A. Egnyte, Inc. ("Egnyte", "we", "us") EGNYTE provides a service that facilitates the storage and sharing of files over the Internet (the “Service”).
B. Under this Agreement, EGNYTE will provide its APIs to you, to enable you to modify certain of your own applications so that users of such applications are able to access and use the Service through such applications.
C. BY CLICKING ON THE “SUBMIT” OR “AGREE" OR "ACCEPT" BUTTON OR BY SIGNING THIS AGREEMENT, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. If you agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In such event, “you” will refer to that company or other legal entity.
You and EGNYTE agree as follows:
1. Description, Licenses, and Restrictions
1.1 Description of EGNYTE APIs. “APIs” means the EGNYTE integration APIs (in “REST” form), accompanying documentation, sample code and related materials, including any updates that we may provide to you from time to time. The APIs allow you to create or modify your own applications so that users of such applications are able to access and use the EGNYTE Service via such applications.
1.2 Developer Accounts and Access Codes. You will be required to submit to us information about the applications for which you wish to use the APIs. EGNYTE will review such information and, if EGNYTE approves such application in its discretion, EGNYTE will create a developer account for you in order to allow you to obtain the APIs and access to a single EGNYTE workgroup of your choosing (the “Sandbox Account”) to assist you with your development. An application for which EGNYTE has approved use of the APIs is referred to in this Agreement as an “Application.” Our approval of an Application does not mean that we have endorsed the Application. You will be issued one or more unique security keys and passwords (collectively, “Access Codes”) for accessing the Sandbox Account and APIs, and managing your account. You may only access your account with the Access Code issued to you by EGNYTE. Although we will use commercially reasonable efforts to make the Sandbox Account available to you at all times, access may not always be available. You may not sell, transfer, sublicense or otherwise disclose your Access Codes or any information obtained using your Access Codes to any other party or use them with any other applications other than the specific Application for which EGNYTE has approved the use of the APIs. You may not modify or attempt to circumvent the Access Codes. You are responsible for maintaining the secrecy and security of your Access Codes. You are fully responsible for all activities that occur using your Access Codes, regardless of whether such activities are undertaken by you or a third party. You are responsible for maintaining up-to-date and accurate information (including a current email address and other required contact information) for your account. Failure to do so may jeopardize your continued access to the APIs. Before we will permit your Application to access other EGNYTE workgroups, we will review the design and code of your Application for potential application problems. Your Application must require that users of your Application who access the EGNYTE Service through your Application agree to the Egnyte Terms of Service, as in effect from time to time, prior to their use of the Service.
1.3 APIs License Grant. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable license under EGNYTE’s intellectual property rights, during the term of this Agreement, (a) to use the APIs to develop, modify, test, and support your Application, and (b) to distribute or allow access to your integration of the APIs within your Application to end users of your Application provided that those end users are in compliance with the limitations and restrictions in this agreement. You have no right to distribute or allow any third party to have access to the APIs.
This Agreement does not allow you to resell the EGNYTE Service. If you are interested in reselling the Service, then you should visit www.Egnyte.com/partners to learn more about the partner program options.
1.4 Brand Features License Grant. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable and non-transferable license during the term of this Agreement to display our trade names, trademarks, service marks, logos and domain names that we make available to you in our discretion (collectively, “Brand Features”) to promote or advertise your integration of the APIs in your Application. You agree that your use and display of the Brand Features will at all times be consistent with any trademark usage guidelines that we may release from time to time. In any event, you agree not to display our Brand Features in any way that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to EGNYTE, or in a way that suggests we have created, sponsored, or endorsed your Application or its content.
1.5 Limitations. Every Application that is developed utilizing EGNYTE APIs requires Access Codes as described in Section 1.2. We may sometimes review the Egnyte API (including how our services are being accessed and used), but you acknowledge that we have no obligation to do so. We are not responsible for files, user posts on our forums or elsewhere, or any other information accessible through the Egnyte API. We may limit the number of calls accepted by the API if we believe that the number of calls to the Egnyte API may negatively impact the Egnyte API or Egnyte service. The Egnyte API and Service is a work in progress. You should keep that in mind. It will continue to change over time as we refine and add more features with the needs of our users and developers in mind.
In general, if an Application exceeds the API call limits mentioned above, EGNYTE has the right to the following:
a. Notify you that your Application has exceeded the call limit through email or other notification;
b. EGNYTE has the right to modify the above API call limitation at its discretion.
c. Disable any Application that exceeds the API call limit if you cannot be reached.
EGNYTE has the right to modify the above API call limitation at its discretion.
1.6 Usage Limitations. Notwithstanding anything to the contrary in Section 1.5, the terms of this section apply. You agree not to use the APIs in a manner that, as determined by EGNYTE in our sole discretion, exceeds reasonable request volume or constitutes excessive or abusive usage. EGNYTE may limit the number of network calls that your Application may make via the APIs, or anything else about your use of the APIs as we deem appropriate in our sole discretion, including but not limited to, the maximum size of the file that a user may store and send through the Service, the maximum number of times a user may access the Service in a given period of time, and the maximum number of recipients to which a user may send a user file.
1.7 Other Restrictions. In addition to other restrictions contained in this Agreement and in the Terms of Service posted on our public website applicable to the use of the EGNYTE Service, you agree not to do any of the following, unless otherwise expressly agreed in writing by EGNYTE:
a. Use the APIs or Brand Features for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement (or any document incorporated into this Agreement), or breach any laws or regulations, or violate any rights of third parties, in your use of the APIs;
b. Remove any legal, copyright, trademark, watermark or other proprietary rights notices contained in or on materials you receive or access pursuant to this Agreement, including the APIs, the other materials we may provide to you, and the EGNYTE websites available to the public or to developers ("Websites”);
c. Sell, lease, share, transfer, sublicense or fail to protect the confidentiality of the APIs, Access Codes, or other material we may make available to you through Access Codes;
d. Charge, directly or indirectly, any incremental fees (including any unique, specific, or premium charges) for access to EGNYTE’s Service from your Application, or your integration of the APIs in your Application;
e. Distribute, release, or disseminate statements or information that indicates or implies that your Application is sponsored or endorsed by EGNYTE;
f. Copy, adapt, reformat, reverse-engineer, disassemble, decompile, translate or otherwise modify the APIs, Access Codes, our Websites, or our Service;
g. Use the APIs in an Application that competes with products or services offered by us;
h. Interfere with or disrupt the EGNYTE Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
i. Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the EGNYTE Service or collect information about users of the Service for any unauthorized purpose;
j. Transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through your use of the APIs;
k. Use the APIs in an Application that contains or displays or promotes any of the following: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials (e.g. Nazi memorabilia) or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, any hacking, surveillance, interception, or descrambling equipment, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, the sale of tobacco or alcohol to persons under twenty-one (21) years of age, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, or weapons and accessories; or
l. Use the APIs for purposes where their failure could lead to death, personal injury, or severe property or environmental damage, including operating nuclear facilities, life support, or other mission critical applications where human life or property may be at stake.
1.8 Support and Maintenance.
a. Updates. EGNYTE may provide you with updates, upgrades, modifications and new releases of the EGNYTE APIs from time to time (“New Versions”), but shall not be obligated to do so. EGNYTE will ensure that, following the release of any New Version, the preceding version of the EGNYTE APIs will continue to function properly for a reasonable period of time.
b. Error Correction. You agree to notify EGNYTE of any errors or bugs you discover in the EGNYTE APIs and EGNYTE will use commercially reasonable efforts to correct such error or bug in the next release of the EGNYTE APIs made generally available by EGNYTE.
c. Changes to Service. Nothing in this Agreement shall be deemed to constitute an obligation on the part of EGNYTE to change or improve any functionality or usability of the EGNYTE Service and EGNYTE shall be entitled to make changes to the Service from time to time in its discretion.
1.9 Monitoring. You agree to provide us with access to your Application and/or other materials related to your use of the APIs as reasonably requested by us to verify your compliance with this Agreement. You agree that we may monitor your Application's use of the EGNYTE Service and you agree not to interfere with such efforts by EGNYTE.
1.10 EGNYTE Independent Development. You understand and acknowledge that EGNYTE may be independently creating applications, content and other products or services that may be similar to or competitive with your Application, and nothing in this Agreement will be construed as restricting or preventing EGNYTE from creating and fully exploiting such applications, content and other items, without any obligation to you.
2. Proprietary Rights
2.1 EGNYTE Property. As between you and us, EGNYTE owns all rights, title, and interest, including without limitation all intellectual property rights, in and to the APIs, and all elements, components, and executables of the APIs, our Websites, the Test Server and our Brand Features (collectively, the “EGNYTE Materials”). Except for the express licenses granted in this Agreement, EGNYTE does not grant you any right, title or interest in the EGNYTE Materials. You agree to take such actions, including, without limitation, execution of affidavits or other documents, as EGNYTE may reasonably request to effect, perfect or confirm EGNYTE’s rights to the EGNYTE Materials.
2.2 Feedback. You have no obligation to give us any suggestions, comments or other feedback (“Feedback”) relating to the EGNYTE Materials. However, we may use and include any Feedback that you voluntarily provide to improve the EGNYTE Materials and/or any other of our products, services or technologies. Accordingly, if you give Feedback, you agree that we may freely use, reproduce, license, and distribute such Feedback, without compensation to you. You also agree not to provide Feedback that you know is subject to any intellectual property claim by a third party or any license terms which would require products or services derived from such Feedback to be licensed to or from, or shared with, any third party.
2.3 Your Ownership of the Application. Except to the extent your Application contains EGNYTE Materials, EGNYTE claims no ownership or control over your Application. You represent and warrant to EGNYTE that, excluding EGNYTE Materials, you have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute your Application, and that use by EGNYTE and its users of your Application shall not violate the rights of any third party (e.g., copyright, patent, trademark, or other proprietary right of any person or entity), or any applicable regulation or law, including the laws of any country in which your Application is made available.
4. Marketing and Publicity
You agree that we may publicly refer to you, orally or in writing, as a licensee of the EGNYTE APIs and we may publish your name and/or logo (with or without a link to your Application) on our Websites, in press releases, and in promotional materials.
5. Term and Termination
5.1 Term. The term of this Agreement commences on the Effective Date and shall continue until terminated as follows. Either EGNYTE or you may terminate this Agreement at any time, with or without cause, effective immediately upon notice to the other. In addition, we may discontinue the availability of some or all of the APIs, EGNYTE Materials or the EGNYTE Service at any time for any reason.
5.2 Effect of Termination. Upon the expiration or termination of this Agreement for any reason:
a. All license rights granted to you pursuant to this Agreement will terminate and you will cease all use of the EGNYTE APIs in any future releases of your Applications and return or destroy all copies of the EGNYTE APIs that are in your possession or control.
b. EGNYTE may in its discretion cease to make the EGNYTE Service available or accessible from your Applications.
c. Sections 2 (Proprietary Rights), 3 (Privacy), 4 (Marketing and Publicity), 5 (Term and Termination), 6 (Warranty Disclaimer), 7 (Limitation of Liability), 8 (Indemnification), and 9 (General Terms), will survive any expiration or termination of this Agreement.
5.3 Remedies. You acknowledge that your breach of this Agreement may cause irreparable harm to EGNYTE, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which EGNYTE may be legally entitled, EGNYTE shall have the right to seek immediate injunctive relief in the event of a breach of this Agreement by you or any of your officers, employees, consultants or other agents.
6. Warranty Disclaimer
THE EGNYTE MATERIALS ARE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. WE DO NOT REPRESENT, WARRANT OR MAKE ANY CONDITION THAT THE EGNYTE MATERIALS ARE FREE OF INACCURACIES, ERRORS, BUGS OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE OR OTHERWISE VALID. YOUR USE OF THE EGNYTE MATERIALS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE EGNYTE MATERIALS INCLUDING FOR ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR WEBSITES OR OUR SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
7. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EGNYTE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EGNYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE EGNYTE MATERIALS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN THE EGNYTE MATERIALS OR ANY EGNYTE SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE EGNYTE MATERIALS OR ANY EGNYTE SERVICES. UNDER NO CIRCUMSTANCES SHALL EGNYTE’S AGGREGATE, CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, EXCEED U.S. ONE HUNDRED DOLLARS (U.S. $100).
You agree to hold harmless and indemnify EGNYTE, and its affiliates, and their respective directors, officers, agents, and employees, advertisers or partners, from and against any third party claim arising from or in any way related to your Applications, products or services, your use of any EGNYTE Materials, violation of this Agreement, or any other actions connected with your use of the EGNYTE APIs, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and reasonable attorneys' fees, of every kind and nature.
9. General Terms
9.1 Governing Law, Venue and Attorney’s Fees. This Agreement will be governed by the substantive laws of the State of California. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court located in Santa Clara County, California[S1] . Each party irrevocably submits to the jurisdiction of such courts. In the event of litigation between the parties arising out of or related to this Agreement, the prevailing party will be entitled to recover its attorneys' fees and costs incurred.
9.2 Export Laws. You shall comply with applicable export laws and regulations of the United States with respect to any technical materials you receive pursuant to this Agreement.
9.3 Waiver. The failure of EGNYTE to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
9.4 Severability of Terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
9.5 Entire Agreement, Scope and Modification. This Agreement constitutes the entire agreement between us with respect to the subject matter herein, and it supersedes any and all prior proposals (oral and written), understandings, representations and other communications between us. This Agreement relates only to your use of the EGNYTE APIs. Agreements relating to any other matters shall be governed by separate agreements. This Agreement may not be modified or amended except by a written instrument signed by both parties.
9.6 Assignment, Third Parties. You may not assign this Agreement, in whole or in part, without EGNYTE’s prior written consent. Any assignment in violation of this section is null and void. This Agreement shall not be interpreted to create any rights in any persons or entities other than the parties to this Agreement.
9.7 Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.