Terms and Conditions

(Last revision – January 31, 2020)

The below terms and conditions, together with an Order Form, represent a binding services agreement (the “Agreement”) between the customer named on the Order Form (“Customer”) and Egnyte, Inc., a Delaware corporation, located at 1350 W. Middlefield Road, Mountain View, California 94043 (“Egnyte”). Customer’s signature on the Order Form constitutes Customer’s acceptance of the Agreement as of the effective date of the Order Form (the “Effective Date”); provided however, that for click-through online purchases, the date of purchase shall constitute 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.

1. Definitions and Interpretation.

“Account” means an account or domain created by or on behalf of Customer 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 subscriptions, cancel subscriptions, 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.

“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.

“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 at https://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.

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

“Services” refers to the services ordered under Customer’s Order Form(s).

“User” means: i. an individual authorized by Customer to be a Power User or a Standard User of the Egnyte Connect Service, as follows:

  • “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 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.

and/or ii. 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 Protect Service, or Egnyte Platform. Those provisions are only binding and enforceable to the extent Customer 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. Availability and Use of the Services.

  1. Services.
    1. General: Egnyte will make the Services available to Customer during the Subscription Term of this Agreement for its business purposes solely through any Account registered to Customer and in accordance with the relevant Order Form. For clarity, the Services are not for resale.
    2. Services Configuration: Customer shall be responsible for configuring the Services per Customer requirements, subject to the functionalities or limitations of such Services.
  2. 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 (subject to the usage restrictions associated with Standard User subscriptions), 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 Egnyte Clients that are currently running, or they will be automatically upgraded by Egnyte. “Egnyte Clients” means the installations installed on Customer’s local server, desktop, mobile, or other device (for example, mobile apps, desktop apps, and group apps) that enable a User or Administrator to engage with the Services.
  3. Provision of Support for Services. Egnyte will provide support for the Services as described in the applicable Order Form (“Support”). Egnyte may update its Support from time to time on written notice (which may include posting the updated Support on Egnyte’s customer support website) as long as the new level of support is not materially less than that described in the applicable Order Form as of its effective date.
  4. Data Protection, Security Measures and Backup Procedures. Egnyte will comply with the data protection and information security procedures described in the Data Protection Addendum located at the following link: https://www.egnyte.com/data-protection-addendum/01-2020.html (the “DPA”). The DPA may be updated from time to time on written notice to reflect changes in applicable law or enhancements in the security and availability of the hardware and software cloud infrastructure used to provide the Services. On an annual basis and upon Customer’s written request, Egnyte will provide Customer with SSAE18-related reports from the third party data center providers utilized in the provision of Services to Customer. Customer acknowledges and agrees that all SSAE18-related reports constitute Confidential Information of Egnyte or its providers. To provide availability and redundancy of Customer Content processed through the Egnyte Connect Service, Egnyte maintains copies of the Content across two data centers at all times. Additional terms pertaining to Egnyte’s commitment to privacy can be found in its online Privacy Policy at the following link: https://www.egnyte.com/corp/privacy_policy.html.

3. Customer’s Responsibilities Relating to Use of the Services.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 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 this Agreement.
  6. 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. Fees and Payment.

  1. Fees and Fees for Services Upgrade. Customer will pay fees to Egnyte as set forth in the applicable Order Form. Except as otherwise stated in this Agreement, all fees are non-refundable. If Customer upgrades or expands consumption of Services (for example, to obtain additional storage or Content Under Protection [which are purchased on a per-domain basis], User access, or additional features and functionality) within a Subscription Term (a “Services Upgrade”), Customer agrees to pay for the Services Upgrade for the remainder of the Subscription Term at the pricing specified for ordering additional Services in the applicable Order Form (and if not specified, at Egnyte’s then-current list pricing). Any discount applied to Customer’s initial order of Services shall not apply to a Services Upgrade unless mutually agreed upon in writing between the parties. Fees for Services Upgrades will be paid in accordance with the payment terms then in effect.
  2. Price Increases. Egnyte reserves the right to increase pricing, provided that any increase in pricing for Services ordered under the applicable Order Form will take effect at the beginning of the next renewal Subscription Term applicable to Customer. For Agreements with an auto-renewal provision (other than a monthly click-through plan), Egnyte shall provide Customer with at least 45 days’ advance written notice (via email) of such prospective increase in pricing. Discounts will not renew during any renewal Subscription Term unless agreed to by the parties in writing, and removal of a discount shall not be considered an increase in pricing.
  3. Invoicing and Payment Terms. All fees will be due and payable within 30 days of receipt of invoice unless otherwise specified on the applicable Order Form or unless Customer is paying via credit card. Customer agrees to keep all information in Customer’s billing account current. Payment methods and billing account information may be changed by using the means provided by Egnyte, including via Egnyte’s website; however, such changes do not affect charges submitted to Customer’s billing account prior to the date on which the changes are processed and take effect. In the event Customer disputes any charged or invoiced fees, Customer will provide written notice of the disputed amount within the payment period and timely pay any undisputed portion of such charge or invoice. The parties agree to cooperate in good faith to resolve any disputed charge or invoice (or portion thereof). All amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without any deduction or withholding. At Egnyte’s discretion, past due amounts may accrue a late fee equal to 1.5% per month or the maximum amount allowed by applicable law, whichever is less. Customer will pay for all reasonable costs incurred by Egnyte in collecting past due amounts, including reasonable attorneys' fees and other legal fees and costs. In addition to its other rights and remedies, Egnyte may suspend Customer’s access to or cancel the Services if Customer’s account remains past due ten days after Egnyte provides Customer written notice of a past due amount.
  4. Taxes. Fees are exclusive of Taxes, and Customer shall pay or reimburse Egnyte for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use, 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. Customer will promptly provide Egnyte with legally sufficient tax exemption certificates for each taxing jurisdiction in which it claims exemption. In the event any government or authority imposes withholding taxes on Egnyte’s fees, Customer shall increase the amount of fees payable to Egnyte in a manner such that Egnyte receives the full amount of committed fees pursuant to the applicable Order Form.

5. Ownership.

  1. Ownership by Customer. As between Egnyte and Customer, Customer or its licensors own all right, title, and interest in and to the Content.
  2. Ownership by Egnyte. As between Egnyte and Customer, Egnyte or its licensors own all right, title, and interest in and to the Services, Egnyte Clients, and all hardware, software, and other items used to provide the Services. No title to or ownership of any proprietary rights related to the Services or Egnyte Clients is transferred to Customer pursuant to this Agreement or any transaction contemplated by this Agreement. Egnyte reserves all rights not explicitly granted to Customer under this Agreement. Egnyte is free to use any comments, suggestions, recommendations, improvements, and other feedback provided by Customer, an Administrator, or a User with respect to the Services for any purpose, without obligation.

6. Professional Services.

  1. 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 this Agreement shall apply.
  2. Deliverables, Ownership. 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 the 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. 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. For purposes hereof, “Deliverables” means the results of work performed by Egnyte in providing professional services to Customer. 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 the applicable 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 applicable SOW.
  3. Professional Services Warranty. With regard 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 the relevant 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.

7. Warranties, Representations, and Disclaimers.

  1. 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.
  2. Egnyte Warranties and Representations.
    1. 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, provided the functionality of the Services is not materially decreased during the then-current Subscription Term. Any such modifications can be accessed by Customer in the Documentation. In the event the Services are nonconforming, Egnyte will fix, provide a work around, or otherwise repair or replace the nonconforming Services, or, if Egnyte is unable to do so, terminate Customer’s access to the Services following reasonable notice and return fees for the Services previously paid to Egnyte for the period beginning with Customer’s notice of nonconformity through the remainder of the then-current Subscription Term.
    2. Egnyte represents that it makes best efforts to meet the requirements set forth in the Service Level Agreement (“SLA”) at the following link: https://www.egnyte.com/service-level-agreement/01-2020.html. In the event of any failure to meet the SLA requirements, Egnyte will provide the remedies set forth therein. This subsection shall not apply to any Customers on Egnyte’s Office, Business, or Team plans.
  3. Customer Warranties. Customer hereby represents and warrants that (i) Customer has all rights in the Content necessary to grant the rights of access, copying, and/or usage needed for Egnyte to properly perform the Services, and (ii) such access, copying and/or usage does not violate any law or other agreement to which Customer is a party.
  4. Disclaimer of Warranties. Except as set forth in this Section 7, Egnyte and its suppliers and licensors make no other representations or warranties of any kind, whether express, implied, statutory or otherwise. Egnyte expressly disclaims any implied warranty of merchantability or fitness for a particular purpose, and any warranty arising out of any course of performance, course of dealing, or usage of trade. Egnyte does not warrant that the Services will be uninterrupted or error-free, or that the content will be secure beyond any possible threat.

8. Confidentiality.

  1. 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 an Order Form), the Content, the Services (including the Egnyte Client), 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.
  2. 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 substantially the same manner that it protects the confidentiality of its own confidential information of like kind (and 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 DPA contains the terms pertaining to any Security Breach. For purpose of clarification, the non-disclosure/non-use provisions contained herein shall not 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.
  3. 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. 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 8.
  4. 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.
  5. 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.c below.

9. Indemnification.

  1. Indemnification by Egnyte. Egnyte will defend (subject to Section 9.c below) Customer from and against all claims, suits or actions made or brought by a third party (“Claim”) against Customer 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 Customer the right to continue using the Services under the terms of this Agreement or replace or modify the Services to be non-infringing without material decrease in functionality. If neither of the foregoing options is reasonably practicable in Egnyte’s judgment, Egnyte may terminate Customer’s access to the infringing Services upon 60 days’ written notice and refund Customer 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) Customer’s use of the Services other than in accordance with this Agreement. This Section 9.a states Customer’s exclusive remedy for any intellectual property claim regarding the Services.
  2. Indemnification by Customer. Customer will defend (subject to Section 9.c below) Egnyte against any Claim made or brought against Egnyte alleging that the Content, or Customer’s use of the Services in breach of this Agreement, infringes the intellectual property rights of that third party, and will indemnify Egnyte 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 Egnyte.
  3. Indemnification Process. A party’s obligation of indemnification is subject to the indemnified party: (i) promptly notifying the indemnifying party in writing of the existence of the Claim for which indemnification is sought; (ii) upon indemnifying party’s written request, granting the indemnifying party sole control over the defense, negotiation, compromise and settlement of the Claim, provided that the indemnifying party shall not bind the indemnified party to any final judgment without the prior written consent of such indemnified party, with such consent not to be unreasonably withheld; and (iii) cooperating with the indemnifying party with respect to any such Claim. The indemnified party may elect to participate in any such Claim with an attorney of its own choice and at its own expense.

10. Limitation of Liability.

  1. Limitation of Liability. Except for liability for indemnification Claims, property damage, personal injury, or fraud, neither party's aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall exceed the cumulative fees paid or payable by Customer under this Agreement during the twelve months preceding the incident. With respect to an indemnification Claim under Section 9 above, 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 two times the total amount paid or payable by Customer under this Agreement during the twelve months preceding the date of the event giving rise to such Claim. The foregoing shall not limit Customer’s payment obligations under Section 4 (“Fees and Payment”).
  2. Exclusion of Consequential and Related Damages. Except in the event of i. indemnification Claims, ii. property damage or personal injury, or iii. fraud, in no event shall either party have any liability to the other party for any lost profits or revenues (excluding Customer’s duty to pay fees hereunder) or for any indirect, special, incidental, consequential, cover, or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.

11. Term and Termination.

  1. Initial Term and Auto-Renewal. This Agreement will commence on the Agreement Effective Date and will continue for the period designated in the Order Form (“Subscription Term”). Upon expiration of the initial Subscription Term of an Order Form, the Order Form will automatically renew for successive twelve-month Subscription Terms subject to Section 4.b, unless (i) Customer elects to terminate this Agreement by giving Egnyte at least 30 days’ written notice and following the process specified by Egnyte in the Account, in which case the Services will end at the end of the then-current Subscription Term following the stated notice, or (ii) Egnyte elects to terminate this Agreement by giving Customer at least 30 days’ written notice prior to the end of the then-current Subscription Term. Notwithstanding the foregoing, for any Customer with a monthly subscription period, the Agreement shall automatically renew for successive one-month periods unless Customer gives timely notice of non-renewal in accordance with this section. 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.
  2. Termination for Cause. A party may terminate this Agreement for cause immediately upon written notice: (i) for a material breach of this Agreement by the other party if the breach remains uncured 30 days after receipt of the initial written notice setting forth the breach in reasonable detail or (ii) if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding (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.
  3. Post-Termination Obligations. Within ninety days of any termination of this Agreement, Egnyte will destroy all copies of Content that remain within Egnyte’s Services infrastructure.
  4. Survival. Terms that by their nature are intended to extend beyond termination, including, but not limited to, Sections 5 (“Ownership”), 7.d (“Disclaimer of Warranties”), 8 (“Confidentiality”), 9 (“Indemnification”), 10 (“Limitation of Liability”), 11.c (“Post-Termination Obligations”), and 12 (“General Provisions”), will survive any termination of this Agreement.

12. General Provisions.

  1. Governing Law. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules.
  2. Government Users. If Customer is a U.S. government entity, Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
  3. Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement. Egnyte may subcontract portions of the Services in accordance with the terms set forth in the DPA.
  4. 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.
  5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all attachments hereto), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
  6. 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.
  7. Public Announcement. Egnyte reserves the right to release a press announcement regarding the execution of this 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.
  8. General Compliance. 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. Customer and/or its 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. 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/corp/business-conduct-and-ethics.html.
  9. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between the parties with regard to the subject matter hereof, including any non-disclosure agreement (with the confidentiality provisions of this Agreement to govern any prior disclosures of Confidential Information). In the event of any conflict of terms, this Agreement supersedes any click-through terms (including any click-through trial terms) that may be included for the Egnyte Client. This Agreement may not be amended or modified except by a writing signed by both parties.