AegisysFileCloud - Service Trial Agreement
Last Updated: August 1st, 2017
Please read these terms of this Aegisys FileCloud Service Trial Agreement (“Agreement”) carefully as they form a contract between you (“Evaluator” or “you”) and Aegisys with an address at 7-598 Falconbridge Road, City of Greater Sudbury, ON, CA P3A 5K6. ("Aegisys", "we," "us," or "our") that governs Evaluator’s access and use of: (i) the hosted storage solution provided by Aegisys for online storage, sharing and processing of files, materials, data, text, audio, video, images or other content (collectively, "Content"); (ii) software provided or made available by Aegisys (the "Software"); and, (iii) any written or electronic documentation provided or made available by Aegisys (the "Documentation") (collectively the "Aegisys Service").
By using any portion of the Aegisys Service Evaluator agrees to be bound by this Agreement. If Evaluator is using the Aegisys Service on behalf of an organization, Evaluator is agreeing to this Agreement for that organization and promising to Aegisys that Evaluator has the authority to bind that organization to this Agreement (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with Aegisys, in which event the terms of that contract will govern Evaluator’s use of the Aegisys Service. Evaluator may use the Aegisys Service only in compliance with this Agreement and only if Evaluator has the power to form a contract with Aegisys and is not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST NOT USE THE Aegisys SERVICE.
2. The evaluation will be for a period of fourteen (14) days (“Trial Period”) or as otherwise agreed-to in writing by the parties. Upon expiration of the Trial Period, Evaluator and Aegisys may enter into the then current Aegisys Service Agreement for the Aegisys Service (“ASA”) found at https://www.aegisys.com/ASA or its equivalent Aegisys website link, at which time this Agreement will terminate. Evaluator may terminate this Agreement at any time during the Trial Period by giving Aegisys written notice. Upon termination Aegisys will have no obligations to Evaluator or any End User for any Content stored in the Aegisys Service or otherwise, including, without limitation, any obligations to maintain such Content or furnish the Content to Evaluator or End Users, or liability to Evaluator or End Users, or any third party for deletion or erasure of such Content.
3. Evaluator will not and will ensure that its End Users do not: (a) use the Aegisys Service in any manner or for any purpose other than as expressly permitted by this Agreement, (b) sell, lend, rent, resell, lease, or sublicense the Aegisys Service to any third party; (c) modify, alter, tamper with, repair or otherwise create derivative works of any software used to provide the Aegisys Service; (d) reverse engineer, disassemble or decompile the Aegisys Service, or attempt to derive source code from the Aegisys Service; (e) remove, obscure or alter any proprietary right notice related to the Aegisys Service; (f) use the Aegisys Service to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; (g) store or transmit data in any Content: (i) that is illegal to store or transmit; (ii) containing unlawful, defamatory, threatening, pornographic, abusive, or libelous material, (iii) containing any material that encourages conduct that could constitute a criminal offense, (iv) that violates the intellectual property rights or rights to the publicity or privacy of others, or (v) that contains malicious code; (h) interfere with or disrupt servers, networks or other equipment connected to or used to support the Aegisys Service or other Aegisys’s users’ access to the same, or violate the regulations, policies or procedures of such networks; (i) access or attempt to access other accounts hosted by the Aegisys Service or other computer systems or networks not covered by this Agreement, for which it does not have permission, through password mining or any other means; and (j) access or use the Aegisys Service in a way intended to avoid incurring fees or hiding usage that exceeds usage limits or quotas if any under this Agreement.
4. Evaluator acknowledges that the Aegisys Service has been provided free of charge, and as such Aegisys PROVIDES THE SERVICE “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AEGISYS MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL AEGISYS, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF AEGISYS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. To the MAXIMUM extent permitted by Applicable Law, the aggregate liability of AEGISYS and ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE BOX SERVICE WILL be limited to AN amount EQUAL TO THREE MONTHS OF THE trial FEE IF ANY. The limitations and exclusions also apply if this remedy does not fully compensate evaluator for any losses or fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO EVALUATOR TO THE EXTENT PROHIBITED BY LAW.
5. Evaluator acknowledges that the AEGISYS Service contains commercially valuable trade secrets and other confidential information of Box (“Confidential Information”). Evaluator agrees not to use any Confidential Information for any purpose other than to perform its obligations and exercise its rights expressly granted in this Agreement. Evaluator shall use the same degree of care, but no less than reasonable care, to avoid disclosure or use of the Confidential information as Evaluator employs with respect to its own Confidential Information of like importance. Without limitation of the foregoing, Evaluator agrees that, during the Trial Period of this Agreement and thereafter for as long as is reasonably necessary for Aegisys to protect its rights in the Confidential Information, it will: (i) hold such Confidential information in strict confidence; (ii) not disclose the Confidential Information to any third parties or use it in any way, commercially or otherwise, except as otherwise expressly authorized by this Agreement; and (iii) not allow any unauthorized person access to such Confidential Information, without the prior written consent of Aegisys. Evaluator will limit the disclosure of the Confidential Information to its employees with a need to know who: (a) have been advised of the confidential nature thereof; and (b) agree not to disclose or use such Confidential Information, except as expressly permitted under this Agreement.
Notwithstanding anything in this Agreement to the contrary, Confidential Information need not be treated as such if it is or becomes: (i) published or otherwise available to the public other than by a breach of this Agreement; (ii) rightfully received by Evaluator from a third party without confidential limitation; (iii) approved in writing for public release by Aegisys; (iv) known to Evaluator prior to its first receipt of such Confidential Information from Aegisys, as demonstrated by documented evidence; or (v) independently developed by Evaluator without use of or reference to the Confidential Information, as demonstrated by documented evidence.
6. If Evaluator or any End User is deemed a U.S. government entity, Evaluator or End User acknowledges that elements of the Box Service 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.
7. This Agreement will be construed and enforced in all respects in accordance with the laws of the Ontario, Canada, without reference to its choice of law rules. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Sudbury, Ontario, Canada. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
8. General Provisions.
(a) If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be enforced to the full extent possible and without effect on the remaining provisions of this Agreement, which shall remain in full force and effect.
(b) The failure of either party to enforce any provision of this Agreement shall in no way be construed to be a waiver of such provision, nor in any way affect the right of either party to enforce each and every provision of this Agreement thereafter.
(c) This Agreement may not be assigned by Evaluator without the express written approval of Aegisys, and any attempted assignment shall be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
(d) No alteration, amendment, waiver, cancellation or any other change in any provision of this Agreement shall be valid or binding on either party unless mutually assented to in writing by both parties. The terms and conditions of this Agreement constitute the entire agreement between the parties, whether oral or written with respect to the subject matter of this Agreement.
(e) The following provisions shall survive termination or expiration of this Agreement: Sections 1 (solely with respect to the Aegisys Policies), 4, 5, 6, 7, and 8.