Terms and Conditions
of Sale
I. General Terms of Use for Sale of Services
II. General Terms and Conditions for Sale of Products
I. General Terms of Use for Sale of Services
CUBEWORKS, INC. (“SELLER”)
GENERAL TERMS OF USE FOR SALE OF SERVICES
UNLESS THE PARTIES ENTER INTO A SEPARATE WRITTEN AGREEMENT THAT EXPRESSLY SUPERSEDES THESE GENERAL TERMS OF USE, THE FOLLOWING SHALL BE THE ONLY TERMS AND CONDITIONS THAT WILL APPLY TO THE SALE OF SERVICES BY SELLER.
Software Services –PLEASE READ THESE TERMS OF USE (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF CUBEWORKS, INC. (“COMPANY”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”), THE INFORMATION ON THE WEBSITE, ANY COMPANY SOFTWARE APPLICATIONS OR MOBILE APPLICATION (“MOBILE APP”), AND THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR THE MOBILE APP (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), ARE CONTROLLED BY COMPANY. THESE TERMS OF USE ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”), GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, DOWNLOADING OR USING THE MOBILE APP, CLOUD APP OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR SUCH LEGAL ENTITY, AS APPLICABLE. IF YOU, OR IF APPLICABLE, SUCH LEGAL ENTITY, DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU, AND IF APPLICABLE, SUCH LEGAL ENTITY, MAY NOT ACCESS OR USE ANY OF THE SERVICES. PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. PLEASE BE AWARE THAT SECTION 1.5 (COMPANY COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, COMPANY WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE AT THE WEBSITE AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE WEBSITE AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF COMPANY PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH COMPANY MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT COMPANY’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
1. USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Unless subject to a separate license between you and Company, your right to use any and all Services is subject to the Agreement.
1. Mobile App License. Subject to your compliance with the Agreement, Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mobile App on a single mobile device that you own or control and to run such copy of the Mobile App solely for your own personal or internal business purposes. Furthermore, with respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Mobile App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of such Google Play Sourced Application on a shared basis within your designated family Group.
2. Company Software. Use of any software and associated documentation, other than the Mobile App, that is made available via the Services (“Software”) is governed by the Agreement. Subject to your compliance with the Agreement, Company grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under open source licenses that we will make available to you upon your request. There may be provisions in the open source licenses that expressly override some of these terms.
3. Updates. You understand that the Services are evolving. As a result, Company may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Company may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
4. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Company, its suppliers and service providers reserve all rights not granted in the Agreement.
5. Company Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Company and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2. REGISTRATION
1. Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Company through the Services (“Account”) or has an account with the provider of the Mobile App for the user’s mobile device.
2. Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Company immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Company, or if you have been previously banned from any of the Services.
3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.
4. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Mobile App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3. RESPONSIBILITY FOR CONTENT.
1. Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Company, are similarly responsible for all Content that you and they make available through the Services (“User Content”).
2. No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen User Content, although Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to Company’s monitoring of Your Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any of Your Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable.
3. Storage. Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content. Company has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for choosing the appropriate level of access to Your Content. If you do not so choose, the Services may default to the most permissive setting. You agree that Company retains the right to create reasonable limits on Company’s use and storage of User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Company in its sole discretion.
4. OWNERSHIP.
1. Services. Except with respect to Your Content and other User Content, you agree that Company and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Company software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
2. Trademarks. Company’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Company and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3. Your Content. Company does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
4. License to Your Content. Subject to any applicable Account settings that you select, you grant Company a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users and (in an anonymized manner) to improve, evaluate, and report on Company’s services and product offerings. You agree that you, not Company, are responsible for all of Your Content.
5. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content.
6. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Company’s business.
5. USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Company’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Company; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
6. FEES AND PURCHASE TERMS.
1. General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. In no way are the fees paid by you under the Agreement considered payment for the sale, license, or use of Company’s Software, and, furthermore, any use of Company’s Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
2. Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”), if any, at the time you create your Account and select your payment package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Company for the Services until Company accepts your order by a confirmatory e- mail, SMS/MMS message, or other appropriate means of communication.
3. Payment. If applicable, you agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (each, a “Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Payment Provider with your credit card number or PayPal account and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Payment Provider of any change in your billing address or the credit card or PayPal account used for payment hereunder. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
4. Taxes. The payments required under Section 6.2 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under the Agreement. If Company determines it has a legal obligation to collect a Sales Tax from you in connection with the Agreement, Company may collect such Sales Tax in addition to the payments required under Section 6.2 (Service Subscription Fees) of the Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense Company may incur in connection with such Sales Taxes. Upon Company’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5. Withholding Taxes. You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
6. Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Company to have the charges reversed.
7. INDEMNIFICATION. You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
8. DISCLAIMER OF WARRANTIES AND CONDITIONS.
1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. This Section 8 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased through the Services. (a) COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. (b) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. (c) FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
3. Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
9. LIMITATION OF LIABILITY.
1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
2. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE THREE(3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
3. User Content. EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
4. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
10. MONITORING AND ENFORCEMENT. Company reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Company; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. If Company becomes aware of any possible violations by you of the Agreement, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Company’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Company, its Registered Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
11. TERM AND TERMINATION.
1. Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
3. Termination of Services by Company. You will have thirty (30) days from the Service Commencement Date, for any Services hereunder, to cancel such Service, in which case Company will refund your Service Subscription Fee, if already paid pursuant to Section 6.3 (Payment) or 6.2 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.
4. Termination of Services by You. If you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Company’s address set forth below.
5. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
6. No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Company community, is discontinued by Company due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re- register with or access the Services or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Company intends to announce such Services or Content in your country. The Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent The Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801, County of New Castle. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to Jams’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are Frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
4. Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE 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 section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [insert email address], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
7. Severability. Except as provided in Section 13.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: 1600 Huron Pkwy, OFC 520-2364, Ann Arbor, MI 48105.
14. THIRD-PARTY SERVICES.
1. App Stores. You acknowledge and agree that the availability of the Mobile App and the Services is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Company and not with the App Store. Company, not the App Store, is solely responsible for the Services, including the Mobile App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
2. Accessing and Downloading the Mobile App from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: (a) You acknowledge and agree that (i) the Agreement is concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. (b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. (c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company. (d) You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. (e) You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
6. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
7. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
15. GENERAL PROVISIONS.
1. ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
2. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in DELAWARE.
3. Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit the Services or send Company e-mails, or whether Company posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
4. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
5. Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
6. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: legal@cubeworks.io. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
7. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
8. Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: 1600 Huron Pkwy, OFC 520-2364, Ann Arbor, MI 48105. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
9. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
11. Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
13. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
16. INTERNATIONAL PROVISIONS. The following provisions shall apply only if you are located in the countries listed below.
1. United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
2. Germany. Notwithstanding anything to the contrary in Section 9 (Limitation of Liability), Company is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
II. General Terms and Conditions for Sale of Products
CUBEWORKS, INC. (“SELLER”)
GENERAL TERMS AND CONDITIONS FOR SALE OF PRODUCTS
UNLESS THE PARTIES ENTER INTO A SEPARATE WRITTEN AGREEMENT THAT EXPRESSLY SUPERSEDES THESE GENERAL TERMS AND CONDITIONS, THE FOLLOWING SHALL BE THE ONLY TERMS AND CONDITIONS THAT WILL APPLY TO THE SALE OF PRODUCTS BY SELLER (THE “GENERAL TERMS”):
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, COMPANY WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE AT THE WEBSITE AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE GENERAL TERMS. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE WEBSITE AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY MATERIAL CHANGES TO THE AGREEMENT UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE GENERAL TERMS, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF COMPANY PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH COMPANY MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT COMPANY’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
1. Acceptance. Any of the following acts shall constitute Buyer’s acceptance of all terms and conditions herein: (a) Seller’s receipt of an order signed by Buyer or other written indication of acceptance (an “Order”), (b) Buyer directs Seller to commence any of the work or services identified in the Order; or (c) Buyer accepts delivery of any of the products identified in the Order (the “Products”). Upon acceptance, the Order and these General Terms and Conditions shall become a valid and binding agreement between Buyer and Seller. Any additional or different terms and conditions contained in any pre-Order documents are nullified and shall have no binding effect with respect to any purchases of Products made pursuant to the Order. Seller specifically rejects any attempt by Buyer to include different or additional terms of sale at any time and only Seller’s signed consent will bind it to any different or additional terms hereinafter transmitted in any form by the Buyer.
2. Delivery/Risk of Loss/ Security Interest: Prices are FCA (Seller’s Premises) Incoterms® 2020. Title to products will transfer at Seller’s dock and all orders are subject to approval and final acceptance by Seller. Delivery of the products to a carrier properly addressed for transmission to the Buyer or its designated agent shall constitute delivery to the Buyer, who shall thereupon assume and bear all risk of loss or damage from any cause whatsoever. Any claim for loss or damage in transit must be prosecuted by the Buyer. If Buyer provides no carrier or routing instructions, the Seller shall have absolute discretion as to mode and routing of shipments. Buyer hereby grants Seller a security interest in the goods sold hereunder, securing Buyer’s obligation of payment therefor. Buyer shall bear all import/export clearance responsibilities, Customs duties, personal property taxes and similar charges assessable or assessed on Products after title and risk of loss pass to Buyer. Buyer agrees that it will not export or reexport or otherwise transfer any products or technical data provided hereunder to any country, person, entity or end-user subject to U.S. export restrictions. Buyer specifically agrees not to export or reexport any products or technical data provided hereunder (i) to any country or party to which the United States has at the time of the transfer embargoed or restricted the export or reexport of the relevant products or services; (ii) to any end-user who the Buyer knows will utilize any of the products or technical data in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. Buyer agrees that the Seller may periodically request, and Buyer shall provide, written certification that Buyer has complied with all export control laws and trade sanctions including U.S. export control laws and trade sanctions. Any violation of this Section, as determined solely by the Seller, shall be deemed a material breach of this Agreement. Seller reserves the right to refuse to enter into or perform any Order, and to cancel any Order, placed under this Agreement if Seller in its sole discretion determines that the entry into such order or the performance of the transaction to which such order relates would violate any applicable law or regulation of the United States, or any other government. Buyer also agrees that any such refusal or cancellation by Seller will not constitute a breach of any obligation under this Agreement and hereby waives any and all claim against Seller for any loss, cost or expense, including consequential damages, that Buyer may incur by virtue of such refusal or cancellation. If any sales, use, value-added or similar taxes, whether federal, state, local or foreign, are lawfully imposed on Seller in connection with sales of products to Buyer under this Agreement or Order, Buyer shall pay the full amount thereof to Seller in addition to and concurrently with payment for the related products, but no discount with respect to such taxes shall be permitted to, or taken by, Buyer. Each party shall be responsible for and bear any income or similar taxes assessed against it by reason of its receipt of moneys or value pursuant to this Agreement or Order.
3. Price/Taxes: The prices contained in the Order are firm for ninety (90) days from the date quoted, subject to change thereafter on seven (7) days written notice. Except where otherwise prohibited by law, all privilege, personal property, excise, sales, duties, levies, use and other taxes, which Seller may be required to pay or collect, shall be in addition to the price stated and shall be paid by Buyer. Prices do not include transportation charges, unless otherwise provided on the reverse side hereof. Prices quoted hereunder are subject to increase sufficient to compensate for any tax, duty or levy hereafter imposed by any governmental authority, or for any increase in price for the manufacture of the products ordered herein as a result of any change in the cost of raw materials.
4. Buyer changes and Delays: Buyer shall pay Seller for all work required as a result of any Buyer changes in quantity, time, testing, packaging, materials, dimensions, drawings, specifications and delivery terms. Buyer shall pay Seller an equitable adjustment to the sales price under this Order and times for performance for all work required as a result of any Buyer changes to this Order. Any Buyer changes must be in writing signed by Buyer’s authorized representative, and Buyer will not unreasonably withhold or delay consent to a proposed Seller change. If Buyer requests or otherwise causes delay in the manufacture, assembly or shipment of the goods contemplated herein, Buyer shall pay Seller for all costs, expenses and damages incurred by Seller as a result thereof, including, but not limited to, any incidental and consequential damages; handling and storage expenses.\
5. Payment Terms: Net 30 days cash in U.S. funds (unless otherwise agreed to in writing by Seller) including payments for partial shipments. If the balance due is not paid as provided herein, Seller may charge the maximum interest rate as may be provided by law, which fee shall be added to the outstanding balance due. Unless prior arrangements have been made, a stop shipment order may be issued if payment is not received on a timely basis. Buyer also agrees to pay Seller for all reasonable costs and expenses incurred in collecting amounts due and outstanding, including reasonable attorneys’ fees. Payment for the goods and services purchased hereunder shall not be subject to set-off, debit or recoupment
6. Delivery dates: Delivery dates are estimated and not guaranteed. Delivery lead times shall be noted in the Order. Changes to delivery schedules within six (6) weeks of delivery date require prior written approval by Seller. If quantities or delivery schedules are not specified in the Order, they will be as reasonably determined by Buyer and stated in Buyer’s firm releases issued to Seller from time to time. It is expressly understood that there shall be no deferred delivery or cancellation without Seller’s written consent. Buyer agrees to pay Seller all charges to change, expedite or cancel all or any part of the Order. Seller shall not be responsible for any delay in delivery for any unforeseen circumstances, or by circumstances beyond Seller’s control, including, without limitation, government acts, fires, floods, strikes or other labor problems or shortage, embargo, transportation delays, accidents, war, weather conditions, inability to secure raw material. In such circumstances, Seller may terminate this Agreement, at Seller’s option, and without liability therefor. Buyer acknowledges and agrees that if the order cannot be shipped complete, partial shipment will be made and shipment of balance will be as soon as practicable.
7. Packing and Packaging: Seller will pack and ship Products in accordance with sound commercial practices. If Seller is required to use Buyer’s returnable packaging, Seller will be responsible for cleaning and returning the returnable packaging. If Buyer’s returnable packaging is not available, Seller may use expendable packaging and Buyer will reimburse Seller for the reasonable costs of expendable packaging.
8. Inspection and Warranty Terms: Buyer shall inspect the NanoTag Products sold hereunder for any visible defect or non-conformity within seven (7) days after delivery. Buyer must give Seller written notice of any visible defect within seven (7) days of said inspection in order for Buyer to reject any Products sold hereunder by contacting CubeWorks Technical Support by phone at +1 (810) 207-1514 or email at support@cubeworks.io. Buyer will be barred with respect to rejection or any other remedy unless Buyer timely notifies Seller and holds the goods for Seller’s inspection. After acceptance of the Product, Buyer shall give notice of any defects as provided herein.
Seller warrants that the Products manufactured will be in accordance with published specifications (https://www.cubeworks.io/product/nanotag/) and will be of good quality material and workmanship under normal use and service. This Warranty shall extend for a period of twelve (12) months from the date of delivery to Buyer. Seller’s sole liability for warranty claims hereunder shall be to repair or provide a replacement Product, or allow a credit, at Seller’s sole option, for any non-conforming part. Seller shall have no liability to Buyer or any other third party for any indirect, incidental or consequential damages, including but not limited to lost profits, income or opportunity, damage to or loss of property; damages incurred in installation, repair or replacement; loss of use; losses resulting from or related to downtime of Products; the cost of replacement transportation; the cost of substitute products; or claims of Buyer or Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract and/or tort (including negligence, strict liability or otherwise). Replaced parts will be warranted in time only through the remaining period of this Warranty. Seller shall not be obligated to repair or replace any non-conforming part unless it receives notice from Buyer, in writing, within fourteen (14) days of discovery of a defect. Buyer shall be barred from any action for breach of warranty, contract or otherwise, unless Buyer timely notifies Seller as provided herein. Specifically excluded from this Warranty are: (i) design defects or defects or damage caused by improper installation, neglect, improper maintenance, handling or operation of the Products by Buyer or any third party; (ii) Products considered by Seller to be prototype, development or pre-production; (iii) Products that have been subject to damage attributable to or caused by misuse, abuse, or vandalism or any transit related damage; acts of God or insurrection; normal wear and tear; foreign object entry; any part not supplied by Seller; any repair, maintenance or service by anyone other than Seller’s factory-authorized service provider; or any other acts that are beyond Seller’s reasonable control. Further, this Warranty shall not apply if Buyer or any third party attempts to repair or replace the defective part without Seller’s written authorization. Seller expressly disclaims any and all warranties relative to the foregoing circumstances. Any auxiliary equipment sold hereunder and not manufactured by Seller carries only such warranty as given by the manufacturer thereof and which is hereby assigned to Buyer without recourse to Seller. THIS IS SELLER’S SOLE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
9. Samples: Unless Seller otherwise agrees in writing, samples and/or Prototypes are for examination and test purposes only and as such are not covered by Seller’s warranty.
10. Patents and Trademarks: Buyer shall defend and protect Seller in any action, civil or criminal, brought against Seller by any third party, for the unfair competition or for infringement of any domestic or foreign patent, design patent, trademark, copyright, or for any other claim arising out of the manufacture and sale by Seller of any goods which have been manufactured to specifications furnished by Buyer and/or arising out of the reproduction by Seller of the products of any design mark, or emblem furnished or designated by Buyer. Buyer further agrees to hold Seller harmless from all expense, judgment, damages or loss resulting therefrom. The supply of goods to Buyer by Seller shall not cause, vest or establish any right or license in Buyer under any patent or patent application now or hereafter owner or controlled by Seller to make or have made such goods.
11. Indemnification: To the fullest extent permitted by law, Buyer expressly agrees to indemnify and hold harmless Seller, its affiliates, officers, directors, employees, agents, attorneys, successors and assigns (“Indemnified Parties”), and defend the indemnified parties from and against any and all claims, liability, lawsuits, losses, costs, expenses or damages (including reasonable attorneys’ fees) of any kind or nature whatsoever claimed by any person or entity, including employees, servants or agents of Buyer, including without limitation claims for personal injury (including death) or property damage, whether such claims are premised on contract, tort or otherwise, including strict liability, which arise out of or result from, or are in any way connected with any of the work contemplated by this Agreement and/or Products sold hereunder, or if Seller’s employees are injured on Buyer’s premises in connection with this Agreement, except to the extent of Seller’s willful or gross misconduct.
12. Limitation of Liability: Seller’s aggregate liability for any and all claims arising out of this Agreement or the services and/or products sold herein, whether based upon contract, tort, warranty, negligence, indemnity or any other claim, shall be limited to the total compensation received by Seller under the Agreement or Order during the year prior to the event creating such liability under the Agreement or Order AND IN NO EVENT SHALL SELLER BE LIABLE FOR LOST PROFITS OR INCOME, LIQUIDATED, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
13. Force Majeure: Neither party shall be liable for a failure to perform (except for the obligation to pay any amounts due hereunder) that arises from causes or events beyond its reasonable control and without its fault or negligence, including but not limited to, acts of God or the public enemy, actions by any domestic or foreign governmental authority (whether valid or invalid), fires, riots, wars, sabotage, acts of terrorism, labor problems (including lockout strikes and slowdowns), or inability to obtain materials or cross country borders. The affected party shall give written notice of such delay to the other party within ten (10) days of the beginning of the delay.
14. Termination: If Buyer terminates this Order or Agreement for any reason, Buyer will (1) purchase completed Products at the Contract price and work-in-process and raw materials at Seller’s actual cost, in each case to the extent reasonable and authorized in Buyer’s firm releases, and (2) reimburse Seller for reasonable costs actually incurred by Seller as a result of the early termination, including the cost to store the items to be purchased and relocate production to an alternate source and the cost of unreimbursed and unamortized research and development costs, tooling, engineering costs, capital equipment, Seller’s property, supplies and that are unique to the Products and any other reasonable costs and expenses of Seller expended in furtherance of this Agreement or Order.
Buyer will be in default under this Agreement if it (1) fails to perform any obligation under this Agreement and, if the non-performance can be cured, fails to cure the non-performance within thirty (30) business days after notice from Seller specifying the non-performance, (2) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, (3) becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement, (4) fails to provide adequate assurance of performance under this Agreement within three business days after written demand by the other party.
If Buyer is in default under this Agreement or Order, Seller may recover damages resulting from the default, including (i) the Contract price for completed Products and Services and the cost of work-in-process and raw materials, and (ii) the cost of unreimbursed and unamortized research and development, capital equipment, Seller’s property, and supplies that are unique to the Products .
In addition, Seller may terminate this Agreement or Order upon giving at least 60 days notice to Buyer, without liability to Buyer, if Buyer (i) sells, or offers to sell, a material portion of its assets or (ii) sells or exchanges, or offers to sell or exchange, or causes to be sold or exchanged, a sufficient amount of its stock or other equity interests that effects a change in the control of Buyer or (iii) executes, or otherwise becomes subject to, a voting or other agreement or trust that effects a change in the control of Buyer.
15. Governing Law, Fees, Venue and Statute of Limitations: This Agreement has been made in and is governed by the substantive laws, exclusive of choice of law provisions, of the State of Delaware. Both parties agree that the forum and venue for any legal action or proceeding concerning this Agreement will lie in the appropriate federal or state courts in the State of Delaware and specifically waives any and all objections to such jurisdiction and venue. Buyer consents that such Delaware courts have personal jurisdiction over Buyer with respect to any such action. Buyer shall pay Seller’s reasonable attorneys fees, expenses and costs incurred in enforcing any of the provisions of this Agreement. Any legal action by Buyer which alleges breach of warranty or other breach, default or tortious act by Seller, must be brought by any Buyer, or any other person making a claim under this Agreement, within 2 years after the date of receipt of the product(s) sold herein, or one year after such person could reasonably have discovered the basis for the action, whichever comes first.
16. Assignment: Seller may not assign this Agreement, in whole or in part, without the prior written consent of the Buyer, which consent shall not be unreasonably withheld. This Agreement shall be binding upon the parties hereto and their successors, and permitted assigns.
17. Relationship of the Parties: Buyer and Seller are independent contractors, and nothing in this Agreement makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
18. No Waiver by Seller: Any failure by Seller to enforce strict performance of any provision of this Agreement will not constitute a waiver of Seller’s right to subsequently enforce such provision or any other provision of this Agreement.
19. Seller’s Rights: The rights and remedies reserved by Seller herein shall be cumulative and additional to all other rights and remedies to Seller in law or equity.
20. Integrated Agreement: The terms and conditions herein are intended by Seller and Buyer as a final expression and as a complete and exclusive statement of the terms of this Agreement. This Agreement supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may not be modified, cancelled, or rescinded, except by the written agreement of Buyer and Seller.
21. Unenforceable Terms: If any provision of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement will remain in full force and effect.