Processing Activities Covered
- Visit our Website (CUBE3.AI);
- Use the CUBE3.AI as a customer or an authorized user (for example, as an employee of one of our customers who provided You with access to our services); or
- Communicate with us about our products and services, whether by email, phone, or otherwise
Interpretation and Definitions
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
- You means the individual accessing or using the Services, or the company, or other legal entity on behalf of which such individual is accessing or using the Services, as applicable.
- Affiliate means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
- Account means a unique account created for You to access our Services or parts of our Services.
- Website refers to http://CUBE3.AI
- Services refers collectively to the Website and to the Dashboard and CUBE3.AI, as those terms are defined in the Terms of Service.
- Service Provider means any natural or legal person who processes the data on behalf of the Company. It refers to third-party companies or individuals employed by the Company to facilitate the Services, to provide the Services on behalf of the Company, to perform services related to the Services or to assist the Company in analyzing how the Services are used.
- Third-party Social Media Service refers to any website or any social network website through which a User can log in or create an account to use the Service.
- Personal Data is any information that relates to an identified or identifiable individual.
- Cookies are small files that are placed on Your computer, mobile device or any other device by a website, containing the details of Your browsing history on that website among its many uses.
- Device means any device that can access the Services such as a computer, a cellphone or a digital tablet.
- Usage Data refers to data collected automatically, either generated by the use of the Services or from the Services infrastructure itself (for example, the duration of a page visit).
Collecting and Using Your Personal Data
Types of Data Collected
While using Our Services, We may ask You to provide Us with certain personally identifiable information that can be used to contact or identify You. Personally identifiable information may include, but is not limited to:
- Email address
- Professional information such as employer and position/title
- Usage Data
- Payment and billing details
- Other information that you submit in contact forms or messages that you send us through the Services
Usage Data is collected automatically when using the Services.
Usage Data may include information such as Your Device’s Internet Protocol address (e.g. IP address), browser type, browser version, the pages of our Services that You visit, the time and date of Your visit, the time spent on those pages, unique device identifiers and other diagnostic data.
When You access the Services by or through a mobile device, We may collect certain information automatically, including, but not limited to, the type of mobile device You use, Your mobile device unique ID, the IP address of Your mobile device, Your mobile operating system, the type of mobile Internet browser You use, unique device identifiers and other diagnostic data.
We may also collect information that Your browser sends whenever You visit our Services or when You access the Services by or through a mobile device.
Personal Data We Collect from Other Sources
We also collect information about You from other sources, including third party data providers and from publicly available information, and combine this information with Personal Data that You provide. The Personal Data We collect from other sources may include Your name and email address, and professional details such as Your employer and title/position.
Tracking Technologies and Cookies
However, if You do not accept Cookies, You may not be able to use some parts of our Services.
Cookies can be “Persistent” or “Session” Cookies. Persistent Cookies remain on your personal computer or mobile device when You go offline, while Session Cookies are deleted as soon as You close your web browser. Learn more about cookies: All About Cookies.
We use both session and persistent Cookies for the purposes set out below:
– Necessary / Essential Cookies
Type: Session Cookies
Administered by: Us
Purpose: These Cookies are essential to provide You with services available through the Website and to enable You to use some of its features. They help to authenticate users and prevent fraudulent use of user accounts. Without these Cookies, the services that You have asked for cannot be provided, and We only use these Cookies to provide You with those services.
– Cookies Policy / Notice Acceptance Cookies
Type: Persistent Cookies
Administered by: Us
– Functionality Cookies
Type: Persistent Cookies
Administered by: Us
Purpose: These Cookies allow us to remember choices You make when You use the Website, such as remembering your login details or language preference. The purpose of these Cookies is to provide You with a more personal experience and to avoid You having to re-enter your preferences every time You use the Website.
Third parties with whom we work may also set cookies and use other similar tracking technologies to collect information about Your online activities over time and across different web sites when You use the Website.
Use of Your Personal Data
The Company may use Personal Data for the following purposes:
- To provide and maintain our Services, including to monitor the usage of our Services.
- To manage Your Account: to manage Your registration as a user of the Services. The Personal Data You provide can give You access to different functionalities of the Services that are available to You as a registered user.
- For the performance of a contract: the development, compliance and undertaking of the purchase contract for the products, items or services You have purchased or of any other contract with Us through the Services.
- To contact You: To contact You by email, telephone calls, SMS, or other equivalent forms of electronic communication, such as a mobile application’s push notifications regarding updates or informative communications related to the functionalities, products or contracted services, including the security updates, when necessary or reasonable for their implementation.
- To provide You with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or enquired about unless You have opted not to receive such information.
- To manage Your requests: To attend and manage Your requests to Us.
- To comply with laws and regulations that apply to our business, and for other related purposes: To comply with applicable laws and regulations, lawful requests, and legal process, such as to respond to subpoenas or requests from government authorities, and for other related purposes, such as maintaining tax and accounting records, and for similar recordkeeping and auditing purposes.
- To prosecute or defend against legal claims, and as otherwise necessary to protect and defend the rights or property of the Company.
We may share your personal information in the following situations:
- With Service Providers: We may share Your personal information with Service Providers to monitor and analyze the use of our Services, to contact You, and to perform other functions on our behalf
- For Business transfers: We may share or transfer Your personal information in connection with, or during negotiations of, any merger, sale of Company assets, financing, or acquisition of all or a portion of our business to another company.
- With Business partners: We may share Your information with Our business partners to offer You certain products, services or promotions.
- With other users: when You share personal information or otherwise interact in the public areas of the Services with other users, such information may be viewed by all users.
Retention of Your Personal Data
The Company will also retain Usage Data for internal analysis purposes. Usage Data is generally retained for a shorter period of time, except when this data is used to strengthen the security or to improve the functionality of Our Services, or We are legally obligated to retain this data for longer time periods.
We determine the appropriate retention period for Personal Data on the basis of the amount, nature, and sensitivity of the Personal Data being processed, the potential risk of harm from unauthorized use or disclosure of the Personal Data, whether We can achieve the purposes of the processing through other means, and on the basis of applicable legal requirements (such as applicable statutes of limitation).
For more information on Our data retention periods, please contact Us by using the information in the “Contact Us” section below.
Transfer of Your Personal Data
Your information, including Personal Data, is processed at the Company’s operating offices and in any other places where the parties involved in the processing are located. It means that this information may be transferred to — and maintained on — computers located outside of Your state, province, country or other governmental jurisdiction where the data protection laws may differ than those from Your jurisdiction.
Disclosure of Your Personal Data
Under certain circumstances, the Company may be required to disclose Your Personal Data if required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).
Other legal requirements
The Company may disclose Your Personal Data in the good faith belief that such action is necessary to:
- Comply with a legal obligation
- Protect and defend the rights or property of the Company
- Prevent or investigate possible wrongdoing in connection with the Services
- Protect the personal safety of Users of the Services or the public
- Protect against legal liability
Security of Your Personal Data
The security of Your Personal Data is important to Us, but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While We strive to use commercially acceptable means to protect Your Personal Data, We cannot guarantee its absolute security.
Your California Privacy Rights (California’s Shine the Light law)
Under California Civil Code Section 1798 (California’s Shine the Light law), California residents with an established business relationship with us can request information once a year about sharing their Personal Data with third parties for the third parties’ direct marketing purposes.
If you’d like to request more information under the California Shine the Light law, and if you are a California resident, You can contact Us using the contact information provided below.
California Privacy Rights for Minor Users (California Business and Professions Code Section 22581)
California Business and Professions Code section 22581 allow California residents under the age of 18 who are registered users of online sites, services or applications to request and obtain removal of content or information they have publicly posted.
To request removal of such data, and if you are a California resident, You can contact Us using the contact information provided below, and include the email address associated with Your account.
Be aware that Your request does not guarantee complete or comprehensive removal of content or information posted online and that the law may not permit or require removal in certain circumstances.
Additional Information for individuals in the European Union
Legal Bases for Processing
We will only process Your Personal Data when we have an appropriate legal basis under the GDPR to do so. We have set out below a summary of the purposes for which we process Your Personal Data and the corresponding legal bases upon which we rely for the processing:
Purpose of ProcessingLegal BasisTo provide and maintain our Services, including to monitor the usage of our Services.Our legitimate interests in maintaining, operating, and securing our Services, where applicable, as necessary to perform our agreement with You, and in the case of Personal Data collected through cookies and other tracking technologies, Your consent, when required by applicable law.To manage Your AccountOur legitimate interest in managing and administering our relationships with our customers; and, where applicable, as necessary to perform our agreement with You.For the performance of the purchase contractOur legitimate interest in performing our agreements with customers, and, where applicable, as necessary to perform our agreement with You.To contact You regarding updates or informative communications related to the functionalities, products or contracted services, including the security updates, when necessary or reasonable for their implementation.Our legitimate interest in providing service and support for our products to our customers with respect to their use of our products and services.To provide You with news, special offers and general information about other goods, services and events which we offerOur legitimate interest in promoting our products and services, and, where applicable, your consent to receive direct marketing communications from us.To manage Your requestsOur legitimate interest in managing and responding to user requests.To comply with laws and regulations that apply to our business, and for other related purposes, including maintaining tax and accounting records, and for similar recordkeeping and auditing purposesOur legitimate interest in complying with the laws and regulations that apply to our business and in the proper management and administration of our business; and, where applicable, as necessary for compliance with a legal obligation to which we are subject under EU or EU member state law.To prosecute or defend against legal claims, and as otherwise necessary to protect and defend the rights or property of the Company.Our legitimate interest in prosecuting and defending against legal claims and protecting the rights or property of the Company.
Necessity to provide personal data
Providing Your personal data is voluntary, but necessary to establish commercial relationships. If You do not wish to provide Your Personal Data to us, we will not be able to provide you with our products and services.
We will not use your data for automated decision-making, including profiling, which produces legal effects concerning You or similarly significantly affects You, or that is based on special categories of Personal Data.
To the extent Our collection and processing of Your Personal Data is subject to the GDPR, you have certain rights regarding Your Personal Data, including the right to request :
- notification and familiarisation with your personal data processed (access right);
- rectification of your personal data;
- erasure of your personal data;
- restriction of your personal data processing;
- presentation of your personal data in systemised, computer readable format;
- your objection to your personal data processing (if the basis for data processing is the legitimate interest).
If your personal data is processed on the basis of your consent, you also have the right to revoke the consent at any time.
We will examine the request within thirty (30) days from its receipt and notify you about the actions taken following the request.
If you believe that your rights related to your personal data processing carried out by us were infringed, you have the right to lodge a complaint with a supervisory authority.
Links to Other Websites
We have no control over and assume no responsibility for the content, privacy policies or practices of any third-party sites or services.
Terms of Service
Cube Security Inc. Terms of Service
CUBE SECURITY INC. AND ITS AFFILIATES (COLLECTIVELY OR INDIVIDUALLY AS APPLICABLE, “CUBE3”, “OUR”, “WE,” OR “US”) OFFER PRODUCTS AND SERVICES FROM THE CUSTOMER PORTAL LOCATED ON OUR WEBSITE, AS WELL AS ANY MOBILE VERSIONS OF THE SAME, AND VIA APPLICATION PROGRAMMING INTERFACE (COLLECTIVELY, THE “PORTAL”) SUBJECT TO THE FOLLOWING TERMS OF SERVICE.
BY ACCESSING AND USING THE PORTAL AND/OR THE CUBE3 CLOUD SERVICES (AS DEFINED BELOW), BY EXECUTING OR ACCEPTING AN ORDER FORM (AS DEFINED BELOW), OR BY CLICKING “I AGREE” OR THE LIKE DURING THE CUSTOMER ONBOARDING PROCESS, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AS THE “CUSTOMER” HEREUNDER. THESE TERMS OF SERVICE ARE A LEGALLY BINDING AGREEMENT BETWEEN CUBE3 AND CUSTOMER. IF YOU USE THE PORTAL AND/OR THE CUBE3 CLOUD SERVICES ACTING AS THE AGENT FOR A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH COMPANY OR ENTITY AS THE “CUSTOMER” HEREUNDER, AND YOU GUARANTEE COMPLIANCE BY SUCH COMPANY OR ENTITY WITH THESE TERMS OF SERVICE. THESE TERMS OF SERVICE AND ANY APPLICABLE ORDER FORM CUSTOMER MAY HAVE ENTERED INTO WITH CUBE3 ARE A LEGALLY BINDING AGREEMENT AND ARE REFERRED TO AS THE “AGREEMENT.” YOU REPRESENT AND WARRANT THAT YOU WILL USE THE PORTAL AND/OR THE CUBE3 CLOUD SERVICES ONLY FOR BUSINESS OR PROFESSIONAL PURPOSES.
CUBE3 RESERVES THE RIGHT AT ANY TIME TO CHANGE, ADD, OR DELETE PORTIONS OF THESE TERMS OF SERVICE. CUBE3 WILL POST CHANGES TO THESE TERMS OF SERVICE, IF ANY, TO THE PORTAL BY REPLACING THESE TERMS OF SERVICE WITH UPDATED TERMS OF SERVICE THAT INCLUDE A NEW EFFECTIVE DATE SET FORTH ABOVE. IT IS YOUR RESPONSIBILITY TO CHECK THE PORTAL PERIODICALLY FOR CHANGES. FOLLOWING ANY UPDATE TO THE TERMS OF SERVICE, YOU WILL BE ASKED TO ACCEPT SUCH UPDATED TERMS OF SERVICE BY CLICKING “I AGREE”. FAILURE TO ACCEPT ANY SUCH UPDATED TERMS OF SERVICE WILL RESULT IN THE TERMINATION OF THIS AGREEMENT AND THE CUBE3 CLOUD SERVICES BY CUBE3, AND CUSTOMER’S SOLE REMEDY FOR LOSS OF USE OF THE CUBE3 CLOUD SERVICES IN SUCH CASE WILL BE TO CEASE USING THE CUBE3 CLOUD SERVICES.
1. As used in this Agreement:
1.1. “Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the CUBE3 Software Services.
1.2. “Admin User” means the employees and/or contractors of Customer who are designated to be Administrative Users and have the ability to issue Access Credentials.
1.3. “CUBE3 Analytics” means any information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by the CUBE3 Software Services, including without limitation as derived from aggregated anonymized inputs to, and usage of, the CUBE3 Software Services across all CUBE3 customers. In no event will CUBE3 Analytics include any personally identifiable information or Customer Inputs.
1.4. “CUBE3 Software Services” means the CUBE3 software as a service offerings, including those designated in the applicable Order Form, which are made generally commercially available by CUBE3 as of the Effective Date, and all Updates thereto made generally commercially available by CUBE3 to its customers during the Term (as defined below).
1.5. “CUBE3 Services Code” means any source code or object code that CUBE3 makes available to Customer as part of the CUBE3 Software Services, which for the avoidance of doubt includes only computer code that CUBE3 specifically makes available to customers for use within their own software programs or applications, including within or as part of any software development kit, and does not include any computer code that is part of the Portal or other portion of the CUBE3 Software Services.
1.6. “CUBE3 Technology” means the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, work flows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the CUBE3 Software Services, including the CUBE3 Services Code, and including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
1.7. “Customer Inputs” means information, data, text, content, videos, images, audio clips, photos, graphics, and / or other types of content, information and/or data posted, provided and/or uploaded to the CUBE3 Software Services by Customer.
1.8. “Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions, and use of the CUBE3 Software Services and which are prepared by CUBE3 and made available to Customer, including within the Portal.
1.9. “Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark, trade dress, or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
1.10. “Order Form” means CUBE3’s standard order form accepted in writing (or electronically) by Customer and CUBE3, which includes orders placed electronically through the Portal. As part of the sign-up process for the CUBE3 Software Services, the Customer will be asked to select a product plan, and the selected product plan will constitute the initial Order Form hereunder. Each subsequent product plan selected by the Customer, including each upgrade from an existing product-plan selection, will be deemed a new Order Form for purposes of this Agreement.
1.11. “Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the CUBE3 Software Services made generally commercially available as part of the CUBE3 Software Services during the period in which Customer is using the CUBE3 Software Services. Updates may also include new features and/or functionality for which CUBE3 reserves the right to charge an additional fee if Customer elects to activate such new features and/or functionality.
1.12. “User” means Customer’s Admin Users and any other Customer users who have been assigned Access Credentials.
2. CUBE3 CLOUD SERVICES
2.1 CUBE3 Software Services. Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees (if any), CUBE3 shall make the CUBE3 Software Services available to Customer pursuant to the terms and conditions of this Agreement.
2.2 Customer Access. Customer acknowledges and agrees that Customer’s Users’ access and use of the CUBE3 Software Services is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the CUBE3 Software Services, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. CUBE3 will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software.
2.3 Modifications to the CUBE3 Software Services. CUBE3 reserves the right to enhance, improve and modify the CUBE3 Software Services on a continuous basis at no cost to Customer.
3. ACCESS GRANT; LICENSES; OWNERSHIP
3.1 Access Grant; License. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Documentation, and each Order Form, (i) CUBE3 grants to Customer during the Term a non-exclusive, non-transferable, worldwide, revocable, non- sublicensable right to allow its Users to access and use the CUBE3 Software Services; and (ii) CUBE3 grants to Customer a nonexclusive and nontransferable license to use any CUBE3 Services Code made available to Customer solely as set forth in the Documentation and each applicable Order Form. The rights set forth in this Section 3.1 may be exercised by Customer’s third-party contractors and service providers; provided that Customer shall be responsible for any breach of this Agreement by any such third-party contractors and service providers.
3.2 Customer Inputs. To enable CUBE3 to provide the CUBE3 Software Services, Customer grants to CUBE3 a non-exclusive, royalty-free license to access, use, and copy the Customer Inputs solely as necessary to provide the CUBE3 Software Services for the benefit of Customer. CUBE3 agrees Customer owns all right, title and interest in and to the Customer Inputs and reserves all rights thereto that are not expressly granted to CUBE3 under this Agreement.
CUSTOMER WILL BE RESPONSIBLE FOR MAKING BACK-UP AND ARCHIVAL COPIES OF ALL CUSTOMER INPUTS. IN NO EVENT WILL CUBE3 BE RESPONSIBLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS, CORRUPTION OR ALTERATION OF CUSTOMER INPUTS, OR FOR ANY LOSS ARISING OUT OF ANY BREACH OF SECURITY, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, DIRECT, INDIRECT OR OTHER DAMAGES OF ANY KIND.
3.3 Users. Unless otherwise provided in such Customer’s Order Form, Customer, through its Admin Users, may provide for an unlimited number of Users to access and use the CUBE3 Software Services. CUBE3 will provide Admin Users with the ability to grant Access Credentials to each User. Customer will at all times be responsible for all actions taken under Customer’s account.
3.4 Ownership. The CUBE3 Software Services, the CUBE3 Technology, the CUBE3 Analytics, the Documentation and all worldwide Intellectual Property Rights in each of the foregoing and in all derivative works of each of the foregoing, are the exclusive property of CUBE3 and its licensors, including any updates or modifications made as a result of any Feedback. In the event Customer provides any suggested improvements, enhancements, or feedback with respect to the CUBE3 Software Services (collectively, “Feedback”), Customer hereby assigns to CUBE3 all rights, title, and interest in and to such Feedback. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by CUBE3 and its licensors.
3.5 Third Party Software. One or more third-party proprietary or open source programs or services may be embodied in, bundled with, or otherwise provided by CUBE3 to Customer in connection with CUBE3 Services Code. Customer acknowledges that open source programs are distributed under the terms of the open source license applicable to each such program, and only such license, with no additional license conditions. Where required by the applicable license, the source code for each open source program distributed by CUBE3 can be accessed by Customer via CUBE3’s website. Any rights associated with any open source program apply to that program only and not to any other programs owned by CUBE3 or its licensors even if distributed together with the open source program.
3.6 Marketing. CUBE3 may publicly refer to Customer as a customer of CUBE3, including on CUBE3’s website and in sales presentations, and may use Customer’s logo for such purposes. Similarly, Customer may publicly refer to itself as a customer of CUBE3’s software as a service, including on Customer’s website.
3.7 Collection and Use of Information.
(a) Customer acknowledges that CUBE3 may, directly or indirectly through the services of third parties, collect and store information regarding use of the CUBE3 Software Services and about equipment on which the CUBE3 Software Services is installed or through which it otherwise is accessed and used and that such information may become part of the CUBE3 Analytics.
(b) Customer acknowledges and agrees that CUBE3 may create, collect, use, and disclose the CUBE3 Analytics for any business purposes, including without limitation to:
(i) Improve the performance of the CUBE3 Software Services or develop updates thereto; and
(ii) Verify Customer’s compliance with the terms of this Agreement and enforce CUBE3’s rights, including all Intellectual Property Rights in and to the CUBE3 Software Services.
4. CUSTOMER RESPONSIBILITIES.
4.1 Access Credentials. Customer will be responsible for all acts and omissions of Customer’s Users. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Users to provide their Access Credentials to anyone else; and (2) not permit others to use Customer’s Access Credentials. Customer will notify CUBE3 immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security, including as outlined in the DPA (as defined below). CUBE3 reserves the right to take any action CUBE3 deems necessary or reasonable to ensure the security of the CUBE3 Software Services and Customer’s Access Credentials and account, including terminating Customer’s access, changing passwords, or requesting additional information to authorize activities related to Customer’s account.
4.2 Use Guidelines. Customer shall comply with all applicable laws, rules and regulations in its use of the CUBE3 Software Services. Customer shall use the CUBE3 Software Services solely for Customer’s internal business purposes as contemplated by this Agreement and shall
not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, copy, reproduce, distribute, time share or otherwise commercially exploit or make the CUBE3 Software Services available to any third party, other than as expressly permitted by this Agreement; (ii) disrupt any servers or networks connected to the CUBE3 Software Services, or disobey any requirements, procedures, policies or regulations of networks connected to the CUBE3 Software Services; (iii) attempt to gain unauthorized access to the CUBE3 Software Services or the CUBE3 Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the CUBE3 Software Services; (v) use the CUBE3 Software Services in violation of (x) any applicable, law, rule, regulation, or guideline (including any United States export laws and regulations), or (y) any contractual agreement by which Customer is bound; (vi) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the CUBE3 Software Services or breach any security or authentication measures; (vii) except with respect to the CUBE3 Services Code, copy, distribute, modify, adapt, hack, disassemble, decompile, decode, or reverse engineer to extract any source code, object code, machine code or any other software code from the CUBE3 Software Services or CUBE3 Technology or otherwise attempt to derive or gain unauthorized access to the CUBE3 Software Services, the CUBE3 Technology or related systems or networks, or otherwise take action inconsistent with Customer’s acknowledgement that title to CUBE3 Technology, and all Intellectual Property Rights incorporated therein, shall remain the sole and exclusive property of CUBE3; (viii) copy, distribute, modify, adapt, hack, disassemble, decompile, or decode any CUBE3 Services Code except as expressly authorized in writing by CUBE3, including in the Documentation or an Order Form, or use any CUBE3 Services Code for any purpose other than Customer’s internal business purposes; (ix) access or use the CUBE3 Software Services or CUBE3 Technology for purposes of competitive analysis of the CUBE3 Software Services or CUBE3 Technology, the development, provision, or use of a competing software service or product, or any other purpose that is to the detriment or commercial disadvantage of CUBE3; or (x) utilize the CUBE3 Software Services in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or plant malware on CUBE3’s computer systems, those systems of CUBE3’s third-party service providers or vendors, or otherwise use the CUBE3 Software Services to attempt to upload and/or distribute malware.
(a) Customer agrees that, during the period in which Customer is using the CUBE3 Software Services and ending on the fourth (4th) anniversary of the last date of Customer’s use of the CUBE3 Software Services (the “Restricted Period”), Customer will not directly or indirectly, and Customer will ensure that Customer’s Users do not directly or indirectly, (i) render services to any third party for the purposes of competing with the CUBE3’s RASP (runtime application self- protection) offering; or (ii) interfere with business relationships (whether formed heretofore or hereafter) between CUBE3 and its customers or potential customers. Customer acknowledges and agrees that CUBE3 will suffer irreparable harm in the event that Customer breaches any of Customer’s obligations under this Section 4.3(a) of this Agreement and that monetary damages would be inadequate to compensate CUBE3 for such breach. Accordingly, Customer agrees that, in the event of a breach or threatened breach by Customer of any of Customer’s obligations under Section 4.3(a) of this Agreement, CUBE3 will be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief, and expedited discovery for the purpose of seeking relief, in order to prevent or to restrain any such
breach. CUBE3 will be entitled to recover its costs incurred in connection with any action to enforce Section 4.3(a) of this Agreement, including reasonable attorneys’ fees and expenses, to the maximum extent permitted by applicable law.
(b) During the period in which Customer is using the CUBE3 Software Services and for four (4) years thereafter, Customer shall not, and shall not assist any other person or entity to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any person then or within the prior 12 months employed or engaged by CUBE3 or any third-party contractor to CUBE3 and involved in any respect with the CUBE3 Software Services or the performance of this Agreement. In the event of a violation of this Section 4.3(b), CUBE3 will be entitled to liquidated damages equal to the compensation paid by CUBE3 to the applicable employee or contractor during the prior 12 months.
4.4 Customer Input Restrictions. The CUBE3 Software Services includes the ability for the Customer to upload Customer Inputs. Customer is responsible for all Customer Inputs. Customer represents, warrants and covenants Customer has all rights and licenses necessary to upload the Customer Inputs and to grant the licenses granted hereunder. Customer represents, warrants and covenants that the Customer Inputs:
(i) will not and do not infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
(ii) will not and do not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
(iii) are not and will not become unlawful, tortious, fraudulent, defamatory or harmful to minors, obscene, or pornographic;
(v) will not and do not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to, proprietary or confidential information of others; and
(vi) will not and do not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
4.5 Third Party Services. If and to the extent Customer uses the CUBE3 Software Services to access or use any third party’s websites, platforms, content, products, services, or information (“Third Party Services”), or CUBE3 accesses or uses Third Party Services on Customer’s behalf to facilitate the performance of the CUBE3 Software Services, Customer shall ensure, and be solely responsible for ensuring, that such access and use, including through keys, passwords, credentials or tokens issued or otherwise made available by Customer or the Third Party Service provider, is authorized by the terms of access and use for such Third Party Services.
4.6 Customer Representation. Customer represents, warrants, and covenants that it is not, and shall not during the Term be, 1) an organization that is: (a) in a country or is a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, (d) any person resident in or determined to be resident in a country, in each case, that is subject to a country sanctions program administered and enforced by OFAC; 2) any organization that is operated by a person (individual, company, or group of companies) listed in any sanctions-related list of designated persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority; or 3) any organization that uses blockchain analytics to enable or permit any criminal activity, including money laundering, sanctions evasion, or operating on the dark web.
5. FEES AND PAYMENT.
5.1 Fees. If the Customer elects to use or upgrade to a paid version of the CUBE3 Software Services, Customer will pay to CUBE3 the fees set forth in the Portal or in each Order Form in accordance with the payment schedule set forth in the Portal or such Order Form, as applicable. Customer will be required to pay the fees set forth in the Portal, or in the Customer’s Order Form, as set forth on the Portal or Order Form, as applicable. Except as otherwise set forth herein, in the Portal, or in an applicable Order Form, all fees are nonrefundable, will be paid in U.S. dollars, and exclude all applicable sales, use, value-added, and other taxes. Any fees that are not paid when due are subject to interest at one percent (1.0%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer further acknowledges and agrees that the CUBE3 Software Services include features that are designed to optimize cost, performance, compliance, and scalability across multiple cloud- computing and cloud-storage providers utilized by the Customer, and therefore CUBE3 may incur charges on Customer’s behalf with such cloud-computing and cloud-storage providers. The Customer acknowledges and agrees that any fees or charges incurred by CUBE3 on behalf of the Customer with such cloud-computing and cloud-storage providers are solely the obligation of the Customer, and CUBE3 will not be responsible for paying any such amounts on behalf of the Customer or otherwise.
5.2 Taxes. Customer will make all payments to CUBE3 free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to CUBE3, other than taxes on CUBE3’s income, will be Customer’s sole responsibility, and if requested by CUBE3, Customer will provide CUBE3 with official receipts issued by the appropriate taxing authority, or such other evidence as CUBE3 may reasonably request, to establish that such taxes have been paid.
6. CONFIDENTIALITY AND DATA PROTECTION
6.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the Term disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the CUBE3 Software Services, CUBE3 Services Code, and the CUBE3 Technology constitutes Confidential Information of CUBE3 and Customer Inputs constitute the Confidential Information of Customer.
6.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees and contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 6 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the Term and for five (5) years following the termination or expiration of this Agreement.
6.3 Exceptions. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party, as permitted by applicable law, rules and regulations, notifies the Disclosing Party of such required disclosure in writing promptly, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.4 Destruction of Confidential Information. The Receiving Party will destroy or permanently erase, as appropriate, all physical and electronic copies of Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first; provided that any electronic copies stored in connection with the Receiving Party’s back-up and recovery operations conducted in the ordinary course of business may be retained and will continue to be subject to the terms herein. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this subsection.
6.5 Confidentiality of Agreement. Neither party will disclose any terms of any Order Form, or any amendment, modification or waiver to this Agreement, to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law; (b) pursuant to a mutually agreeable press release; (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement, or is otherwise subject to confidentiality obligations, in each case no less strict than those set forth in this Agreement); or (d) as provided in Subsection 3.6.
6.6 No Protected Health Information. Customer shall not provide, transmit, disclose, or otherwise make available to CUBE3 any “Protected Health Information” as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Customer agrees that CUBE3 is not a “Business Associate” or “Subcontractor” under HIPAA, and Customer shall not use the CUBE3 Software Services in any manner that would require CUBE3 or the CUBE3 Software Services to comply with HIPAA, the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, their enabling regulations, or similar state laws or regulations. If Customer transmits or otherwise makes any Protected Health Information available to CUBE3 through the CUBE3 Software Services, Customer will reimburse CUBE3 for any costs that CUBE3 incurs to extract, delete, remove, and otherwise remediate such information from the CUBE3 Software Services. As used in this paragraph, the terms “Business Associate,” “Protected Health Information,” and “Subcontractor” shall have the meanings ascribed to them under HIPAA, the HITECH Act, and their enabling regulations.
7. WARRANTIES. THE CUBE3 CLOUD SERVICES WILL MATERIALLY CONFORM TO THE DOCUMENTATION. IF CUSTOMER BELIEVES THE CUBE3 CLOUD SERVICES DO NOT MATERIALLY CONFORM TO THE DOCUMENTATION, CUSTOMER MUST PROVIDE CUBE3 NOTICE OF SUCH NONCONFORMITY WITHIN THIRTY (30) DAYS OF THE FIRST INSTANCE OF SUCH NONCONFORMITY. CUBE3 WILL HAVE THIRTY (30) DAYS AFTER RECEIVING SUCH NOTICE TO CORRECT SUCH NONCONFORMITY IF CUBE3, IN ITS SOLE DISCRETION, DETERMINES THAT SUCH NONCONFORMITY EXISTS. IF CUBE3 DETERMINES THAT SUCH NONCONFORMITY EXISTS, BUT IS UNABLE TO CORRECT SUCH NONCONFORMITY WITHIN SUCH THIRTY (30) DAY PERIOD, CUSTOMER’S SOLE REMEDY WILL BE TO TERMINATE THIS AGREEMENT AND CUBE3 WILL PROVIDE A REFUND TO CUSTOMER ON A PRO RATA BASIS OF ANY PREPAID FEES PAID BY CUSTOMER FOR THE REMAINDER OF THE THEN-CURRENT SUBSCRIPTION TERM. THE FOREGOING REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT THE CUBE3 CLOUD SERVICES DO NOT MATERIALLY CONFORM TO THE DOCUMENTATION. EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 7, THE CUBE3 CLOUD SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND CUBE3 HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUBE3 NEITHER WARRANTS THAT THE CUBE3 CLOUD SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER, NOR DOES CUBE3 MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE CUBE3 CLOUD SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT CONTAINED IN OR PROVIDED THROUGH THE CUBE3 CLOUD SERVICES. USE OF ANY MATERIAL AND DATA OBTAINED THROUGH THE USE OF THE CUBE3 CLOUD SERVICES SHALL BE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S (OR ANY OTHER USER’S) COMPUTER SYSTEM, MOBILE DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE CUBE3 CLOUD SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL OR DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CUBE3, ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY. ANY USE OF THE CUBE3 CLOUD SERVICES IS AT CUSTOMER’S OWN RISK. CUBE3 shall not be responsible for ensuring and does not represent or warrant that: (i) the CUBE3 Software Services will meet Customer’s requirements; or (ii) all deficiencies in the CUBE3 Software Services can be found or corrected. CUBE3 will not be responsible for any loss or corruption of data.
8. INDEMNIFICATION. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CUBE3, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, CLIENTS, SUPPLIERS, RESELLERS, AND LICENSORS, FROM AND AGAINST ANY AND ALL COSTS, FEES, LOSS, CLAIM OR LIABILITY (INCLUDING WITHOUT LIMITATION ALL ATTORNEYS’ FEES AND EXPENSES) WHICH THEY MAY INCUR IN CONNECTION WITH (A) CUSTOMER’S BREACH OF THIS AGREEMENT OR ANY OTHER RULES OR GUIDELINES PROVIDED TO CUSTOMER BY CUBE3, OR (B) CUSTOMER’S USE OF THE CUBE3 CLOUD SERVICES.
9. LIMITATION OF LIABILITY.
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL CUBE3, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, CLIENTS (OTHER THAN CUSTOMER), SUPPLIERS, RESELLERS, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST, CORRUPTED, OR STOLEN DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE CUBE3 CLOUD SERVICES, REGARDLESS OF WHETHER CUBE3 HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUBE3’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT AND THE CUBE3 CLOUD SERVICES SHALL IN NO EVENT EXCEED THE CHARGES AND FEES PAID BY CUSTOMER DURING THE THREE (3) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF CUBE3 WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. CUBE3 HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE CUBE3 CLOUD SERVICES PROVIDED FOR IN THIS AGREEMENT.
9.3 CUBE3 acknowledges that some jurisdictions do not allow for the inclusion of implied warranties or limitation of liability for incidental or consequential damages, and as such some of the above limitations may not apply to Customer. IN JURISDICTIONS THAT DO NOT RECOGNIZE IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY, CUBE3’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.4 Customer acknowledges that any and all claims or damages that Customer may have against CUBE3 shall only be enforceable against CUBE3 and not other entities, its officers, directors, representatives or agents.
10. TERM AND TERMINATION.
10.1 Term. The Agreement shall commence on the date of Customer’s agreement to these Terms and shall continue for the time period set forth in or described on the Portal or Order Form as applicable (“Initial Term”). The Agreement shall renew automatically for additional one (1) year periods (each a “Renewal Term”) unless a party provides the other party with written notice of its intention not to renew the Agreement at least sixty (60) days prior to the expiration of the then-current Term (“Non-Renewal Notice”). In the event a party provides a Non-Renewal Notice pursuant to this Agreement, the Agreement shall expire on the last day of the then- current Term (“Expiration Date”). The Initial Term, together with each Renewal Term, is hereinafter referred to as the “Term.”
10.2 Termination. This Agreement and any Order Form may be terminated by either party (the “Non-breaching Party”) effective immediately upon written notice containing an explanation of the alleged breach to the other party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement, and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party; provided, however, that if such breach is not capable of being cured, this Agreement and any Order Form shall terminate immediately upon the Breaching Party receiving notice of such breach from the Non-breaching Party. Anything in this Agreement to the contrary notwithstanding, CUBE3 may terminate this Agreement, and Customer’s use of the CUBE3 Software Services, at any time and for any (or no reason) if Customer is using a free plan or version of the CUBE3 Software Services.
10.3 Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event (a) that the other party becomes insolvent or unable to pay its debts when due; (b) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against the other party, such petition is not removed within ninety (90) days after such filing; (c) the other party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of the other party’s creditors.
10.4 Suspension of Services. CUBE3 may cancel or suspend all Users’ access to the CUBE3 Software Services if: (a) a reasonable threat to the technical security or technical integrity of the CUBE3 Software Services exists; provided that CUBE3 promptly recommences performance upon the cessation of the threat; (b) CUBE3 believes that Customer has breached any representation, warranty, or covenant in this Agreement; (c) CUBE3 believes that Customer is directly or indirectly rendering services to any third party for the purposes of competing with CUBE3; or (d) any amount due under this Agreement (including any then-effective Order Form) is not received by CUBE3 within thirty (30) days after it was due.
10.5 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to CUBE3 prior to the effective date of termination. In the event of termination by Customer pursuant to Section 10.2 or 10.3, promptly after the effective date of such termination, CUBE3 shall refund to Customer on a pro-rata basis any prepaid fees paid by Customer for the remainder of the then current subscription term under the terminated Order Forms. In the event of termination by CUBE3 pursuant to Section 10.2, 10.3, or 10.4, all amounts payable by Customer under this Agreement and all Order Forms will become immediately due and payable.
10.6 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the CUBE3 Software Services will immediately terminate, Customer and its Users will immediately cease all use of the CUBE3 Software Services, and each party will destroy and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. For the avoidance of doubt, upon the termination or expiration of this Agreement, Customer shall remove and delete any and all CUBE3 Services Code from all of its software programs and applications. Without limiting the generality of the foregoing, Customer’s right to use the CUBE3 Software Services under a particular Order Form is based upon the terms and conditions of that Order Form in addition to the terms and conditions of this Agreement. Accordingly, upon the expiration or termination of an Order Form, Customer’s right to use the Services under that Order Form will also terminate.
10.7 Survival. Sections 1, 3.4, 3.7, 5, 6, 7, 8, 9, 10, 11, 12 and, to the extent provided therein, the DPA, shall survive any termination or expiration of this Agreement.
11. RESELLER ORDERS.
11.1 Reseller Orders. If Customer orders the CUBE3 Software Services from an authorized non-affiliated third-party reseller (“Reseller”), then this Section 11 (Reseller Orders) will apply and prevail over any conflicting terms in this Agreement.
11.2 Reseller Payments. The fees for the CUBE3 Software Services will be set between Customer and Reseller. Customer will make payments of fees directly to Reseller under its agreement with Reseller (“Reseller Agreement”).
11.3 Reseller as Administrator. At Customer’s discretion, Reseller may have access to Customer’s account, Access Credentials, and Customer Inputs. As between CUBE3 and Customer, Customer is solely responsible for: (a) any access by Reseller to Customer’s account, Access Credentials, or Customer Inputs, (b) defining in the Reseller Agreement any rights or obligations as between Reseller and Customer with respect to the CUBE3 Software Services.
11.4 Reseller Technical Support. Customer acknowledges and agrees that Reseller will be responsible for providing First-Level Support (as defined below) for the CUBE3 Software Services. Reseller may disclose Customer Inputs and Customer Confidential Information to CUBE3 as reasonably required in order for Reseller to handle any support issues that Customer escalates to or via Reseller. As used herein, the term “First-Level Support” means the identification, diagnosis, and correction of user issues or problems with the CUBE3 Software Services by the provision of the following support services by help-desk technicians, prior to the elevation of such support to any CUBE3 personnel: (a) telephone, email, and/or chat assistance; and (b) access to technical information on the CUBE3 website for proper use of the CUBE3 Software Services.
11.5 Disclosure of Confidential Information to Reseller. CUBE3 may share Customer Confidential Information and Customer Inputs with Reseller as reasonably necessary to provide and support the CUBE3 Software Services. Customer hereby authorizes such sharing pursuant to Section 6 (Confidentiality).
12.1 Governing Law; Arbitration.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, U.S.A., without reference to conflicts of laws provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. Any dispute or claim arising out of, or in connection with, the Agreement shall be finally settled by binding arbitration in [Raleigh, NC, USA], in accordance with the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of Delaware, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. Customer agrees that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys’ fees. The foregoing agreement to arbitration includes all claims of any type, including all common law and/or statutory claims under local, state, or federal law. In the event that the above arbitration provision is held invalid or unenforceable, then any dispute with respect to the Agreement shall be brought and heard either in the Norh Carolina state courts located in Raleigh, NC, or the federal district court located in Raleigh, NC. In such event, Customer consents to the in personam jurisdiction and venue of such courts. Customer agrees that service of process upon Customer in any such action may be made if delivered in person, by courier service, by email, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt; provided, that with respect to notice sent by email, notice shall be deemed effectively given upon CUBE3’s sending of such notice, if such email is not returned to sender or notice is not otherwise returned to CUBE3 that the email is undeliverable.
Notwithstanding anything herein to the contrary, if either party seeks preliminary injunctive relief to protect its rights, then such party will have the power, without waiving this arbitration agreement, to invoke the jurisdiction of a court of competent jurisdiction for the exclusive purpose of obtaining such preliminary injunctive relief, and for such purpose each party hereby consents to the jurisdiction of, and the laying of venue in, the state and federal courts sitting in Raleigh, NC. Each party hereby waives and agrees not to assert, to the fullest extent permitted by applicable law, any claim that (i) such party is not subject to the jurisdiction of such courts, (ii) venue in such courts is improper, (iii) any proceeding allowed by this paragraph commenced in such courts is brought in an inconvenient forum, and (iv) that any action by a party to seek preliminary injunctive relief in such courts is a waiver of such party’s right to enforce this arbitration agreement.
(d) BY ENTERING INTO THIS ARBITRATION AGREEMENT, CUSTOMER AND CUBE3 AGREE THAT EACH MAY BRING CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in a court of competent jurisdiction. All other claims will be arbitrated.
12.2 Export; Anti-Corruption. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the CUBE3 Software Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit its Users to access or use CUBE3 Software Services in violation of any U.S. export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of CUBE3’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify CUBE3.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.5 Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the schedules, annexes, and documents referenced herein and all Order Forms hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Except as provided in this Agreement, no modification, amendment, or waiver of any provision of this Agreement (or any Order Form) shall be effective unless in writing and signed by both parties (which may include electronic signatures and/or acceptance of such amendments or waivers via a “click-through” or other similar form of electronic acceptance as provided in herein). Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by CUBE3 with respect to future functionality or features for the CUBE3 Software Services. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.6 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. If an event of force majeure prevents CUBE3 from providing the CUBE3 Software Services for thirty (30) days, Customer may cancel this Agreement and receive a refund of pre-paid fees paid for that period of time for which services are not provided.
12.8 Independent Contractors. CUBE3’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
12.9 Notices. All notices provided by CUBE3 to Customer under this Agreement may be delivered in writing (a) by electronic mail to the electronic mail address provided by Customer when signing up for the CUBE3 Software Services; or (b) delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service. All notices provided by Customer to CUBE3 under this Agreement may be delivered in writing(a) by electronic mail to firstname.lastname@example.org; or (b) delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to the service address of:
CUBE Security Inc. Attn: Legal Department 3000 El Camino Real Building 4, Suite 200
Palo Alto, California, 94306 United States of America
12.10 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole, and (v) references to “Sections” or “Subsections” in this Agreement refer to sections and subsections of this Agreement, and (vi) references to “Sections” in the DPA refer to sections of the DPA. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
Last Updated: July 3, 2023 (the “Effective Date”)