PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, INCLUDING LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU.
This Service Agreement and any documents expressly incorporated by reference herein (collectively, the “Agreement”) supplements our Website Terms of Use (available at https://www.Cloudboxapp.com/policy/terms-of-service) and governs all access to and use of hardware products, as outlined in Exhibit A, and software services provided by Triton Equities, LLC, doing business as Cloudbox (referred to herein as “Provider”) through the Internet or other authorized network (the “Services”). By purchasing, subscribing, accessing or otherwise using the Services, you (referred to herein as “Customer”) agree to be bound by this Agreement, which is effective upon the earliest date of purchase, subscription, access, or use of the Services (the “Effective Date”).
In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Provider and Customer (each a “Party” and collectively the “Parties”) agree to the following Terms & Conditions.
“Self-Service Subscription” means a subscription to the Services purchased directly by Customer through Provider’s website or application, using an online registration and payment process, without a signed Purchase Order.
“Enterprise Subscription” means a subscription to the Services purchased through a Purchase Order or other ordering document executed by both Parties.
Acceptance. Customer accepts this Agreement by executing a Purchase Order, by clicking to accept during account registration or checkout, or by accessing or using the Services, whichever occurs first. Where an individual accepts this Agreement on behalf of an entity, that individual represents that they are at least eighteen (18) years of age and have authority to bind the entity, and “Customer” refers to that entity.
Precedence. Where a provision of this Agreement applies only to one subscription type, it is identified as such. Where a Purchase Order conflicts with this Agreement, the Purchase Order controls for that Enterprise Subscription only, and only to the extent of the conflict.
Customer may purchase the Services through a written purchase order signed by both Parties or through electronic means made available by the Provider (each a “Purchase Order”), provided that such Purchase Order references this Agreement. Self-Service Subscriptions are ordered through the online checkout, with the plan, price, and billing frequency shown at checkout serving the function of a Purchase Order. The Purchase Order may specify the initial term of the Services (the “Initial Term”), any renewal term (the “Renewal Term”) (collectively, together with the Initial Term, the “Term”), and the fees to be paid by the Customer for the Services (the “Fees”).
If there is any conflict between the terms set forth in a Purchase Order and this Agreement, the terms of the Purchase Order shall control, but only to the extent of such conflict of terms.
Subject to and conditioned on compliance of Customer and Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder (collectively, “Authorized Users”) with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with this Agreement) right to access and use the Services, solely for use by Authorized Users in accordance with the terms and conditions herein.
Customer may use the Services solely for Customer’s internal business purposes (“Authorized Use”).
Provider hereby also grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with this Agreement) license, solely in connection with the Authorized Use during the Term, to use:
Provider shall provide to Customer with means to verify the identity of Authorized Users and authorization to access and use the Services (“Access Credentials”) within a commercially reasonable time following the Effective Date. Access Credentials may include usernames, identification numbers, passwords, licenses or security keys, security tokens, PINs, or other security code, method, technology, or device, which may be used alone or in combination, to verify an individual’s identity and authorization to access and use the Services. Customer’s obligations with respect to account registration and credential security are set out in Section 2.41.
This Agreement commences as of the Effective Date and will continue in effect from such date for the Initial Term as specified in an applicable Purchase Order. If the applicable Purchase Order does not specify the Initial Term, the Initial Term shall be a period of one (1) year.
This Agreement will automatically renew for additional successive Renewal Terms as specified in the applicable Purchase Order, or for periods of one (1) year if the applicable Purchase Order does not specify a Renewal Term, unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term.
For Self-Service Subscriptions, the Term is the billing period selected at checkout (monthly or annual) and renews automatically for successive periods of the same length until cancelled. Customer may cancel at any time through the account settings in the application, effective at the end of the then-current billing period. No written notice is required.
Customer shall pay Provider the Fees set forth in a Purchase Order for the Services, or if the Purchase Order does not specify the Fees, as published on the Provider’s website (including wwwFor Self-Service Subscriptions, Customer authorizes Provider and its payment processor to charge the payment method on file for the applicable Fees in advance of each billing period, on each renewal date, without further authorization and without invoice. Where a charge fails, Provider may retry the charge and may suspend the Subscription in accordance with Section 2.13 until payment is received. Provider may increase Fees for a Self-Service Subscription on not less than thirty (30) days' notice by email to the address associated with Customer's account, effective at the start of the next billing period. The ninety (90) day notice period in the preceding paragraph applies to Enterprise Subscriptions only.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Provider’s net income), and will indemnify Provider for all expenses incurred as a result of Customer’s failure to timely pay such taxes.
This Section applies to Enterprise Subscriptions. Fees for Self-Service Subscriptions are charged in advance in accordance with Section 2.6, and subsections (a) and (b) below do not apply to them.
Customer shall pay all Fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account as Provider may specify in writing from time to time.
If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). Refunds, billing disputes, and chargebacks are governed by Section 2.39.
Except as otherwise expressly provided in this Agreement, as between the Parties, Provider has and will retain sole control over the operation, provision, maintenance, and management of the Service Documentation, System Documentation, and Ancillary Documentation (collectively, the “Documentation”); Specifications; Provider Systems; and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems (collectively, the “Provider Materials”).
For the avoidance of doubt, Provider Materials include data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services (“Customer Data”) and the provision and operation of the Services and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services (collectively, “Resultant Data”), but do not include Customer Data.
For avoidance of doubt, Resultant Data includes anonymized data related to inventory and consumer preferences collected by or through the Services. Notwithstanding the foregoing, Resultant Data does not include, and Provider shall not derive Resultant Data from, Marketplace Data as defined in Section 2.40.
Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of: (a) the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or a Third Party (“Customer Systems”), and (b) sole responsibility for all access to and use of the Provider Materials by any Third Party by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
Provider may engage Third Parties to perform or support the Services (each, a “Subcontractor”). Provider shall engage a Subcontractor with access to Customer Data or Marketplace Data only where that Subcontractor is bound by written obligations of confidentiality, security, permitted use, and deletion that are no less protective than those in this Agreement. Provider remains responsible for the acts and omissions of its Subcontractors. Provider shall maintain a current list of Subcontractors with access to Marketplace Data and shall make that list available to Customer on request.
Provider or its designee may, directly or indirectly, and by use of any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, or software routine) designed or configured to disable access to or use of the Services (automatically with the passage of time or under the positive control of Provider or its designee), or any other lawful means, suspend, terminate, or otherwise deny access to or use by Customer or any Authorized User of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term or condition of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
Customer shall not, and shall not permit any Third Party to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider (collectively, “Third-Party Materials”), any applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.
For purposes of this Agreement, the term “Proprietary Information” means (i) any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential”, “proprietary”, or in some other manner to indicate its proprietary nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, Proprietary Information shall include information consisting of or relating to Provider Materials, Access Credentials, and other technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which Provider has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential” or “proprietary”.
During the period this Agreement is in effect, and at all times afterwards, a Receiving Party will (a) safeguard all Proprietary Information with the same degree of care that it uses to protect its own proprietary information; (b) maintain the confidentiality of this information; (c) not use the information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any Third Party without the prior written consent of the Disclosing Party.
This section does not apply to any information that (a) is already lawfully in the Receiving Party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a Third Party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the Receiving Party as a matter of law (provided that the Receiving Party will use all reasonable efforts to provide the Disclosing Party with prior notice of such disclosure and to obtain a protective order therefor); (e) is disclosed by the Receiving Party with the Disclosing Party’s approval; and (f) is independently developed by the Receiving Party without any use of Proprietary Information. In all cases, the Receiving Party will use all reasonable efforts to give the Disclosing Party thirty (30) days prior written notice of any anticipated disclosure of Proprietary Information under this Agreement.
Nothing in this Agreement grants any title or interest in or to (including any license under) any registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other laws, and all similar or equivalent rights or forms of protection, in any part of the world (“Intellectual Property Rights”) in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, the Third-Party Materials, and Resultant Data are and will remain with Provider and the respective rights holders in the Third-Party Materials.
Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in this Agreement or the applicable third-party license. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto, excluding in all cases Marketplace Data and any data derived from Marketplace Data, in which no right, title, or interest is assigned to Provider.
Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider and its Subcontractors to enforce this Agreement and exercise the rights and perform the obligations of Provider and its Subcontractors hereunder, including Provider’s rights to use Resultant Data derived from Customer Data.
As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Section.
In connection with this Agreement, each of the Parties is an independent contractor and as such will not have any authority to bind or commit the other. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, or agency relationship between the Parties for any purpose.
Each Party represents and warrants to the other Party that:
Customer represents and warrants to Provider that Customer:
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES, GOODS, AND OTHER DELIVERABLES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. PROVIDER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Except for Provider’s express obligations under Section 2.40 (Marketplace and Channel Data), which are not disclaimed, WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
In addition to any other express termination right set forth elsewhere in this Agreement, Provider may terminate this Agreement:
Any of the Parties, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement:
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
Notwithstanding Provider’s disclaimer of warranties, if Customer claims any breach of a valid and enforceable warranty by Provider, Customer’s exclusive remedy shall be for Provider to promptly cure the breach. If Provider is unable to cure the breach within ninety (90) days of notification by Customer of a breach, Customer’s sole remedy is to terminate this Agreement, at which time Provider will refund any and all Fees paid by Customer pursuant to this Agreement within the ninety (90) day period before Customer notifies Provider of the breach.
The Parties acknowledge that any breach of confidentiality obligations under this Agreement by a Receiving Party will irreparably harm the Disclosing Party. Accordingly, in the event of a breach of confidentiality, the Disclosing Party is entitled to promptly seek injunctive relief in addition to any other remedies that the Disclosing Party may have at law or in equity.
If any Party to this Agreement shall commence any suit or action to interpret or enforce this Agreement, the prevailing Party in such action shall recover that Party’s costs and expenses incurred in connection with the suit or action, including attorney fees and costs of appeal, if any.
PROVIDER IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR SOFTWARE, RELATED TO ANY GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO INABILITY TO OPERATE OR ACCESS SYSTEMS OR INFORMATION, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF PROVIDER OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; OR (E) LOSS OF GOODWILL OR REPUTATION.
PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES UNDER THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE COVERAGE ACTUALLY AFFORDED BY PROVIDER’S GENERAL LIABILITY INSURANCE POLICY, ERRORS AND OMISSIONS INSURANCE POLICY, AND UMBRELLA INSURANCE POLICY, AS APPLICABLE, IN EFFECT AT THE TIME ANY CLAIM AGAINST PROVIDER IS MADE BY CUSTOMER.
IF THERE IS NO INSURANCE COVERAGE FOR A CLAIM, CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT PROVIDER’S AGGREGATE LIABILITY FOR ANY DAMAGES OR INJURIES SUFFERED BY CUSTOMER, WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, CLAIM OF NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PROVIDER PURSUANT TO THIS AGREEMENT IN THE PERIOD OF NINETY (90) DAYS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
To the fullest extent permitted by law, no action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either of the Parties against the other more than two (2) years after the action accrues.
Provider indemnifies, defends, and holds Customer harmless from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (each a “Loss”) incurred by Customer resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise (each an “Action”) by a Third Party (other than an Authorized User, a parent, subsidiary, or affiliate of Customer, or any Third Party otherwise under the control of or controlled by Customer, each a “Customer Affiliate”) alleging that the Services and Provider Materials provided by Provider to Customer under this Agreement infringe any Intellectual Property Right of the Third Party. If Provider is permanently enjoined from providing any services under this Agreement, Provider, at Provider’s option, and in its sole discretion, may (a) modify the Services so as to avoid infringement; (b) procure the right for Customer to continue to use the Services; or (c) terminate this Agreement and refund to Customer all fees paid to Provider in the ninety (90) day period before such injunction. Provider shall have no obligation under this paragraph for or with respect to claims, actions, or demands alleging infringement that arise or result from (a) the combination of non-infringing items supplied by Provider with any items not supplied by Provider; (b) the direct or contributory infringement of any process patent by Customer through the use of the goods or services; (c) continued allegedly infringing activity by Customer after Customer has been notified of any allegation of infringement; (d) Third-Party Materials; (e) Customer Data; or (f) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider.
THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Provider shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a Third Party (other than a Customer Affiliate) that arises out of or result from, or are alleged to arise out of or result from any negligent, grossly negligent or intentional tortious act or omission of Provider, its employees or agents, in performing its obligations under this Agreement, except to the extent that such Losses arise from or in connection with the negligence, gross negligence, or intentional tortious act or omission of Customer or Customer Affiliates.
Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns, from and against any and all Losses incurred by Provider resulting from any Action by a Third Party, other than any Third Party under the control of or controlled by Provider (a “Provider Affiliate”) that arise out of or result from, or are alleged to arise out of or result from (a) any negligent, grossly negligent or intentional tortious act or omission of Customer, its employees or agents, in performing its obligations under this Agreement, except to the extent that such claims, liabilities, losses or expenses arise from or in connection with the negligence, gross negligence, or intentional tortious act or omission of Provider, its Subcontractors, or Provider Affiliates; (b) Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (c) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; or (d) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement.
Should any claim subject to indemnity be made against the Parties, the Party against whom the claim is made (the “Indemnitee”) agrees to provide the other Party (the “Indemnitor”) with prompt written notice of the claim.
The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The indemnifying Party is not responsible for any costs incurred, including attorney fees, or compromise made by the indemnified Party unless the indemnifying Party has given prior written consent to the cost or compromise.
Each of the Parties agrees to cooperate with the other Party and provide reasonable assistance in the defense and settlement of any and all claims subject to indemnification by the other Party.
Any notices to be given to Provider under this Agreement shall be by e-mail to the address designated above. Any notices to be given to Customer under this Agreement shall be by email to the most recent address provided to Provider by Customer.
For Self-Service Subscriptions, Provider may modify this Agreement by posting a revised version and providing at least thirty (30) days' notice by email to the address associated with Customer's account or by in-application notice. Modifications take effect at the start of the next billing period following the notice. Customer's continued use of the Services after that date constitutes acceptance. If Customer does not agree, Customer may cancel before the effective date and receive a pro-rata refund of any prepaid, unused Fees. Material reductions in Provider's obligations under Section 2.40 require Customer's affirmative consent.
Neither this Agreement, nor any rights, benefits, or obligations under it, may be assigned by any Party to this Agreement without the prior express written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that Provider may assign its rights in connection with a merger, consolidation, or reorganization without Customer’s consent.
Subject to the foregoing paragraph, this Agreement shall inure to the benefit of and be binding upon all the Parties to this Agreement and their respective executors, administrators, successors, and permitted assigns.
In the event any of the provisions of this Agreement are found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected.
The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. Customer has been advised by counsel of their choice in connection with this Agreement or has been given adequate opportunity to seek such advice. This Agreement shall be construed and interpreted in accordance with the plain meaning of its language, and not for or against either Party, and as a whole, giving effect to all of the terms, conditions, and provisions of this Agreement.
All warranties, representations, indemnification obligations, confidentiality obligations, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control (a “Force Majeure Event”), including without limitation an act of war, terrorism, pandemic, act of nature, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, hacker attack, or failure of the Internet. The delayed Party shall give the other Party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
This Agreement shall be governed by and construed in accordance with the laws as designated in the Website Terms of Use. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
All disputes arising out of or related to this Agreement shall be brought in and are subject to the exclusive jurisdiction and venue as set forth in the Website Terms of Use.
This Agreement, together with the Website Terms of Use and any other Schedules, Appendices, Addenda or documents referenced herein, which are hereby incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the access to and use of the Services and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the access to and use of the Services.
To the extent that anything in or associated with the Website Terms of Use (available at https://www.Cloudboxapp.com/policy/terms-of-service), including the Provider’s Privacy Policy (available at https://www.Cloudboxapp.com/policy/privacy-policy), is in conflict or inconsistent with the terms and conditions set forth herein, the terms and conditions set forth herein shall take precedence, but only with respect to the access to and use of the Services.
For avoidance of doubt, nothing in the Website Terms of Use or the Privacy Policy shall preclude Provider from sharing or selling any Resultant Data, provided that Resultant Data expressly excludes Marketplace Data as defined in Section 2.40, and Provider shall not sell, license, share, or otherwise disclose Marketplace Data, or any data derived from Marketplace Data, to any Third Party except as permitted under Section 2.40.
The Parties agree that this Agreement may be accepted by any means of signature, including electronic signatures or acknowledgement through software or other electronic means.
Nothing contained in this Agreement shall be deemed to confer any right or benefit on any person who is not a Party to this Agreement.
2.39.2 through 2.39.8 apply to Self-Service Subscriptions. Section 2.39.9 governs Enterprise Subscriptions. Section 2.39.6 (billing errors) applies to both.
Customer may cancel a Self-Service Subscription at any time through the account settings in the application, or by written request to support@cloudboxapp.com. Cancellation takes effect at the end of the then-current billing period. No advance written notice and no notice period is required, and the sixty (60) day non-renewal notice requirement in Section 2.5 does not apply to Self-Service Subscriptions.
Following cancellation, Customer retains access to the Services through the end of the billing period for which Fees have been paid. At the end of that period the Subscription terminates, no further Fees are charged, and the provisions of Section 2.22 (Rights on Termination) apply. Customer may export its Customer Data from within the application at any time before the end of that period and for 180 (180) days afterward, at no charge.
Except as expressly provided in Section 2.39.5, all Fees paid or payable under a Self-Service Subscription are non-refundable and are earned by Provider upon payment. Provider does not issue refunds or credits for partial billing periods, for unused time remaining in a billing period, for periods during which Customer did not use the Services, for a reduction in the number of Authorized Users or containers mid-period, or for a downgrade to a lower-priced plan taking effect during a billing period. This applies equally to monthly and annual billing periods.
Notwithstanding Section 2.39.4, Provider shall refund Fees in the following circumstances:
Provider may, in its sole discretion, issue a refund or credit in circumstances not listed above. Doing so does not create an obligation to do so in any other case and is not a waiver of Section 2.39.4.
Customer shall notify Provider of any disputed or erroneous charge within thirty (30) days after the date of the charge, by written notice to support@cloudboxapp.com identifying the charge and the basis for the dispute. Provider shall investigate in good faith and shall refund or credit any amount it determines was charged in error. Absent such notice, and except where applicable law provides otherwise, charges are deemed final thirty (30) days after the date of the charge.
For Self-Service Subscriptions with an annual billing period, Provider shall send Customer an email notice not less than thirty (30) days before each automatic renewal date, stating the renewal date, the length of the renewal period, the amount that will be charged, and the method by which Customer may cancel. Failure to receive that notice does not extend the cancellation deadline where the notice was sent to the email address on Customer’s account.
Customer shall contact Provider at support@cloudboxapp.com to resolve any billing dispute before initiating a chargeback or payment reversal with its card issuer or payment provider. Where Customer initiates a chargeback for an amount that is properly due, Provider may suspend the Subscription in accordance with Section 2.13 and treat the reversed amount as a failed payment under Section 2.8, including any associated fees charged to Provider by the payment processor.
Cancellation, non-renewal, and refunds for Enterprise Subscriptions are governed by the applicable Purchase Order and by Sections 2.5, 2.21, and 2.22. Where the Purchase Order is silent, Fees are non-refundable except on termination for Provider’s uncured material breach under Section 2.21.2.
Hardware is not offered through Self-Service Subscription. Purchases of hardware are made under a Purchase Order and are governed by the return, warranty, and replacement terms set out in that Purchase Order.
“Marketplace Data” means any information Provider receives, accesses, or processes from a third-party sales channel, marketplace, or fulfillment platform on Customer’s behalf and under Customer’s authorization, including without limitation information obtained through the Amazon Selling Partner API (“Amazon Information”), and including order information, buyer name, buyer shipping address, buyer contact information, listing and catalog information, inventory quantities, and any data derived from any of the foregoing. Marketplace Data is Customer Data for all purposes under this Agreement and is not Resultant Data.
Provider shall access and process Marketplace Data solely to provide the Services to Customer, and solely for the purposes Customer directs, including order retrieval, pick and pack workflows, fulfillment verification, generation of packing slips and shipping labels, shipment confirmation, and inventory synchronization. Provider shall not use Marketplace Data for any other purpose, including product development unrelated to Customer, competitive analysis, model training, advertising, or the creation of aggregated or benchmarked data products.
Provider shall not sell, rent, license, trade, or otherwise disclose Marketplace Data to any Third Party, except to Subcontractors as permitted under Section 2.12 and except where required by law, in which case Provider shall give Customer prior notice unless legally prohibited from doing so.
Provider shall limit collection of personally identifiable information contained in Marketplace Data to what is necessary to perform the Services. Provider shall encrypt such information in transit using TLS 1.2 or higher and at rest using AES-256 or an equivalent standard, shall restrict access to personnel with a business need, shall enforce multi-factor authentication on all accounts with access, and shall log access to such information.
Provider shall retain personally identifiable information contained in Marketplace Data only as long as necessary to perform the Services, and in no event longer than thirty (30) days after the applicable order is shipped or cancelled, except where a longer period is required by applicable tax, accounting, or legal obligations, in which case Provider shall retain only the minimum data required and shall encrypt and access-restrict it. Provider shall purge such information from backups and archives within ninety (90) days. This Section supersedes Section 2.22(d) with respect to Marketplace Data.
Provider maintains a written incident response plan, reviewed at least every six (6) months, that defines roles, escalation, and notification procedures. Provider shall notify Customer without undue delay, and in any event within seventy-two (72) hours, of any confirmed security incident affecting Customer’s Marketplace Data, and shall notify the applicable marketplace operator within any period that operator requires. Provider shall cooperate with Customer’s reasonable investigation of any such incident.
Customer represents that it has the authority to authorize Provider’s access to its marketplace accounts and that such authorization complies with the terms of service of each applicable marketplace. Customer may revoke Provider’s access at any time, and upon revocation or termination Provider shall cease all access and delete Marketplace Data in accordance with Section 2.40.5.
Access to the Services requires a Cloudbox account. For Self-Service Subscriptions, Customer creates its account through Provider’s website or application. For Enterprise Subscriptions, Provider may create the account on Customer’s behalf or Customer may register directly, as specified in the applicable Purchase Order.
The Services are provided for business use only and are not offered for personal, family, or household purposes. Any individual who registers for or accepts this Agreement must be at least eighteen (18) years of age and have the legal capacity to enter into a binding contract. Where an individual registers on behalf of an entity, that individual represents and warrants that they are authorized to bind the entity, and “Customer” refers to that entity.
Customer shall provide registration information that is complete, accurate, and current, including Customer’s legal entity name, business address, a valid billing contact, and a valid email address for notices. Customer shall keep this information current for the duration of the Term. Provider is entitled to rely on the information in Customer’s account for all purposes under this Agreement, including the delivery of notices under Section 2.26 and the billing of Fees under Section 2.8.
Customer shall safeguard its Access Credentials in accordance with Section 2.4 and shall not share, sell, transfer, or otherwise make Access Credentials available to any person other than an Authorized User. Each Authorized User shall have a unique set of Access Credentials, and Customer shall not permit shared or generic logins. Where Provider makes multi-factor authentication available, Customer shall enable it for all accounts with administrative privileges.
Customer is responsible for all activity occurring under its account, whether or not authorized by Customer, except to the extent such activity results from Provider’s failure to perform its obligations under this Agreement. The acts and omissions of Authorized Users are deemed the acts and omissions of Customer.
Customer shall notify Provider without undue delay, and in any event within twenty-four (24) hours, of any known or reasonably suspected unauthorized access to or use of Customer’s account or Access Credentials, by written notice to support@cloudboxapp.com. Customer shall cooperate with Provider’s reasonable investigation of any such event. Provider may reset Access Credentials, require re-authentication, or suspend the account or any Authorized User’s access pending investigation, and shall notify Customer of any such action at or promptly after the time it is taken.
Unless otherwise agreed in writing, Customer shall maintain a single account per legal entity. Customer shall not create or maintain multiple accounts to circumvent usage limits, plan restrictions, trial eligibility, or pricing tiers.
Where Customer connects a third-party account to the Services, including a marketplace, ecommerce, carrier, or compliance-system account, Customer authorizes Provider to access and process data from that account on Customer’s behalf and for the purposes set out in Section 2.40. Customer represents and warrants that it holds the necessary rights and authorizations to connect each such account and that doing so does not violate the terms of service of the applicable third party. Customer may disconnect any connected account at any time through the application, and Provider shall cease accessing that account and shall handle any Marketplace Data already received in accordance with Section 2.40.5.
Provider may suspend or terminate an account, on notice given at or promptly after the time of suspension, where Provider reasonably determines that: (a) the registration information is false, materially incomplete, or has not been kept current after a request to update it; (b) Customer does not meet the eligibility requirements in Section 2.41.2; or (c) the account was created to circumvent a prior suspension or termination. This right is in addition to Provider’s rights under Sections 2.13 and 2.21.
Customer shall not transfer or assign its account to any Third Party except in connection with a permitted assignment of this Agreement under the Assignment provisions of this Agreement.
Signature is required for Enterprise Subscriptions only. Self-Service Subscriptions are accepted electronically as described in Section 1.1 (Acceptance) and no signature is required.
The descriptions in this Exhibit A identify the products and services Provider currently offers. They are general descriptions for identification purposes only. They are not specifications and do not create any warranty, representation, or commitment as to any particular feature, function, capacity, or result. Provider may add, modify, or discontinue products, features, and integrations from time to time in accordance with this Agreement.
The specific products, features, modules, integrations, and usage limits available to Customer are determined by Customer’s subscription plan and, in the case of an Enterprise Subscription, by the applicable Purchase Order. Nothing in this Exhibit A entitles Customer to any product or feature not included in Customer’s plan or Purchase Order.
Cloudbox Hardware consists of devices supplied by Provider that are installed on or used together with scales and containers in order to connect them to the Cloudbox App.
Installed with a scale, the device makes that scale a “smart scale.” Installed on or used with a container, the device makes that container a “smart container.” Smart scales and smart containers report measurements to the Cloudbox App over a supported network connection.
Within the Cloudbox App, the readings reported by Hardware may be used for inventory management, order fulfillment, and weight verification, including confirming quantities at receiving, picking, packing, and shipping, monitoring stock levels on hand, and generating alerts based on thresholds configured by Customer. Readings and the resulting inventory information may be viewed in both the web application and the mobile application.
Hardware is offered only under an Enterprise Subscription and is purchased pursuant to a Purchase Order. Hardware is not offered through a Self-Service Subscription. Returns, cancellations, and refunds for Hardware are governed by Section 2.39.10 and the applicable Purchase Order and are not governed by the refund and cancellation terms applicable to Self-Service Subscriptions.
Hardware requires an active subscription to the Cloudbox App, a supported power source, and a supported network connection in order to function as described. Provider does not manufacture or supply the scales or containers on which Hardware is installed unless expressly stated in a Purchase Order.
Cloudbox Origin, a self-contained smart inventory container previously offered by Provider, is no longer offered for sale. Units previously delivered to Customer remain subject to this Agreement and to the Purchase Order under which they were supplied.
Cloudbox Software Suite:
The Cloudbox App is Provider’s cloud-based software platform. It is delivered as a web application, accessed through a browser, and as a companion mobile application for supported mobile devices. Both the web application and the mobile application are part of the Cloudbox App and are made available under both a Self-Service Subscription and an Enterprise Subscription.
The Cloudbox App combines enterprise resource planning (ERP), warehouse management (WMS), and manufacturing resource planning (MRP) functionality in a single system. Subject to Customer’s plan and configuration, the Cloudbox App may be used to:
The Cloudbox App may be used with or without Hardware. Where Hardware is deployed, the Cloudbox App receives, displays, and acts on the data reported by that Hardware.
Availability of the Cloudbox App depends on internet connectivity. Certain functions, including integrations with third-party systems, depend on services operated by parties other than Provider and are subject to those parties’ availability, terms, and restrictions.
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