(Last revision – May 1, 2018)
This Terms of Service Agreement (“Terms”) are between you
(“you” or “Customer”) and Egnyte, Inc. ("Egnyte,“ "we,” "us,” or
"our”). Please read them carefully because together with your order of
Egnyte Services, these Terms form an agreement between you and Egnyte
(“Agreement”). These Terms govern your initial purchase as well as any
future purchases made by you that reference these Terms. These Terms
apply whether your purchases are made directly from Egnyte or through
Egnyte’s authorized resellers (each, a “Reseller”).
By clicking on the “I agree” (or a similar) button that
is presented to you at the time of your order, or by using, registering
for, or accessing the Services described herein, you indicate that you
have the power to form a contract with Egnyte and are agreeing to be
bound by these Terms. If you are using the Services on behalf of an
organization, unless that organization has a separate paid contract in
effect with us, you are agreeing to these Terms for that organization,
and representing to Egnyte that you have the authority to bind that
organization to these Terms (in which event, “you” and “you” will refer
to the organization). If you are using the Services on behalf of an
organization that has a separate paid contract in effect with us, the
terms of that contract will govern your use. Note that our Services are
not intended for and may not be used by people under the age of 13. By
using our Services, you are representing to us that you are over 13
years of age.
These Terms may be modified from time to time, though any such modifications shall only be applicable at the date of renewal of your Agreement with Egnyte. The date of the most recent revisions will appear on this page, so please check back periodically. Your use of or continued access to the Services after renewal constitutes your acceptance of those changes, whether or not you have reviewed them. If you do not agree to changes to the Terms, you must terminate the Agreement in accordance with these Terms effective as of the end of your Subscription Term.
“Account” means an account created by you or on your behalf 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
“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.
“Subscription Term” means the period of Services as
identified on the Order Form or identified by Customer during Egnyte’s
online Services registration process.
“User” means an individual authorized by Customer to be a
Power User or a Business Partner User of the Egnyte Connect Service, as
- “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.
- 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. To provide availability and redundancy of Customer Content, Egnyte maintains copies of the Content across two data centers at all times.
3. Your 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. You acknowledge that once you have registered with us, we may send you communications or data regarding the Services using electronic means. These may include, but are not limited to (i) notices about your use 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 us to provide. We give you the opportunity to opt-out of receiving certain of these communications from us by following the opt-out instructions provided in the message. However, even if you opt-out, you understand that we may continue to provide you with required information by email at the address you specified when you signed up for the Services or via access to a website that we identify. Notices we email to you will be deemed given and received when the email is sent. If you provide Egnyte with legal notices, you must transmit it to us via email to legal@Egnyte.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Egnyte, Inc., Attn: Legal Department, 1350 W. Middlefield Road, Mountain View, California 94043. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
- 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 you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. You acknowledge that Egnyte is not responsible for such content or services. We may also provide some content to you as part of the Services. However, Egnyte is neither an agent of any transacting party nor a direct party in any such transaction. Any of those activities, and any terms associated with those activities, are solely between you and the applicable third-party.
4. Fees and Payment.
- Purchases through Resellers. If you purchase Services
through a Reseller, i. the scope of Services will be as stated in the
Order Form placed with Egnyte on your behalf by the Reseller, ii.
Reseller has sole responsibility for the accuracy of the Order Form,
iii. you owe payment to the Reseller as agreed between you and the
Reseller, and iv. the payment terms described in this Section will not
apply to you. You acknowledge, however, that we may terminate your
rights to use the Services and discontinue Services if we do not receive
our corresponding payment from the Reseller. A Reseller is not
authorized to make any promises or commitments on Egnyte’s behalf, and
Egnyte is not bound by any obligations to you other than those specified
in these Terms.
- Fees. You agree to pay, using a valid credit card (or
other form of payment which we may accept from time to time), the
charges and fees (such as recurring monthly or annual fees) set forth in
the applicable Order Form (if any) or on our website (collectively,
“Fees”) and any applicable Taxes (as defined below). You will pay Fees
in the currency we quoted for your account (and we reserve the right to
change the quoted currency at any time). We will automatically charge
your credit card or invoice and collect payment in an alternative method
at the start of the billing period and at the start of each renewal
period. Except as specifically set forth in this Section, the Services
are prepaid for the period selected (monthly, annually or otherwise) and are non-refundable. This includes Accounts that are renewed.
- Fees for Upgrade. If you upgrade or expand consumption
of the Services (for example, to obtain additional storage, User
access, additional CRUS, features or functionality to the Services)
(collectively referred to as a “Service Upgrade”), additional fees will
be due at Egnyte’s then-current pricing. Those fees will be immediately
charged and/or invoiced as noted in Section 4.b above and will be due
and payable for the entire month in which the Service Upgrade occurred
and any remaining period under the then current Subscription Term (if
longer than monthly, and with the Services Upgrades to be coterminous
with the end of such Subscription Term).
- Fee Increases. We will notify you 45 days in advance,
either through a posting on our website or by email to the address you
have most recently provided to us, if we increase fees or institute new
charges or fees. Any new charges or increase in fees will take effect at
the beginning of the next renewal Subscription Term. For example, if
you pay monthly, your use of the Services will be charged at the new
price when the Services are renewed in the month that follows the last
day of the above notice period. If you do not agree to these changes,
you must cancel and stop using the Services in accordance with the
termination provisions of the Agreement.
- Invoicing and Payment Terms. You agree to keep all
information in your billing account current. In the event that we
invoice you, then all fees will be due and payable upon receipt, unless
otherwise indicated on your Order Form. We reserve the right to charge,
and you agree to pay, a late fee on past due amounts. The late fee will
be equal to the lesser of 1.5% of the unpaid amount each month or the
maximum amount allowed by applicable law. We may use a third party to
collect past due amounts. You must pay for all reasonable costs we incur
to collect any past due amounts, including reasonable attorneys' fees
and other legal fees and costs. In addition, we may suspend your access
to the Services or cancel the Services if your account is past due five
days after Egnyte provides you with written notice of a past due
- Taxes. Fees are exclusive of Taxes and you agree to
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. You will promptly provide Egnyte with legally
sufficient tax exemption certificates for each taxing jurisdiction for
which you claim exemption. In the event any government or authority
imposes withholding taxes on Egnyte’s fees, you shall increase the
amount of fees payable to Egnyte in a manner such that Egnyte receives
the full amount of committed fees.
5. 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 the Agreement shall
- 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, and during the Subscription Term,
Egnyte hereby provides Customer 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
- 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.
- 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 Clients), 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 6.
- 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.d below.
- Ownership by Customer. As between Customer and
Egnyte, Customer or its licensors own all right, title and interest in
and to the Content provided, transmitted or processed through, or stored
in, the Services. Customer hereby grants Egnyte the right to transmit,
use, modify, adapt, reproduce, display or disclose the Content solely
(i) to provide the Services to Customer or any User, (ii) to comply with
any request of a governmental or regulatory body (including subpoenas
or court orders) or as otherwise required by law, (iii) for statistical
use (provided that such data is not personally identifiable), and (iv)
as necessary to monitor and improve the Services and corresponding
support. Customer represents and warrants that Customer has all rights
in the Content necessary to grant these rights and use the Services, and
that the transmission, storage, retrieval, and processing of the
Content do not violate any law.
- Ownership by Egnyte. As between Egnyte and Customer,
Egnyte or its licensors own all right, title and interest in and to the
Services (including all hardware, Egnyte Clients and other items used to
provide the Services), including all intellectual property rights in
any of the foregoing. No title to or ownership of any proprietary rights
related to the foregoing is transferred to Customer or any User
pursuant to these Terms or any transaction contemplated by these Terms.
Egnyte reserves all rights not explicitly granted to Customer. Egnyte is
free to use any comments, suggestions, recommendations, and other
feedback you provide with respect to the Services for any purpose,
8. Warranty and Disclaimers of Warranty.
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. EXCEPT FOR THE FOREGOING WARRANTY
AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EGNYTE MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE. EGNYTE SPECIFICALLY DISCLAIMS, WITHOUT
LIMITATION, ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT THE CONTENT WILL BE SECURE BEYOND ANY POSSIBLE
THREAT, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY
WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING
EXCLUSIONS. IN SUCH AN EVENT, THESE EXCLUSIONS WILL NOT APPLY SOLELY TO
THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Indemnification by Egnyte. Without derogating from and subject to any of the other Terms, 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 you the right to continue using the Services under the terms of the 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 your access to the infringing Services and refund to you 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) your use of the Services other than in accordance with the Agreement. This Section 9.a states your exclusive remedy for any intellectual property claim against Egnyte regarding the Services.
- Indemnification by Customer. You agree to indemnify Egnyte, its officers, directors, employees, and agents, against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Services in breach of these Terms: (a) infringes any patent, trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Egnyte's actions) or (b) violates applicable law or these Terms. Egnyte will provide you with notification of any such claim or demand that is subject to your indemnification obligation.
- 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.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
FOLLOWING APPLIES: (a) IN NO EVENT WILL THE LIABILITY OF EGNYTE, ITS
AFFILIATES, OFFICERS, EMPLOYEES, OR AGENTS FOR ANY AND ALL CLAIMS
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS UNDER IT, INCLUDING THE
SERVICES, EXCEED THE AMOUNT OF FEES THAT YOU PAID US DURING THE PREVIOUS
TWELVE MONTH PERIOD, AND (b) IN NO EVENT WILL EGNYTE, ITS AFFILIATES,
OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT)
HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT
LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF
EGNYTE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME
STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR
LIMITATIONS MAY NOT APPLY TO YOU.
11. Term and Termination.
- Term. The Agreement will commence on the date that the Order Form is last signed by a party or the date of Customer’s online registration for the Services, and will continue for the Subscription Term designated in the Order Form or in the online registration process. Unless a party provides the other party with at least 30 days’ written notice of termination prior to the end of the Subscription Term (with termination effective at the end of the Subscription Term), the Agreement will automatically renew for the same Subscription Term as had been in effect prior to the renewal (and, in the case of support, at the same support level if that level is still offered by Egnyte) and Egnyte will charge your payment information on file with us commencing on the first day of the renewal Subscription Term. For a Customer initiated termination in accordance with the above, Customer shall follow the termination process set forth in the Account.
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.
- Suspension or 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 10 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.
Additionally, Egnyte reserves the right to temporarily suspend or terminate your access to the Services for: (i) the use of the Services in a manner that may cause Egnyte to have legal liability or disrupt others' use of the Services; (ii) the detection of any malicious code, virus or other harmful code in your Account; or (iii) your use of excessive storage capacity or bandwidth. If circumstances allow, we will use commercially reasonable efforts to notify you of the suspension or termination through the Services. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to the Content that is stored with the Services.
- Termination for Lack of Activity. In addition to our other rights of termination, if your Account is not currently subject to a paid subscription plan with us, we may terminate your Account if: (i) you do not engage in any activity in the Account within 30 days after registering for the Services, (ii) your trial has concluded and you do not convert to a paid Services plan, or (iii) you do not engage in any activity in an Account for 120 consecutive days. In the event of such termination, any or all of your Content may be lost.
- Post-Termination Obligations. Within ninety days of termination of the Agreement for any reason, Egnyte will destroy all copies of Content that remain within Egnyte’s Services infrastructure.
- Survival. The provisions of these Terms that by their nature are intended to extend beyond termination will survive termination of this Agreement for any reason.
12. General Provisions.
- Governing Law and Jurisdiction. The 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. Any dispute between the parties will be brought exclusively in a court in Santa Clara County and each party irrevocably waives any claim that such court does not have personal jurisdiction over the party.
- Government Users. If you are a U.S. government entity, you acknowledge that any Egnyte Clients and Documentation are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
- Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. 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. You may not assign these Terms or your rights and obligations under them, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid.
- 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 the 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.
- DMCA. We respect the intellectual property of others, and reserve the right to delete or disable Content that appears to violate these terms or applicable law. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that Content infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed or access to it blocked. Federal law requires that your notification include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The notification must be sent to:
Attn: Legal Department
1350 W. Middlefield Road.
Mountain View, California 94043
We provide the above contact information for purposes of the DMCA only and reserve the right to respond only to correspondence that is relevant to this purpose.