Terms of Service

AGREEMENT

CUBE SECURITY INC. AND ITS AFFILIATES (COLLECTIVELY OR INDIVIDUALLY AS APPLICABLE, “CUBE AI”, “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 CUBE AI 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 CUBE AI AND CUSTOMER. IF YOU USE THE PORTAL AND/OR THE CUBE AI 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 CUBE AI 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 CUBE AI CLOUD SERVICES ONLY FOR BUSINESS OR PROFESSIONAL PURPOSES.

CUBE AI RESERVES THE RIGHT AT ANY TIME TO CHANGE, ADD, OR DELETE PORTIONS OF THESE TERMS OF SERVICE. CUBE AI 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 CUBE AI CLOUD SERVICES BY CUBE AI, AND CUSTOMER'S SOLE REMEDY FOR LOSS OF USE OF THE CUBE AI CLOUD SERVICES IN SUCH CASE WILL BE TO CEASE USING THE CUBE AI CLOUD SERVICES.

1. DEFINITIONS

“Access Credentials”

Login information, passwords, security protocols, and policies through which Users access and use the CUBE AI Cloud Services.

“Admin User”

The employees and/or contractors of Customer who are designated to be Administrative Users and have the ability to issue Access Credentials.

“Blockchain Data”

Data contained in or associated with a decentralized public ledger associated with blockchain technology, including smart contract addresses, cryptocurrency wallet addresses, and other information or data relating to smart contract or cryptocurrency transactions, including transaction IDs, transaction hashes, and amounts for transactions.

“CUBE AI Analytics”

Any information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by the CUBE AI Cloud Services, including without limitation as derived from aggregated anonymized inputs to, and usage of, the CUBE AI Cloud Services across all CUBE AI customers. In no event will CUBE AI Analytics include any personally identifiable information or Customer Inputs.

“CUBE AI Cloud Services”

The CUBE AI software as a service offerings, including those designated in the applicable Order Form, and any CUBE AI Data made available by CUBE AI in connection therewith, which are made generally commercially available by CUBE AI as of the Effective Date, and all Updates thereto made generally commercially available by CUBE AI to its customers during the Term.

“CUBE AI Data”

Any data, media, information, or other content made available by CUBE AI to Customer through the CUBE AI Software Services, including without limitation Blockchain Data, risk scores, and other insights generated by the operation of the CUBE AI Cloud Services, but excluding Customer Inputs.

“CUBE AI Services Code”

Any source code or object code that CUBE AI makes available to Customer as part of the CUBE AI Cloud Services, which for the avoidance of doubt includes only computer code that CUBE AI 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 CUBE AI Cloud Services.

“CUBE AI Technology”

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 CUBE AI Cloud Services, including the CUBE AI 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.

“Customer Inputs”

Information, data, text, content, videos, images, audio clips, photos, graphics, and/or other types of content, information and/or data, including without limitation Blockchain Data, posted, provided and/or uploaded to the CUBE AI Cloud Services by Customer.

“Documentation”

Text and/or graphical materials, whether in print or electronic form, that describe the features, functions, and use of the CUBE AI Cloud Services and which are prepared by CUBE AI and made available to Customer, including within the Portal.

“Intellectual Property Rights”

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.

“Order Form”

CUBE AI's standard order form accepted in writing (or electronically) by Customer and CUBE AI, which includes orders placed electronically through the Portal. As part of the sign-up process for the CUBE AI Cloud Services, the Customer will be asked to select a product plan, and the selected product plan will constitute the initial Order Form hereunder.

“Updates”

All upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the CUBE AI Cloud Services made generally commercially available as part of the CUBE AI Cloud Services during the period in which Customer is using the CUBE AI Cloud Services. Updates may also include new features and/or functionality for which CUBE AI reserves the right to charge an additional fee if Customer elects to activate such new features and/or functionality.

“User”

Customer's Admin Users and any other Customer users who have been assigned Access Credentials.

“Effective Date”

The date set out as the Effective Date in the Order Details portion of the Order Form, which initiates the start of the services and any associated billing periods under this Agreement.

2. CUBE AI CLOUD SERVICES

2.1 CUBE AI Cloud Services

Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees (if any), CUBE AI shall make the CUBE AI Cloud 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 CUBE AI Cloud 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 CUBE AI Cloud Services, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. CUBE AI 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 CUBE AI Cloud Services

CUBE AI reserves the right to enhance, improve and modify the CUBE AI Cloud 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) CUBE AI 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 CUBE AI Cloud Services; and (ii) CUBE AI grants to Customer a nonexclusive and nontransferable license to use any CUBE AI 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

If the Customer provides any feedback, suggestions, or other inputs (“Customer Inputs”) to CUBE AI regarding its products, services, or operations, the Customer grants to CUBE AI (i) a non-exclusive, royalty-free license to access, use, and copy the Customer Inputs to provide the CUBE AI Cloud Services to the Customer, and (ii) a non-exclusive, worldwide, irrevocable, perpetual, royalty-free license to access, use, store, analyze, copy, and create derivative works from any Blockchain Data included in the Customer Inputs to provide, improve, enhance, and develop CUBE AI's products and services. As between the Customer and CUBE AI, the Customer retains all right, title, and interest in and to the Customer Inputs and reserves all rights thereto that are not expressly granted to CUBE AI under this Agreement.

CUSTOMER WILL BE RESPONSIBLE FOR MAKING BACK-UP AND ARCHIVAL COPIES OF ALL CUSTOMER INPUTS. IN NO EVENT WILL CUBE AI 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 CUBE AI Cloud Services. CUBE AI 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 CUBE AI Cloud Services, the CUBE AI Technology, the CUBE AI 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 CUBE AI 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 CUBE AI Cloud Services (collectively, “Feedback”), Customer hereby assigns to CUBE AI 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 CUBE AI 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 CUBE AI to Customer in connection with CUBE AI 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 CUBE AI can be accessed by Customer via CUBE AI's website. Any rights associated with any open source program apply to that program only and not to any other programs owned by CUBE AI or its licensors even if distributed together with the open source program.

3.6 Marketing

CUBE AI may publicly refer to Customer as a customer of CUBE AI, including on CUBE AI'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 CUBE AI's software as a service, including on Customer's website.

3.7 Collection and Use of Information

(a) Customer acknowledges that CUBE AI may, directly or indirectly through the services of third parties, collect and store information regarding use of the CUBE AI Cloud Services and about equipment on which the CUBE AI Cloud Services is installed or through which it otherwise is accessed and used and that such information may become part of the CUBE AI Analytics.

(b) Customer acknowledges and agrees that CUBE AI may create, collect, use, and disclose the CUBE AI Analytics for any business purposes, including without limitation to: (i) improve the performance of the CUBE AI Cloud Services or develop updates thereto; and (ii) verify Customer's compliance with the terms of this Agreement and enforce CUBE AI's rights, including all Intellectual Property Rights in and to the CUBE AI Cloud 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 CUBE AI immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security. CUBE AI reserves the right to take any action CUBE AI deems necessary or reasonable to ensure the security of the CUBE AI Cloud 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 CUBE AI Cloud Services. Customer shall use the CUBE AI Cloud 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 CUBE AI Cloud Services available to any third party, other than as expressly permitted by this Agreement; (ii) disrupt any servers or networks connected to the CUBE AI Cloud Services; (iii) attempt to gain unauthorized access to the CUBE AI Cloud Services or the CUBE AI Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the CUBE AI Cloud Services; (v) use the CUBE AI Cloud Services in violation of any applicable law, rule, regulation, or guideline; (vi) attempt to probe, scan, or test the vulnerability of any system or network associated with the CUBE AI Cloud Services or breach any security or authentication measures; (vii) except with respect to the CUBE AI Services Code, copy, distribute, modify, adapt, hack, disassemble, decompile, decode, or reverse engineer to extract any source code from the CUBE AI Cloud Services or CUBE AI Technology; (viii) copy, distribute, modify, adapt, hack, disassemble, decompile, or decode any CUBE AI Services Code except as expressly authorized in writing by CUBE AI; (ix) access or use the CUBE AI Cloud Services or CUBE AI Technology for purposes of competitive analysis or the development of a competing software service or product; or (x) utilize the CUBE AI Cloud Services to send spam, store infringing or unlawful material, or plant malware.

4.3 Restrictions

(a) Customer agrees that, during the period in which Customer is using the CUBE AI Cloud Services and ending on the fourth (4th) anniversary of the last date of Customer's use of the CUBE AI Cloud 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 CUBE AI's RASP (runtime application self-protection) offering; or (ii) interfere with business relationships between CUBE AI and its customers or potential customers. Customer acknowledges and agrees that CUBE AI will suffer irreparable harm in the event that Customer breaches any of Customer's obligations under this Section 4.3(a) and that monetary damages would be inadequate to compensate CUBE AI for such breach.

(b) During the period in which Customer is using the CUBE AI Cloud 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 CUBE AI or any third-party contractor to CUBE AI and involved in any respect with the CUBE AI Cloud Services or the performance of this Agreement.

4.4 Customer Input Restrictions

The CUBE AI Cloud 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; (iv) will not and do not violate Customer's own privacy policy; (v) will not and do not disclose or provide information protected under any law, agreement or fiduciary relationship; (vi) will not and do not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other harmful component; and (vii) will not and do not include any information that can be used to identify an individual natural person, except to the extent such information is inextricable from Blockchain Data.

4.5 Third Party Services

If and to the extent Customer uses the CUBE AI Cloud Services to access or use any third party's websites, platforms, content, products, services, or information (“Third Party Services”), or CUBE AI accesses or uses Third Party Services on Customer's behalf to facilitate the performance of the CUBE AI Cloud Services, Customer shall ensure, and be solely responsible for ensuring, that such access and use 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 subject to a country sanctions program administered and enforced by OFAC; 2) any organization that is operated by a person 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 Payment Terms

All invoices issued by CUBE AI shall be payable within thirty (30) days from the invoice date (“Net 30”). This net payment term applies to all charges including fees for the elected or upgraded version of the CUBE AI Cloud Services, as well as any additional charges incurred through the use of cloud-computing and cloud-storage providers.

5.2 Fees

Customers electing to use the CUBE AI Cloud Services must pay the fees as detailed in each Order Form. These fees must be paid in accordance with the payment schedule set forth in the Order Form, as applicable, and are payable in U.S. dollars. All fees are non-refundable and exclusive of all sales, use, value-added, and other taxes. Late payments are subject to an interest charge of one percent (1.0%) per month, or the maximum rate permitted by applicable law, whichever is less.

5.3 Taxes

Customer will make all payments to CUBE AI free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to CUBE AI, other than taxes on CUBE AI's income, will be Customer's sole responsibility, and if requested by CUBE AI, Customer will provide CUBE AI with official receipts issued by the appropriate taxing authority, or such other evidence as CUBE AI 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 CUBE AI Cloud Services, CUBE AI Services Code, and the CUBE AI Technology constitutes Confidential Information of CUBE AI 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.

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.

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.

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; 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 CUBE AI any “Protected Health Information” as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Customer agrees that CUBE AI is not a “Business Associate” or “Subcontractor” under HIPAA, and Customer shall not use the CUBE AI Cloud Services in any manner that would require CUBE AI or the CUBE AI Cloud 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.

6.7 Data Protection

To the extent that Blockchain Data included in Customer Inputs or CUBE AI Data includes or constitutes “Personal Data” under applicable privacy or data protection laws, including without limitation and as applicable Regulation (EU) 2016/679 (General Data Protection Regulation) (“GDPR”), the parties agree that Customer and CUBE AI separately (and not jointly) determine the purposes and means of processing of such Personal Data. Customer shall (i) comply with all applicable privacy and data protection laws (including GDPR) with respect to its provision of Customer Inputs to CUBE AI for the purposes contemplated by these Terms of Service and its use of the CUBE AI Cloud Services, and (ii) cooperate with CUBE AI to assist CUBE AI in fulfilling any of CUBE AI's obligations under applicable privacy and data protection laws with respect to CUBE AI's processing of Customer Inputs and provision to Customer of CUBE AI Data hereunder.

7. DATA RETENTION

For the purpose of maintaining the integrity of our services, transactions processed through our platform are categorized into Unsafe, Warning, and Safe transactions. Unsafe and Warning transactions are retained indefinitely to support security measures and investigations. Safe transactions are subject to retention limits based on the user's subscription plan: up to 10,000 transactions for users on the Free Plan and up to 100,000 transactions for users on the Pro Plan. Once these limits are exceeded, older transactions are automatically deleted on a rolling basis to make room for new ones. We reserve the right to modify this policy at any time, and changes become effective immediately upon posting. Continued use of our services after changes to the policy constitutes acceptance of the new terms.

8. WARRANTIES

THE CUBE AI CLOUD SERVICES WILL MATERIALLY CONFORM TO THE DOCUMENTATION. IF CUSTOMER BELIEVES THE CUBE AI CLOUD SERVICES DO NOT MATERIALLY CONFORM TO THE DOCUMENTATION, CUSTOMER MUST PROVIDE CUBE AI NOTICE OF SUCH NONCONFORMITY WITHIN THIRTY (30) DAYS OF THE FIRST INSTANCE OF SUCH NONCONFORMITY. CUBE AI WILL HAVE THIRTY (30) DAYS AFTER RECEIVING SUCH NOTICE TO CORRECT SUCH NONCONFORMITY IF CUBE AI, IN ITS SOLE DISCRETION, DETERMINES THAT SUCH NONCONFORMITY EXISTS. IF CUBE AI 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 CUBE AI 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.

EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION, THE CUBE AI 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 CUBE AI HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUBE AI NEITHER WARRANTS THAT THE CUBE AI CLOUD SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER, NOR DOES CUBE AI MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE CUBE AI CLOUD SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT CONTAINED IN OR PROVIDED THROUGH THE CUBE AI CLOUD SERVICES.

9. INDEMNIFICATION

CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CUBE AI, 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 CUBE AI, OR (B) CUSTOMER'S USE OF THE CUBE AI CLOUD SERVICES.

10. LIMITATION OF LIABILITY

10.1

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL CUBE AI, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, CLIENTS, 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 CUBE AI CLOUD SERVICES, REGARDLESS OF WHETHER CUBE AI HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2

CUBE AI'S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT AND THE CUBE AI 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 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 CUBE AI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.

10.3

CUBE AI 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, CUBE AI'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10.4

Customer acknowledges that any and all claims or damages that Customer may have against CUBE AI shall only be enforceable against CUBE AI and not other entities, its officers, directors, representatives or agents.

11. TERM AND TERMINATION

11.1 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 in 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”). The Initial Term, together with each Renewal Term, is hereinafter referred to as the “Term.”

11.2 Termination

This Agreement and any Order Form may be terminated by either party effective immediately upon written notice containing an explanation of the alleged breach to the other 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; provided, however, that if such breach is not capable of being cured, this Agreement shall terminate immediately upon the Breaching Party receiving notice of such breach. Notwithstanding any other provision, CUBE AI may terminate this Agreement at any time and for any (or no) reason by providing thirty (30) days' written notice to Customer.

11.3 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.

11.4 Suspension of Services

CUBE AI may cancel or suspend all Users' access to the CUBE AI Cloud Services if: (a) a reasonable threat to the technical security or technical integrity of the CUBE AI Cloud Services exists; (b) CUBE AI believes that Customer has breached any representation, warranty, or covenant in this Agreement; (c) CUBE AI believes that Customer is directly or indirectly rendering services to any third party for the purposes of competing with CUBE AI; or (d) any amount due under this Agreement is not received by CUBE AI within thirty (30) days after it was due.

11.5 Outstanding Fees

Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to CUBE AI prior to the effective date of termination. In the event of termination by Customer pursuant to Section 11.2 or 11.3, promptly after the effective date of such termination, CUBE AI 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.

11.6 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 CUBE AI Cloud Services will immediately terminate, Customer and its Users will immediately cease all use of the CUBE AI Cloud 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 CUBE AI Services Code from all of its software programs and applications.

11.7 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.

12. RESELLER ORDERS

12.1 Reseller Orders

If Customer orders the CUBE AI Cloud Services from an authorized non-affiliated third-party reseller (“Reseller”), then this Section 12 (Reseller Orders) will apply and prevail over any conflicting terms in this Agreement.

12.2 Reseller Payments

The fees for the CUBE AI Cloud Services will be set between Customer and Reseller. Customer will make payments of fees directly to Reseller under its agreement with Reseller (“Reseller Agreement”).

12.3 Reseller as Administrator

At Customer's discretion, Reseller may have access to Customer's account, Access Credentials, and Customer Inputs. As between CUBE AI 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 CUBE AI Cloud Services.

12.4 Reseller Technical Support

Customer acknowledges and agrees that Reseller will be responsible for providing First-Level Support for the CUBE AI Cloud Services. Reseller may disclose Customer Inputs and Customer Confidential Information to CUBE AI as reasonably required in order for Reseller to handle any support issues that Customer escalates to or via Reseller.

12.5 Disclosure of Confidential Information to Reseller

CUBE AI may share Customer Confidential Information and Customer Inputs with Reseller as reasonably necessary to provide and support the CUBE AI Cloud Services. Customer hereby authorizes such sharing pursuant to Section 6 (Confidentiality).

13. GENERAL

13.1 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.

BY ENTERING INTO THIS ARBITRATION AGREEMENT, CUSTOMER AND CUBE AI 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.

13.2 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 CUBE AI Cloud 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 CUBE AI Cloud Services in violation of any U.S. export embargo, prohibition or restriction.

13.3 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.

13.4 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.

13.5 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. Except as provided in this Agreement, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.

13.6 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 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.

13.7 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. If an event of force majeure prevents CUBE AI from providing the CUBE AI Cloud 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.

13.8 Independent Contractors

CUBE AI'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.

13.9 Notices

All notices provided by CUBE AI 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 CUBE AI Cloud 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 CUBE AI under this Agreement may be delivered in writing (a) by electronic mail to legal@cube3.ai; or (b) delivered by registered or certified mail to:

CUBE Security Inc. Attn: Legal Department
3000 El Camino Real Building 4, Suite 200
Palo Alto, California, 94306
United States of America

13.10 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,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole.