for Breach. Notwithstanding anything to the contrary elsewhere in the Agreement, either party may suspend performance or terminate this Agreement if the other party is in material breach of the Agreement and fails to cure that breach within fifteen days after receipt of written notice.
Effect of Termination.
1. Generally. Upon any termination or expiration of this Agreement: (A) all rights and licenses granted by one party to the other will immediately cease; and (B) all payments owed by MSP to Egnyte become immediately due and payable.
2. Customer Retention. Upon any expiration or termination of this Agreement, (A) MSP may offer the affected Customers the option to migrate to a direct relationship with Egnyte or with another MSP, or to a similar service provided by a third party or by MSP, and (B) Egnyte may offer the affected Customers the option to migrate to a relationship either directly with Egnyte or with another MSP.
3. Survival. The terms of any Sections that by their nature are intended to extend beyond termination of this Agreement will survive expiration or termination of this Agreement for any reason.

12. General.

Governing Law and Legal Actions. This Agreement will be governed by and construed under the laws of the State of California and the United States without regard to conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Unless otherwise elected by Egnyte for a particular instance in its sole discretion and in accordance with applicable law, the sole jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Santa Clara County, California. Both parties consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by applicable state or U.S. federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
Assignment. This Agreement is not assignable, transferable or sub-licensable by MSP, even by operation of law, except with Egnyte’s prior written consent. Any assignment in violation of this provision is void and without effect.
Notices. Except as otherwise expressly stated in this Agreement, all notices required to be given under this Agreement will be given in writing. Notices will be sent to the recipient party's address specified in this Agreement (or as otherwise changed in writing) by certified or registered mail, overnight carrier or via email to an authorized representative of the recipient. Notices will be deemed given on the date of delivery of the notice.
MSP Business Conduct Commitment. MSP shall conduct its business activities under this Agreement at all times in accordance with the principles set forth in Egnyte’s Business Conduct and Ethics Policy (https://www.egnyte.com/business-conduct-and-ethics), including without limitation the anti-bribery and forbidden transaction provision. In particular and 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. The parties agree at all times to refrain from engaging with potential Customers in countries that are banned under any applicable export control laws and regulations.
Publicity. Each party may use the other party’s trade/service marks and logos only as expressly permitted in writing by the other party and only in furtherance of performance under this Agreement. Any such use will inure to the benefit of the party owning the trade/service marks and logos. A party may revoke the other party’s right of usage upon reasonable prior written notice. Neither party will attempt to register any trademarks, service marks or domain names that are confusingly similar to those of the other party, and neither party will issue a press release in relation to this Agreement without the other party’s prior written approval.
Entire Agreement. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Egnyte may update the terms of this Agreement from time to time, provided that such modification shall not take effect with respect to MSP until the next renewal Subscription Term.