Cubby Enterprises, Inc.
Master Services Agreement Terms
This Master Services Agreement (together with the Order(s) and other attachments, this “Agreement”) is between Cubby Enterprises, Inc., a Delaware corporation (“Cubby”) and Customer. The parties agree as follows:
Definitions.
“Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, Implementation Services, or either party’s performance under this Agreement.
“Branded Site” means a Site branded with Customer Marks and powered by Cubby.
“Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Cubby’s Confidential Information includes non-public information regarding features, functionality, and performance of the Platform, Implementation Services, Documentation, and Usage Data. Customer’s Confidential Information includes the Customer Data.
“Customer Data” means all non-public data uploaded by or on behalf of Customer to the Platform, Branded Site, or Template Site, created by Customer or a user authorized by Customer to use the Platform, Branded Site, or Template Site, or made available to Cubby by Customer in the course of the Services. “Customer Data” does not include Usage Data.
“Customer Marks” means Customer’s name, logo, trademarks, service marks, trade dress, and other indicia of origin.
“Documentation” means Cubby-provided user documentation relating to the Platform (e.g., user manuals and online help files).
“Implementation Services” means any implementation, custom configuration, training, or consulting services relating to the Services as specified in an Order.
“Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
“Go Live” means the date on which a specified number of Units is expected to be live on the Platform.
“Order” means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between Customer and Cubby, including any addenda and supplements thereto.
“Order Effective Date” means the date an Order goes into effect.
“Payment Processing Service” means the portion of the Platform through which Customer can accept and process payments from Tenants. The Payment Processing Service is a Third-Party Service (as defined below) and is subject to the applicable terms of the Payment Processing Service provider, such as Stripe, Inc. and Centavo Inc. (dba Payabli).
“Platform” means Cubby’s software-as-a-service dashboard, to be integrated into (or otherwise interoperable with) the Site, that allows Customer to manage its Units and Tenants, register new Tenants, collect documentation and payment from Tenants, and perform various other functions.
“Services” means Cubby’s provision of the Platform and, if applicable, the Template Site and/or Branded Site, including any related software and services, in each case, as may be described in the applicable Orders.
“Site” means Customer’s consumer-facing website into which the Platform is integrated.
“Template Site” means a Site that is developed using a template provided by Cubby as part of the Services.
“Tenant” means a client or potential client of Customer who rents or has inquired about renting a Unit.
“Transaction Data” means data obtained through the Site relating to transactions between Customer and its Tenants or other End Users, excluding Usage Data.
“Units” means the separate rentable self-storage units, parking spaces, storage containers, or lockers set forth in the Order or its exhibits.
“Usage Data” means data relating to use of the Platform, the Template Site, the Branded Site, or Implementation Services, or any End User’s use of any of the foregoing, that is aggregated and/or deidentified.
Services.
Orders. Each Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order, this Agreement will control unless the Order states that a specific provision of this Agreement will be superseded by a specific provision of the Order.
Access to the Platform. Subject to Customer’s compliance with this Agreement, Cubby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the term of the applicable Order to use the Platform, solely in connection with Customer’s internal business operations. Cubby may modify or update the Platform from time to time to keep the Platform current and relevant for its customer base generally.
Operation of a Template Site. To the extent specified in the applicable Order, and subject to Customer’s compliance with this Agreement, Cubby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Term to use the Template Site, solely in connection with Customer’s internal business operations.
Branded Sites. Subject to Customer’s compliance with this Agreement, Cubby will use reasonable efforts to develop, design and establish a Branded Site and enable Customer to make the Branded Site available (on a hosted, as-a-service, basis) for access and use by end users seeking to search for and rent Units through the Branded Site (together with any other end user of the Branded Site or of a Template Site, “End Users”). The primary name of the Branded Platform shall be a domain name provided and registered by Customer.
Subcontractors. Cubby may use subcontractors or other third parties (including for the processing of information) to perform its obligations under this Agreement, but Cubby will remain responsible for all such obligations, except that Cubby will not be liable for providers of Third-Party Services, which are governed by independent terms between Customer and the Third-Party Service provider.
Support Services. Subject to Customer’s payment of all Service Fees (as defined below) and compliance with this Agreement, Cubby will use commercially reasonable efforts to provide technical support to Customer during normal business hours, with the exclusion of U.S. federal holidays, or as otherwise described in the applicable Order and Documentation (the “Support Services”).
Implementation Services. To the extent specified in the applicable Order, Cubby will use reasonable efforts to provide the Implementation Services to Customer. Customer will: (1) cooperate with and assist Cubby in the performance of Implementation Services; and (2) provide any resources specified in the Order or otherwise reasonably requested by Cubby to facilitate the Implementation Services.
Mutual Trademark License. Each party (“Licensor”) grants to the other (“Licensee”) the right to use Licensor’s trademarks, logos, and trade names (“Marks”) solely during the Term and in connection with the performance of Licensee’s obligations or exercise of Licensee’s rights under this Agreement. Licensee will comply with any trademark usage policies provided by Licensor. All goodwill arising out of Licensee’s use of Licensor’s Marks will vest in Licensor.
Attribution Requirements. All Template Sites will include the phrase “powered by Cubby” (or other attribution notice reasonably required by Cubby) in the placement, size, and format reasonably required by Cubby.
Service Fees.
Service Fees. Customer will pay Cubby all fees described in all Orders (the “Service Fees”) in accordance with the terms therein. The Service Fee includes the annual fee for use of the Platform, Branded Site, and Template Site (“Annual Fee”) and all fees for the Payment Processing Service (“Payment Processing Fees”).
Unit Activation. At Go Live, Customer will be billed the applicable Service Fee based on the greater of the number of units live on the Cubby Platform or number of Units specified in the “Initial Activation” and “Portfolio Activation” sections of an Order.
Increasing Units. Customer may increase the number of Units in an Order at any time. Any Units added to the Order will be billed in the month following their addition, with no pro-rated Service Fee applied prior to Customer’s next billing cycle.
Decreasing Units. Customer may decrease the number of Units in an Order if: (1) the facility associated with the Units is sold; or (2) Customer is third party manager and the facility is no longer managed by Customer as a third party-manager Any Units removed from an Order will not be billed in the month following their removal from the Order, with no credit or refund due to Customer.
Minimum Active Units. Customer agrees to maintain a minimum Unit count of seventy-five percent (75%) of the total Units that were active on the Platform in the immediately preceding Billing Period. If Customer's active Units fall below this 75% threshold in any Billing Period, Customer will be charged in the next applicable billing period for the greater of: (i) the actual number of active Units for that billing period, or (ii) seventy-five percent (75%) of the Units that were active in the immediately preceding billing period. At minimum, Customer will be charged for eight hundred thirty three (833) Units.
Payment. If Customer believes Cubby has billed Customer incorrectly, Customer must contact Cubby no later than 30 days after the closing date on the first billing statement in which the error or problem appeared. All Service Fees are non-refundable, except as otherwise specified in this Agreement. Unless otherwise set out in the applicable Order, Annual Fees are payable annually in advance and Payment Processing Fees are payable monthly in arrears.
Cubby may bill Customer through an invoice, in which case, unless otherwise specified in an Order, full payment is due 30 days after the date of the applicable invoice. Where Customer has previously provided Cubby with a payment method on file, Cubby may automatically charge that payment method for all Service Fees due on a monthly basis.
Cubby uses Payment Processing Services to allow Customers to collect revenue from their Tenants. By entering into this Agreement, Customer authorizes Cubby to deduct fees owed to Cubby from Customer’s revenue disbursements for all applicable Service Fees and charges. All payments are processed in United States Dollars and Customer is responsible for any transaction fees. For more information on how Stripe handles your data, please refer to Stripe's Privacy Policy. For more information on how Payabli handles your data, please refer to Payabli’s Privacy Policy.
Late Payments. Customer’s failure to pay any Service Fees when due may result in suspension or termination of the Services. And Cubby may engage a collections agency to collect the Service Fees at Customer’s expense, plus interest equal to the lesser of 1.5% per month or the maximum rate permitted by Applicable Law.
Taxes. Other than federal and state net income taxes imposed on Cubby, Customer will bear all taxes, duties, and other governmental charges relating to the Services and Implementation Services.
Restrictions and Responsibilities.
Use Restrictions. Except as expressly permitted in this Agreement, Customer will not, and will not permit or authorize third parties to: (1) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties to use the Platform; (2) circumvent or disable any security or other technological features of the Platform; (3) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Platform (except to the extent this restriction is prohibited by Applicable Law); (4) modify, translate, or create derivative works based on the Platform; (5) remove any of Cubby’s proprietary notices or labels from the Site or Platform (such as “powered by Cubby”); (6) use or host the Branded Site or Template Site or use the Platform in a manner that violates or attempts to circumvent Applicable Law; (7) use the Site or Platform to transmit any content that is offensive, harassing, libelous, abusive, threatening, harmful, or otherwise objectionable; (8) use the Site or Platform to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Platform; (9) engage in unfair, deceptive, or abusive acts or practices or (10) access the Platform or use the Services to develop a competing product or service.
Accounts. Customer is responsible and liable for all actions and inactions by its users or by any third party that Customer permits to access or use the Platform, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its users’ accounts.
Additional Responsibilities. Customer will: (1) procure, implement, and maintain any network connections, hardware, infrastructure, and third-party software licenses that are necessary for Customer to securely access the Platform and (if applicable) operate the Site; (2) configure Customer Data and the Site in compliance with all Applicable Law; (3) take all reasonable precautions to prevent unauthorized access to the Platform and Site, or disclosure of any data derived in connection with the Services or Cubby’s Confidential Information; and (4) promptly notify Cubby of any unauthorized access to the Platform or Site or use or disclosure of any data derived in connection with the Services, or Cubby’s Confidential Information. While Cubby may perform routine system backups for its own business continuity and disaster recovery purposes, Customer remains solely responsible for maintaining current and complete copies of all Customer Data, and Cubby will not be liable for any loss, corruption, or recovery of Customer Data.
Customer’s Obligations and Relationship to Branded and Template Site End Users. As between the Parties, Customer is the sole service provider to End Users. All access and use of the Branded Site or Template Site by any End User will be governed solely by contractual terms entered into between Customer and such End User (“Terms of Service”), and no End User will be required or permitted to enter into, or otherwise agree to, an agreement or any binding terms with Cubby in connection with such End User’s access to or use of the Site, except as may be required by law, including with respect to possession or processing of personal data; provided, Customer will provide all assistance reasonably necessary for Cubby to enforce the Terms of Service as a third-party beneficiary thereof. In providing access to and use of the Branded Site or Template Site, Customer will obtain all rights, consents, authorizations, permissions, and other approvals from, and provide all necessary notices to, End Users with respect to their data as necessary to enable Cubby and its vendors to collect, use, retain, disclose and otherwise process End User’s data (including personally identifiable information) on Customer’s behalf in connection with End Users’ use of the Site.
Terms and Privacy Policies. Customer will provide and make available to its End Users via the Site: (1) a privacy policy and/or cookie policy compliant with Applicable Law; and (2) terms of use or other legally binding agreement between Customer and its End Users that is consistent with this Agreement and provides Customer all rights necessary for Customer to comply with its obligations under this Agreement. Customer’s terms of use and privacy policy will reference Customer’s relationship with Cubby and use of the Services, including a link to Cubby’s own terms of use and privacy policy. On all Branded Sites and Template Sites, Customer will post Terms of Service that are substantially similar to those set forth in Exhibit A hereto. Customer understands and acknowledges that, as between the parties, Customer is solely responsible for ensuring the Terms of Service provide the disclosures required by applicable law with respect to providing services to consumers and are otherwise legally binding and enforceable in the jurisdiction(s) Customer operates in.
As part of the Services, Cubby may provide Customer with template Terms of Service and a Privacy Policy for use with a Branded Site or Template Site (“Template Legal Documents”). Customer acknowledges and agrees that the Template Legal Documents are provided for informational purposes only and do not constitute legal, regulatory, or compliance advice. Customer is solely responsible for reviewing, modifying, and ensuring the enforceability and compliance of the Template Legal Documents with all applicable laws, regulations, and business requirements. Cubby makes no representations, warranties, or guarantees regarding the Template Legal Documents, including their sufficiency, accuracy, legality, or enforceability. Customer’s use of the Template Legal Documents is entirely at its own risk, and Cubby disclaims all liability arising from such use. Customer will indemnify, defend, and hold harmless Cubby and its officers, directors, employees, agents, service providers, licensors, and affiliates from and against any claims, damages, losses, or liabilities arising out of or related to Customer’s use, modification, or implementation of the Template Legal Documents.
Intellectual Property and Data Use.
Customer Data. Customer or its licensors owns the Customer Data and Customer Marks, including all Intellectual Property Rights therein. No ownership rights in the Customer Data or Customer Marks are transferred to Cubby by this Agreement. Cubby does not have any rights to the Customer Data or Customer Marks except for the limited express rights granted in this Agreement. Customer hereby grants Cubby a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable (to Cubby’s third-party service providers) license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data and Customer Marks (including to the owner of the Units), in any media or distribution methods now known or later developed, solely during the Term and as necessary for Cubby to provide the Services and Implementation Services to Customer and/or the owner of the Units, to maintain and improve the Services, and perform Cubby’s related business functions.
Cubby IP. Cubby and its licensors own the Platform, any elements of the Site provided by Cubby, Implementation Services, Documentation, and Usage Data, including all Intellectual Property Rights therein (the “Cubby IP”). The Cubby IP is protected by copyright law and other Applicable Law. No ownership rights in the Cubby IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Cubby IP except for the limited express rights granted in this Agreement.
Implementation-Related IP. If in the course of providing Implementation Services Cubby develops any technology, Cubby will own such technology and all Intellectual Property Rights therein (“Implementation-Related IP”) unless the parties explicitly agree otherwise in the applicable Order. Cubby hereby grants Customer a non-exclusive, irrevocable, royalty-free, fully paid, non-sublicensable license to use any Implementation-Related IP, solely during the Term and as necessary for Customer to use the Platform and Implementation Services in accordance with this Agreement.
Feedback. If Customer gives Cubby feedback, comments, or suggestions concerning the Services or Implementation Services (collectively, “Feedback”), Customer hereby assigns to Cubby all right, title, and interest in and to the Feedback, and Cubby is free to use the Feedback without payment, attribution, or restriction. If Customer receives feedback, comments, or suggestions concerning the Branded Site, Template Site, or Platform from an End User (collectively, "User Feedback"), Customer hereby assign to Cubby all right, title, and interest in and to the User Feedback.
Usage Data. Cubby may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Branded Site, Template Site, Platform, Implementation Services, and related systems and technologies (including information provided by third-party analytical tools). Cubby may use Usage Data for any purpose, including to improve the Services or Implementation Services, to develop marketing materials and statistical analyses, and to develop new products, services, features, and functionality.
Confidentiality.
Non-Disclosure and Non-Use. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who (1) have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement and (2) are subject to confidentiality obligations consistent with those in this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 6, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, or for so long as such Confidential Information constitutes a trade secret under Applicable Law)
Compelled Disclosure. This Agreement does not prohibit disclosure of Confidential Information if such disclosure is required by law or the valid order of a court or other governmental authority. Before making any such disclosure of Discloser’s Confidential Information, Recipient will, unless legally prohibited from doing so: (1) give Discloser prompt written notice of such requirement so Discloser may seek a protective order or other remedy; (2) reasonably cooperate with Discloser to oppose the disclosure and/or obtain a protective order or other remedy; and (3) not disclose any of Discloser’s Confidential Information beyond what is legally required.
Third-Party Plugins and Services.
Third-Party Services. Cubby and third parties may make available third-party products or services, including plugins, mobile applications, integrations, and related services (“Third-Party Services”) that may be available through the Services or that Customer may elect to purchase or use. Any use by Customer of such Third-Party Services and any exchange of data between Customer and any Third-Party Service or Third-Party Service provider is solely between Customer and the applicable Third-Party Service provider. Cubby does not warrant or provide support for Third-Party Services, whether or not they are designated by Cubby as “recommended,” “certified,” or otherwise. Cubby is not responsible for any violations of Applicable Law relating to Third-Party Services or arising from Customer’s use of Third-Party Services.
Interoperation with the Services. If Customer uses any Third-Party Services with the Services, Customer grants Cubby permission to allow the Third-Party Service and its provider to access Customer Data as required for the interoperation of that Third-Party Service with the Services. Cubby is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third-Party Service or its provider. Customer is responsible for negotiating any limits on the use of Customer Data by the Third-Party Services directly with the Third-Party Service provider.
No Guarantee. Cubby does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Services features), and if such Third-Party Services or related features are discontinued, Customer will not be entitled to any refund, credit, or other compensation.
Term and Termination.
Term. The term of this Agreement will commence on the Order Effective Date of the first Order and will continue until terminated in accordance with this Agreement (the “Term”). If a term is not specified in an Order, the term of such Order will be 12 months. Upon expiration of an Order, the Order will automatically renew for a term equivalent to the initial term of such Order, unless otherwise specified in the Order or if either party notifies the other in writing of its desire to terminate the applicable Order at least 30 days before the expiration of the Order.
Termination for Breach or Insolvency. Either party may terminate this Agreement or any Order, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Effect of Termination. Termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Upon the termination of this Agreement, or an Order, all rights and licenses granted by Cubby to Customer under this Agreement or the applicable Order will terminate, and if the Site is hosted on Customer’s or Customer’s hosting provider’s equipment, Customer will uninstall and delete any Cubby IP and Implementation-Related IP from such equipment. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
Post-Termination Obligations. Upon any termination of this Agreement, each party will delete any of the other party’s Confidential Information then held by such party, except that any copies of Confidential Information created pursuant to automatic back-up procedures will be deleted in accordance with the Recipient’s data retention practices. Within 10 days after termination, Customer will pay Cubby all remaining Service Fees owed under any terminated Orders. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Service Fees), 5 (Intellectual Property and Data Use), 6 (Confidentiality), 8.C (Effect of Termination), 8.D (Post-Termination Obligations), 9.E (Disclaimer), 10 (Indemnification), 11 (Limitations of Liability), 13 (Arbitration), 15 (Compliance with Applicable Law), and 16 (Miscellaneous).
Warranties and Disclaimer.
Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution and delivery of this Agreement by the executing party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
Cubby Warranties. Cubby represents and warrants to Customer that Cubby will perform the Services and Implementation Services in a good and workmanlike manner.
Customer Warranties. Customer represents and warrants to Cubby that: (1) Customer has the necessary rights to authorize Cubby to use the Customer Data in accordance with this Agreement, and such use by Cubby of Customer Data does not and will not infringe any third-party right, including any Intellectual Property Right or privacy right; (2) Customer’s operation of the Site and provision of the Transaction Data to Cubby does not and will not breach any agreement to which Customer is a party; and (3) Customer will use the Site, Platform, and Implementation Services in compliance with the Documentation and Applicable Law.
Combinations. Cubby will have no obligation for any infringement of Intellectual Property Rights relating to Customer’s use of the Platform, or the Site to the extent arising out of: (1) use of the Platform or Site in combination with other products or services not recommended or provided by Cubby; (2) designs, requirements, or specifications required by or provided by Customer; (3) use of the Platform or Site in breach of this Agreement or outside the scope of the license granted to Customer; (4) Customer’s failure to use the Platform or Site in accordance with the Documentation; (5) any modification of the Platform or Site not made or authorized in writing by Cubby; or (6) Third-Party Services.
Disclaimer. Except for the limited warranties described in this Section 9 (Warranties and Disclaimer), Cubby makes no other express or implied warranties with respect to the Services, Site, Platform, Implementation Services, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. Except for the limited warranties described in this Section 9, the Services, Site, Platform, and Implementation Services are provided “as is.” Cubby does not warrant that the Services, Site, Platform, or Implementation Services will satisfy Customer’s requirements, are without defect or error, or that the operation of the Site or Platform will be uninterrupted. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Customer.
Indemnification.
By Cubby.
Defense. At Customer’s option and request, Cubby will defend Customer from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on an allegation that Customer’s use of the Platform or any elements of the Site provided by Cubby in accordance with this Agreement infringes any third-party Intellectual Property Rights (a “Cubby Indemnifiable Claim”). If Customer requests Cubby to defend it from any Cubby Indemnifiable Claim, Customer will: (a) give Cubby prompt written notice of the Cubby Indemnifiable Claim; (b) grant Cubby full and complete control over the defense and settlement of the Cubby Indemnifiable Claim; (c) provide assistance in connection with the defense and settlement of the Cubby Indemnifiable Claim as Cubby may reasonably request; and (d) comply with any settlement or court order made in connection with the Cubby Indemnifiable Claim. Notwithstanding the previous sentence, Cubby will not enter into any settlement that involves an admission of guilt or liability of Customer without Customer’s prior written consent. Customer may participate in the defense of a Cubby Indemnifiable Claim at its own expense and with counsel of its own choosing.
Indemnification. Cubby will indemnify Customer from and pay: (a) all damages, costs, fines, judgments, expenses, liabilities, and attorneys’ fees reasonably incurred by Customer in any Cubby Indemnifiable Claim; and (b) all amounts that Cubby agrees to pay to any third party to settle any Cubby Indemnifiable Claim.
By Customer.
Defense. At Cubby’s option and request, Customer will defend Cubby and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Cubby Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry (a) made by any End User or (b) arising out of or based on Customer’s breach of Sections 4 (Restrictions and Responsibilities), 6 (Confidentiality) or 9 (Warranties and Disclaimer) (a “Customer Indemnifiable Claim”). If Cubby requests Customer to defend it from any Customer Indemnifiable Claim, Cubby will: (1) give Customer prompt written notice of the Customer Indemnifiable Claim; (2) grant Customer full and complete control over the defense and settlement of the Customer Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the Customer Indemnifiable Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Customer Indemnifiable Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Cubby without Cubby’s prior written consent. Cubby may participate in the defense of a Customer Indemnifiable Claim at its own expense and with counsel of its own choosing.
Indemnification. Customer will indemnify the Cubby Indemnified Parties from and pay: (1) all damages, costs, fines, judgments, expenses, liabilities, and attorneys’ fees reasonably incurred by the Cubby Indemnified Parties in any Customer Indemnifiable Claim; and (2) all amounts that Customer agrees to pay to any third party to settle any Customer Indemnifiable Claim.
IP Infringement. If use of the Platform or any portion of the Site provided by Cubby is held to infringe (or if Cubby reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Cubby may, at its option and expense: (1) modify the Platform or Site to make them non-infringing; or (2) obtain a license that permits Customer to continue using the Platform or Site. If Cubby does not believe either option is reasonably practicable, Cubby may terminate this Agreement. Section 10.A states Cubby’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Platform or Site.
Limitations of Liability.
Exclusion of Damages. Except for damages resulting from gross negligence or willful misconduct, neither Cubby nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if Cubby is apprised of the likelihood of such damages occurring.
Damages Cap. Except for damages resulting from gross negligence or willful misconduct, Cubby’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the total amount paid by Customer to Cubby during the 12 months immediately preceding the claim (determined as of the date of any final judgment in an action).
Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 11 (Limitations of Liability) will apply to Customer solely to the extent permitted by Applicable Law.
Insurance. Customer will obtain and maintain throughout the Term comprehensive general liability insurance and professional liability insurance in amounts that are commercially reasonable and customary for its operations. Customer will provide a copy of any such policy or a certificate evidencing the policy upon Cubby’s written request.
Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in New York, New York. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
Publicity. Cubby may publicly list Customer as a customer of Cubby and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Cubby customers or investors.
Compliance with Applicable Law. Customer will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement.
Miscellaneous.
Governing Law. This Agreement is governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 13 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Non-Solicitation. During the Term and for two years thereafter, Customer will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Cubby to terminate their engagement with Cubby. This Section 16.B will apply solely to the extent permitted by Applicable Law.
Injunctive Relief. If either party breaches Sections 4 (Restrictions and Responsibilities) or 6 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
Assignment. Neither party may assign this Agreement or delegate its performance without the other party’s prior written consent, and any attempt to do so is void; except either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Entire Agreement. This Agreement (including any Orders) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any purchase order or other document provided by Customer will be void and have no binding effect on Cubby, except as described in Section 2.A (Orders). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Customer will be sent to the address listed on the Order. All notices to Cubby will be sent to:
Cubby Enterprises, Inc.
126 Broadway, 8th Floor, Suite 817
New York, NY 10004
Email: privacy@cubbystorage.com
Attn:
Force Majeure. Cubby will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Cubby’s reasonable control (a “Force Majeure Event”), so long as Cubby uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Cubby to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.
Interpretation. If Cubby provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.
