Trial Terms and Conditions
(Last revision – January 31, 2020)
Trial Customer’s acceptance of these terms and conditions forms a binding legal agreement (“Agreement”) between Trial Customer and Egnyte, Inc. (“Egnyte”).
1. DEFINED TERMS.
- “Authorized User” means those employees and individual contractors of Trial Customer who are granted a right by Trial Customer to access and use the Services, subject to any limitations on such access/usage imposed by Egnyte during the Trial Period. For example, Egnyte, at its sole discretion, is entitled to limit the number of Authorized Users during the Trial Period.
- “Documentation” means the written materials describing the functionality, operation, and use of the Services that Egnyte provides or makes generally available to customers, including material located athttps://helpdesk.egnyte.com/hc/en-us.
- “Egnyte Platform” means 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 Customer’s Order Form.
- “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 Protect Service” is a content governance service that monitors Egnyte-supported content repositories to identify potential corporate-wide access control problems within such repositories.
- “Services” means collectively a. the services enabled by Egnyte for the trial in connection with this Agreement and b. associated Documentation.
- “Trial Period” means the period set forth in Section 3.i. below.
2. PURPOSE OF TRIAL.
Subject to the terms and conditions of this Agreement, Trial Customer is entitled to utilize the Services (pursuant to Section 4 below) for Trial Customer’s limited internal evaluation purposes (“Purpose”). No Services fees shall be charged during the Trial Period unless mutually agreed in writing. For clarity, the Services may not be used by people under the age of 13.
3. TRIAL PERIOD.
- The term of this Agreement will begin on Trial Customer’s agreement to these terms and conditions and will expire at the conclusion of the agreed or default trial period, unless earlier terminated in accordance with this Section 3 or extended upon written agreement of the parties. Either party may terminate this Agreement for convenience upon written notice to the other party specifying the date of such termination. Following the conclusion of the Trial Period or any earlier termination of this Agreement, Egnyte shall delete any Trial Customer data remaining in its Services in accordance with Egnyte’s data purge policy (i.e. typically following a ninety day period).
- Termination of this Agreement shall automatically terminate the Trial Period. Upon the expiration or termination of this Agreement, the rights granted in Section 4 will immediately terminate, and Trial Customer will discontinue all use of the Services. Sections 3.ii., 5, 6, 7, 8, 9, 10, 11, 12, and 13 will survive termination or expiration of this Agreement.
- Trial Customer will advise its Authorized Users that they must comply with the terms and conditions of this Agreement. Trial Customer is responsible for its Authorized Users’ compliance with this Agreement, and any breach of this Agreement by any Authorized User accessing the Services (or the enablement of unauthorized users by Trial Customer) shall be deemed to be a breach by Trial Customer.
- Content. Customer (i) is responsible for the accuracy and quality of the Content; (ii) will ensure that the Content and the usage thereof by Users 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 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), along with consent of Users for any communications integral to the Services. 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.
- Third Party Supplied Storage. Ensuring that storage independently secured by Customer conforms with Customer’s requirements, including those pertaining to availability, durability, security, and costs associated with such storage, is the sole responsibility of Customer. Customer acknowledges and accepts that associated costs to Customer can be impacted by the interaction between Egnyte’s Services and Customer-supplied storage. Egnyte disclaims any responsibility for such Customer storage requirements and shall not be liable to Customer for any failures of the third party storage provider or costs imposed on Customer by the provider.
- Passwords and Accounts. Without derogating from Egnyte’s confidentiality and security obligations hereunder, 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 login credentials. 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 Customer 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 such unauthorized use.
- Use Restrictions. Customer will comply with, and ensure its Users comply with, this Agreement. In addition, Customer will not: (i) use or allow use of the Services in any manner or for any purpose other than as expressly permitted by this Agreement, including, without limitation, allowing Users who should be classified as Power Users to use Standard User logins; (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 or allow use of the Egnyte Connect Service to send unsolicited or unauthorized junk mail, spam, chain letters, 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 or allow use of 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, through password mining or any other means, Egnyte’s other accounts, computer systems or networks not covered by this Agreement; (xii) access, use, or allow use of the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (xiii) use or allow use of the Services for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Egnyte’s prior written consent.
- Notices. Customer acknowledges that Egnyte may send it and its Users communications or data regarding the Services using electronic means. These may include, but are not limited to: (i) notices about usage of the Services, including notices concerning violations of use, (ii) updates to the Services, (iii) materials regarding Egnyte's products and services, and (iv) information the law requires Egnyte to provide. Egnyte provides Users the opportunity to opt-out of receiving certain of these communications by following the opt-out instructions provided in the message, and Administrators may block communications to Users via the Account. However, Egnyte may continue to provide necessary and/or required information by email or via access to a website that Egnyte identifies. Notices via email will be deemed given and received when the email is sent. Notices to Egnyte should be sent via email to firstname.lastname@example.org, 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 this Agreement.
- Third Party Services and Content. All transactions using the Services are between the transacting parties to this Agreement only. The Services may contain features and functionalities linking or providing Customer with certain functionality and access to third party content, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products, or services. Access to such third party content may be facilitated by Egnyte through its online app store. Customer acknowledges that Egnyte is not responsible for such third party content (including any terms and conditions or activities thereunder), and Egnyte is neither an agent of any third party nor a direct party in any such transaction; provided, however, that with regard to purchases of third party content made through the Egnyte app store, Egnyte may serve in a limited role as a billing agent with regard to particular transactions initiated by Customer.
4. RIGHT OF ACCESS AND USAGE.
- Subject to Trial Customer’s compliance with this Agreement, Egnyte grants to Trial Customer and its Authorized Users a nonexclusive, non-transferable, and limited right to access and use the Services solely for the Purpose and solely during the Trial Period. Trial Customer’s use of the Services is subject to the following conditions:
- Trial Customer shall be entitled to up to one terabyte of storage associated with the Services;
- Trial Customer will not copy, reverse engineer, decompile, or disassemble the Services, nor permit any third party to do so;
- Trial Customer will not sell, assign, license, lease, rent, loan, lend, transmit, network, or otherwise distribute, transfer or make available the Services in any manner to third parties (other than as allowable by the Services in the normal course, such as the sharing of files under the Egnyte Connect Service);
- Trial Customer will not adapt, modify, merge, revise, improve, translate, upgrade, or enhance the Services, and will not utilize its access rights to create works competitive to the Services;
- Trial Customer and/or its Authorized Users’ interactions with countries and/or persons that are banned under any applicable export control laws and regulations shall be at Customer’s sole risk and liability. 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 Trial Period: https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx. Further, Customer hereby takes notice of and will, to the extent applicable, comply with Egnyte’s Business Conduct and Ethics Policy, which can be found at the following link: https://www.egnyte.com/business-conduct-and-ethics; and
- Trial Customer will take all security measures sufficient to reasonably safeguard the Services from access by unauthorized third parties through Trial Customer or its Authorized Users’ log-in credentials or network.
- Subject to the terms and conditions of this Agreement, Trial Customer hereby grants to Egnyte a nonexclusive, non-transferable and limited right to access, copy and use Trial Customer’s content and content repository(ies) solely for providing the Services for the Purpose and solely during the Trial Period. Egnyte may periodically monitor Trial Customer’s use of the Services for reasonable purposes, such as to ensure that Trial Customer is complying with this Agreement. Notwithstanding any other provision hereof, Egnyte will not disclose Trial Customer content except as follows:
- to third parties upon the written request of Trial Customer,
- to comply with or enforce legal requirements; or
- to enforce this Agreement or any other valid agreement between Egnyte and Trial Customer.
- Trial Customer (i) is responsible for the accuracy and quality of its content; (ii) will ensure that the content and the usage thereof by Authorized Users 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 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 Authorized Users to process content in general and any personal data in particular (and Trial Customer’s acceptance of this Agreement confirms that Authorized Users’ consent has been secured), along with consent of Authorized Users for any communications integral to the Services. Absent a binding legal order, Egnyte does not access a Trial Customer’s account for the purpose of monitoring content transmitted through the Egnyte Connect Service.
Egnyte shall at all times solely and exclusively own all right, title, and interest, including without limitation all intellectual property rights, in and to the Services, including any improvements, modifications, and enhancements thereto. Except for those rights expressly granted in this Agreement to Trial Customer, no other rights are granted, either express or implied. Trial Customer shall at all times solely and exclusively own all right, title and interest, including without limitation all intellectual property rights, in and to Trial Customer content stored within the Services.
Trial Customer may provide feedback to Egnyte concerning the functionality, performance and reliability of the Services as reasonably requested by Egnyte from time to time including identifying potential errors and suggestions for improvements (“Feedback”). Trial Customer hereby assigns to Egnyte all right, title, and interest in and to the Feedback. Trial Customer acknowledges and agrees that Egnyte shall have the right to extract, compile, synthesize, and analyze any non-personally identifiable data transmitted by the Services or information resulting from Trial Customer’s use of the Services to the extent such data or information does not identify Trial Customer or its operations (“Anonymous Data”) and to use Anonymous Data for Egnyte’s business purposes, including without limitation for the purposes of developing, enhancing, and supporting Egnyte’s products and services.
7. CONFIDENTIALITY & SECURITY.
Each party will maintain the confidentiality of and not disclose to any third party and not use except in furtherance of the Purpose: (a) the terms of this Agreement, (b) all non-public information disclosed or made accessible by one party to the other under this Agreement, where such shall be deemed to include i. all information communicated to Trial Customer in respect of the Services and Egnyte’s business, sales and operations that could reasonably be expected to be confidential or that is expressly identified by Egnyte at the time of disclosure as being confidential and ii. all Trial Customer content accessible by Egnyte in the performance of the Services, and (c) all Service performance data and benchmark tests, and all other information obtained through evaluation or use of the Services. In some instances, Authorized Users may be asked to provide information including an email address in order obtain access to the Services. Such information will not be transmitted to or utilized by third parties except as necessary to achieve the Purpose. Additionally, Egnyte undertakes to secure Trial Customer data in accordance with the Information Security Procedures included within Egnyte’s Data Protection Addendum located at the following link: https://www.egnyte.com/data-protection-addendum/01-2020.
8. WARRANTY DISCLAIMER.
THE SERVICES ARE PROVIDED TO TRIAL CUSTOMER “AS IS”, AND TRIAL CUSTOMER’S USE OF THE SERVICES IS SOLELY AT TRIAL CUSTOMER’S OWN RISK. EGNYTE DOES NOT WARRANT THAT THE SERIVCES WILL MEET TRIAL CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE OR SECURE BEYOND ANY POSSIBLE THREAT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EGNYTE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, CONCERNING THE SERVICES, OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EGNYTE OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO TRIAL CUSTOMER FOR ANY LOSS OR DAMAGE FOR LOST PROFITS OR REVENUES OR LOST DATA OR SIMILAR ECONOMIC LOSS, REGARDLESS OF HOW SUCH LOSSES OR DAMAGES ARE CHARACTERIZED, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, INDIRECT OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR FOR ANY CLAIM MADE BY AN AUTHORIZED USER OR OTHER THIRD PARTY, EVEN IF EGNYTE HAS BEEN ADVISED OF SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EGNYTE’S TOTAL, AGGREGATE LIABILITY TO TRIAL CUSTOMER ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, WARRANTY, MISREPRESENTATION, AND OTHER CONTRACT OR TORT CLAIMS) EXCEED THE AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED BY TRIAL CUSTOMER UP TO EITHER (I) THE TOTAL AMOUNTS PAID BY TRIAL CUSTOMER TO EGNYTE HEREUNDER; OR (II) IF NO AMOUNTS ARE PAID BY TRIAL CUSTOMER TO EGNYTE HEREUNDER, ONE THOUSAND DOLLARS ($1,000.00). TRIAL CUSTOMER ACKNOWLEDGES AND WARRANTS THAT TRIAL CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SERVICES, AND FOR ANY RELIANCE THEREON, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW TRIAL CUSTOMER WAIVES ANY AND ALL CAUSES OF ACTION ARISING THEREFROM.
10. GOVERNING LAW.
This Agreement shall be governed in all respects by the laws of the State of California, without regard to its conflicts of law rules or principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Unless resolved amicably between the parties, any and all disputes, controversies, or differences which may arise between the parties, out of or in relation to or in connection with this Agreement, or the breach thereof, shall be brought exclusively before the state or federal courts for the County of Santa Clara, California.
11. TRIAL CUSTOMER ACKNOWLEDGMENT OF AUTHORIZATION.
Trial Customer acknowledges and agrees that any and all access, analysis and associated transmission of content made by the Services in furtherance of the Purpose shall be deemed authorized by Trial Customer under any International, Federal or State laws, rules and regulations that relate to, regulate, or impact the utilization of the Services in Trial Customer’s jurisdiction, each as may be amended from time to time.
Subject to Section 9 above, if either party brings legal action to enforce this Agreement, the prevailing party in such action shall be entitled to receive all costs and expenses, including but not limited to reasonable attorneys’, accountants’ and other experts’ fees and expenses, incurred by the prevailing party in investigating and prosecuting (or defending) such action, and in any appeal of any judgment thereon. Trial Customer may not assign, transfer or pledge this Agreement or the Services, directly or indirectly, by operation of law or otherwise, without the prior written consent of Egnyte. If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law; the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the parties’ complete agreement regarding the subject matter described herein, superseding any prior oral or written communications, representations or agreements, including any non-disclosure agreement (with the confidentiality provisions of this Agreement to govern any prior disclosures of confidential information). Any terms in Trial Customer’s purchase order shall be deemed to be void and of no effect, even if Egnyte signs off on such order. Amendments or changes to this Agreement must be in mutually executed writings to be effective. The parties are independent contractors for all purposes under this Agreement. Neither party shall be liable for any delay or failure due to force majeure and other causes beyond its reasonable control. The parties do not intend that any term of this Agreement be enforceable by any third party. Any notices or consents under this Agreement to either party must be in writing and personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to an official address of a party, and notices shall be deemed delivered when received (or if delivery is rejected by a party, then receipt shall be deemed upon such rejection).
13. SEPARATE PAID AGREEMENT.
For purpose of clarification, in the event that Trial Customer is also a present customer under an Egnyte non-trial services agreement, in no manner shall this Agreement impact the Egnyte non-trial services agreement. Should Trial Customer subsequently enter into a paid agreement with Egnyte for Egnyte products or services, the use of such products or services shall be governed by the terms and conditions included in Trial Customer’s written agreement with Egnyte, or if none is executed, by the terms and conditions located at the following link: https://www.egnyte.com/terms-and-conditions/01-2020, and such terms and conditions shall supersede and replace the terms and conditions of this Agreement. Notwithstanding the foregoing, if you enter into a paid subscription through or as an Egnyte channel partner, the applicable terms of your agreement under that relationship shall govern such subscription and shall supersede and replace this Agreement.