(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”). Any individual accepting these terms and conditions on behalf of an organization represents that such individual has the authority to bind the organization to this Agreement.
“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 written materials describing the functionality and operation of the Services that Egnyte provides or makes generally available to customers, including material located at https://helpdesk.egnyte.com/hc/en-us. “Egnyte Platform” means Egnyte’s hosted content services platform that enables the processing, governance, and management of content.
“Services” means the services enabled by Egnyte for the trial in connection with this Agreement (which may be limited in Egnyte’s sole discretion).
“Trial Period” means the period set forth in Section 3.a. below.
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.
Egnyte shall own all right, title, and interest, including without limitation all intellectual property rights, in and to the Services and Documentation, 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 own all right, title, and interest, including without limitation all intellectual property rights, in and to Trial Customer content uploaded to the Services.
From time to time, Trial Customer may provide feedback to Egnyte concerning the functionality, performance, and reliability of the Services, 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 that 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.
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 to 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 at the following link: https://www.egnyte.com/data-protection-addendum.
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 OF THE SERVICES 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, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT.
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 UNDER THIS AGREEMENT; OR (II) IF NO AMOUNTS ARE PAID BY TRIAL CUSTOMER TO EGNYTE HEREUNDER, ONE THOUSAND DOLLARS ($1,000.00). TRIAL CUSTOMER ACKNOWLEDGES, AGREES, 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.
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.
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, or 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, such provision shall be interpreted in a manner so as to be enforceable to the maximum extent permissible under law, and 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 a Trial Customer’s purchase order shall be void and of no effect, even if Egnyte signs off on such order. Amendments or changes to this Agreement must be in a mutually executed writing 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 or cause beyond its reasonable control. The parties do not intend that any term of this Agreement shall 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, receipt shall be deemed upon rejection).
For purpose of clarification, if Trial Customer is also a present customer of Egnyte under a non-trial Egnyte services agreement, in no manner shall this Agreement impact such 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/10-2022), and such terms and conditions shall supersede and replace the terms and conditions of this Agreement. Notwithstanding the foregoing, if Trial Customer enters 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.