Cubby User Services Agreement

Posted: April 15, 2024

Effective: April 15, 2024

This Data Services Agreement (the "DSA") is between Cubby NYC, Inc., a Delaware corporation with offices in New York City ("Cubby") and the organization or individual agreeing to these terms ("Customer"). Cubby and Customer are each referred to as a “Party” and collectively as the “Parties.” This DSA governs access to and use of the Services and any Beta Services. This DSA, each applicable Order Form, and the Data Processing Agreement are collectively referred to as the "Agreement." By clicking "I agree," signing your Order Form for the Services, or using the Services, you agree to the Agreement as a Customer.

If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.

1. Services.
   1. Provision. The Agreement governs access to, and use of the Services, and any associated Software. Customer may access and use the Services in accordance with the Agreement.
   2. Modifications. Cubby may update the Services from time to time. If Cubby changes the Services in a manner that materially reduces their functionality, Cubby will notify Customer at the email address associated with the account, and Customer may provide notice within thirty days of the change to terminate the Agreement. This termination right will not apply to updates made to features provided on a beta or evaluation basis. Without limiting the foregoing, from time to time, Cubby may add additional features to enhance the user experience of the Services at no additional charge. However, these free features may be withdrawn without further notices.
2. Subscriptions.
   1. Services Term. Unless otherwise set forth on the Order Form, the Services are sold on a subscription basis. Cubby will deliver the Services to Customer for the Services Term. Unless the parties agree otherwise in writing, any increases in quantities of Services purchased during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.
   2. Automatic Renewals. Unless otherwise specified on the Order Form, following the Initial Services Term or a Renewal Term, Customer's subscription to the Services will automatically renew for a Renewal Term at the then-current quantity or subscription tier, unless either Party gives the other written notice of termination (including any partial termination to reduce quantities) at least thirty days prior to the expiration of the then-current Services term. If Customer has purchased the Services online via a self-serve mechanism and provided a payment method to Cubby for recurring charges, Customer may elect to terminate the Agreement via the Admin Console prior to the day a Renewal Term begins.
   3. Additional Subscriptions. The Services may be configured to allow Administrators or End Users to purchase additional subscriptions or quantities of Services or Add-Ons. Customer is responsible for understanding the settings and controls of the Services for purchasing additional Services. Cubby will charge Customer the applicable pro-rated amount for additional Services or Add-Ons for the remainder of the then-current Services Term based on Customer's then-current price unless otherwise set forth on the Order Form.
   4. Usage-based Subscriptions. If Customer elects to purchase any Services based on usage, Customer acknowledges that Cubby will charge Customer the Fees for the Services as set forth in the Order Form based on the usage calculated by Cubby.
3. Customer Obligations.
   1. Registration. Customer and its End Users may need to register for an End User Account to place orders or to access or use the Services. Account information must be accurate, current, and complete, and Customer agrees to keep this information up-to-date.
   2. Customer Administration of the Services. Customer may specify End Users as Administrators, including through multiple tiers of Administrators. Administrators may be able to: (a) access, disclose, restrict access to, or remove Customer Data; (b) purchase additional licenses, capacity, or other applicable quantity for the Services; and (c) provision, monitor, restrict, or terminate access to the Services by End Users. Customer is responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts. Cubby's responsibilities do not extend to the internal management or administration of the Services for Customer.
   3. End Users.
      1. Provisioning. For services sold based on End User Licenses, Customer may provision End User Accounts up to the number of End User Licenses purchased through one or more Order Forms. Each End User Account requires a paid End User License, and End User Accounts may not be shared by multiple individuals. End User Accounts may only be provisioned to, registered for, and used by a single End User. End User Accounts that are set as suspended by Customer require a paid End User License. If Customer deletes an End User Account, the End User License may be reallocated to provision a new End User Account.
      2. Responsibility. Customer is responsible for use of the Services by its End Users. Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in the Agreement and to allow Cubby to deliver the Services.
   4. Unauthorized Use or Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 13 if they reside in the United States or 16 if they reside anywhere else. If the law where the End User resides requires that the End User must be older in order for Cubby to lawfully provide the Services to the End User without parental consent, the End User must be that older age. Customer will ensure that it does not allow any person under 13 residing in the United States, or 16 if they reside anywhere else, to use the Services. Customer will promptly notify Cubby of any unauthorized use of or access to the Services.
   5. Restrictions. Customer will not: (a) sell, resell, or lease the Services, Software, or End User Licenses; (b) use the Services or Software for activities where use or failure of the Services or Software could lead to physical damage, death, or personal injury; (c) reverse engineer the Services or Software, or attempt or assist anyone else to do so, unless this restriction is prohibited by law; (d) use the Services or Software, including the export or re-export of Customer Data, in violation of Export Control Laws; (e) violate or circumvent any Service Limits of the Services or otherwise configure the Services to avoid Service Limits; (f) access the Services for the purpose of building a competitive product or service or copying its features or user interface; (g) use the Services for evaluation, benchmarking, or other comparative analysis intended for publication without Cubby's prior written consent; (h) remove or obscure any proprietary or other notices contained in the Services, including in any reports or output obtained from the Services; (i) use or permit the Services to be used for any illegal or misleading purpose; or (j) use the Services in a manner that violates the Cubby Acceptable Use policy.
   6. Compliance. Customer and its End Users must use the Services in compliance with the Acceptable Use Policy. Customer will comply with laws and regulations applicable to Customer's use of the Services. Customer will not take any action that would cause Cubby to violate EU Data Protection Laws, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, or any other applicable data protection, anti-bribery, anti-corruption, or anti-money laundering law. Customer must satisfy itself that: (i) the Services are appropriate for its purposes, taking into account the nature of the Customer Data; and (ii) the technical and organizational requirements applicable to Cubby under EU Data Protection Laws or other data protection laws, if applicable, are satisfied by the Security Measures and the Agreement.
   7. HIPAA. SERVICES OFFERED BY CUBBY ARE NOT DESIGNED FOR PROCESSING PROTECTED HEALTH INFORMATION. CUSTOMER MAY NOT USE THE SERVICES TO STORE, TRANSMIT, OR PROCESS THIS INFORMATION.
   8. Third-Party Apps and Integrations. If Customer uses any third-party service or applications, such as a service that uses an API, with the Services: (a) Cubby will not be responsible for any act or omission of the third-party, including the third-party's access to or use of Customer Data; and (b) Cubby does not warrant or support any service provided by the third-party. Customer will comply with any API limits associated with the Services plan purchased by Customer.
4. Customer Data.
   1. Customer Data Use. This Agreement constitutes Customer's instructions to Cubby to Process Customer Data. Cubby, Cubby personnel and its Subcontractors will only Process, access, use, store, and transfer Customer Data as Customer instructs in order to deliver the Services and to fulfill Cubby's obligations in the Agreement. If Customer accesses or uses multiple Services, Customer acknowledges and agrees that Cubby may transfer Customer Data between those Services. The categories of Personal Data to be processed by Cubby and the processing activities to be performed under this Agreement are set out in the Data Processing Agreement. Cubby will inform Customer of any legal requirement which prevents it from complying with Customer's instructions, unless prohibited from doing so by applicable law or on important grounds of public interest. Any Cubby personnel who have access to Customer Data will be bound by appropriate confidentiality obligations.
   2. Security Measures. Cubby will use industry standard technical and organizational Security Measures to transfer, store, and Process Customer Data. Customers can find additional information regarding Cubby's security practices for the applicable Services by reviewing Cubby's Security Page. Cubby may update the Security Page from time to time. Cubby will provide Customer with prior notice if Cubby updates the Security Page in a manner that materially diminishes the administrative, technical, or physical security features of the Services taken as a whole. Within five business days of receipt of this notice, Customer may elect to terminate the Agreement and associated Order Forms by providing written notice to Cubby.
   3. Third-Party Requests.
      1. Customer Responsibility. Customer is responsible for responding to Third-Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third-Party Requests and will contact Cubby only if it cannot comply with the Third-Party Request despite diligent efforts.
      2. Cubby Responsibility. If Cubby receives a Third-Party Request, Cubby will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) promptly notify Customer of Cubby's receipt of a Third-Party Request; (ii) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request, if Customer is otherwise unable to respond to the Third-Party Request. If Cubby is prohibited from notifying Customer of a Third-Party Request or Customer fails to promptly respond to any Third-Party Request, then Cubby may, but will not be obligated to do so, to the extent permitted by applicable law.
   4. Customer Data Sharing. The Services may enable End Users to share Customer Data, including to other Customer End Users and to third parties. Recipients of shared Customer Data may access, view, download, and share this Customer Data, including in and through their own Services accounts. Customer understands: (a) it is solely Customer's, and its End Users', choice to share Customer Data; (b) Cubby cannot control third parties with whom Customer has shared Customer Data; and (c) Customer and its End Users are solely responsible for their use of the Services, including any sharing of Customer Data through the Services. Certain Account Data such as End Users' names, profile pictures, or contact information may be viewable by other customers and users with whom End Users collaborate and by the entity that has authority to control a corporate email domain if you purchase the Services using an email address on that domain.
   5. Data Transfer. Customer agrees that Cubby and its Subcontractors may transfer Customer Data to and access, use, and store Customer Data in locations other than Customer's country.
   6. Aggregate/Anonymous Data. Customer agrees that Cubby will have the right to generate aggregate and anonymous data based on End Users' use of the Services and this data is owned by Cubby. Cubby may use this data for its business purposes during or after the term of this Agreement (including without limitation to develop and improve Cubby's products and services and to create and distribute reports and other materials). For clarity, Cubby will not disclose any aggregate or anonymous data externally in a manner that could reasonably identify Customer or its End Users. Customer is not responsible for Cubby's use of aggregate or anonymous data.
   7. Takedown Requests. If Customer receives any take down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the Services; and (ii) notify Cubby. If Cubby receives any take down requests or infringement notices related to Customer Data, Cubby may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
   8. Data Processing Agreement. To the extent Customer Data comprises Personal Data that is processed by Cubby on Customer's behalf, Customer and Cubby agree to the Data Processing Agreement. The Data Processing Agreement applies only to the Services, and does not apply to Beta Services.
5. Confidential Information.
   1. Use and Non-Disclosure. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Each Party, as the Receiving Party, will: (i) take reasonable measures to protect the Disclosing Party's Confidential Information including at least those measures it takes to protect its own confidential information of a similar nature; and (ii) not disclose Confidential Information to any third parties. A Party may disclose Confidential Information to its employees, advisors and consultants who have a need to know the Confidential Information, if that employee, advisor or consultant is bound to restrictions at least as protective of the other Party's Confidential Information as those set forth in this Agreement.
   2. Exceptions. Confidential Information does not include information that: (i) is or becomes generally known or available to the public, through no act or omission of the Receiving Party; (ii) was known, without restriction, prior to receiving it from the disclosing Party; (iii) is rightfully acquired from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; (iv) or is independently developed without access to any Confidential Information of the Disclosing Party.
   3. Permitted Disclosure. A Party may disclose Confidential Information to the extent required by any law or regulation if it gives the other Party reasonable advance notice, to the extent permitted, so that the other Party can seek to prevent or limit such disclosure. Notwithstanding the foregoing, the Parties' obligations with respect to Third Party Requests are specifically addressed in Section 4.4.
   4. Remedies. The Receiving Party acknowledges that a disclosure of Confidential Information in violation of these terms would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6. Payment.
   1. Fees. Customer will pay Cubby all applicable Fees, in the currency and pursuant to the payment terms indicated on the Order Form. Customer authorizes Cubby to charge Customer for all applicable Fees using Customer's selected payment method, and Customer will issue the required purchasing documentation. Fees are non-refundable except as required by law or as otherwise specifically permitted in the Agreement.
   2. Payment. Customer will pay Cubby invoices on the payment interval set forth in the Order Form. Cubby may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to Cubby.
   3. Taxes. Fees are exclusive of taxes and Customer is responsible for all Taxes. Cubby will charge Taxes when required to do so. If Customer provides Cubby or its reseller with a valid exemption certificate, Cubby will not collect the taxes covered by that certificate.
   4. Withholding Taxes. Customer will pay Cubby net of any applicable Withholding Taxes. Customer and Cubby will work together to avoid any Withholding Tax if exemptions, or a reduced treaty withholding rate, are available. If Cubby qualifies for a tax exemption, or a reduced treaty withholding rate, Cubby will provide Customer with reasonable documentary proof. Customer will provide Cubby reasonable evidence that it has paid the relevant authority for the sum withheld or deducted.
   5. Auto-renewals and Trials. IF CUSTOMER HAS ALREADY PROVIDED A PAYMENT METHOD TO CUBBY FOR RECURRING CHARGES AND CUSTOMER'S ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD, CUBBY MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES CUBBY THAT CUSTOMER WANTS TO DISABLE AUTO-RENEWAL OR CANCEL THE SERVICES IN ACCORDANCE WITH SECTION 2.2. Cubby may revise Services rates by providing the Customer at least thirty days' notice prior to the next charge.
   6. Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer: (i) must provide the purchase order number at the time of purchase; and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
   7. No Refunds. Subscription and usage or overage Fees are non-refundable and non-creditable, except where required by law. Cubby subscriptions may be cancelled, and such cancellations take effect at the end of your then-current subscription term (for example, if Customer is on a paid monthly subscription the cancellation will take effect the following month, but if Customer is on a paid yearly subscription the cancellation will take effect the following year).
7. Suspension.
   1. Of End User Accounts by Cubby. If an End User: (a) violates the Agreement; or (b) uses the Services in a manner that Cubby reasonably believes will cause it liability, then Cubby may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Cubby may do so.
   2. Of the Services. Cubby may suspend Customer's access to the Services if: (i) Customer's account is overdue; or (ii) Customer has exceeded any Service Limits. Cubby may also suspend Customer's access to the Services or remove Customer Data if it determines that: (a) Customer has breached any portion of this Agreement, or (b) suspension is necessary to prevent a Security Emergency, provided that Cubby will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. Cubby will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 7.2. However, unless this Agreement has been terminated, Cubby will cooperate with Customer to promptly restore access to the Services once it verifies that Customer has resolved the condition requiring suspension.
8. Intellectual Property Rights.
   1. Reservation of Rights. Except as expressly set forth herein, the Agreement does not grant: (a) Cubby any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in the Services or Cubby trademarks and brand features. Customer acknowledges that it is obtaining only a limited right to use the Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its End Users) under this Agreement.
   2. Limited Permission. Customer grants Cubby only the limited rights that are reasonably necessary for Cubby to deliver the Services. This limited permission also extends to Subcontractors or Sub-processors.
   3. Feedback. Cubby may use, modify, and incorporate into its products and services, license and sublicense, any Feedback that Customer or End Users may provide without any obligation to Customer. Customer agrees to: (i) and hereby does, assign to Cubby all right, title, and interest in any Feedback; and (ii) provide Cubby any reasonable assistance necessary to document and maintain Cubby's rights in the Feedback.
9. Term & Termination.
   1. Agreement Term. The Agreement will remain in effect for the Term.
   2. Termination. Either Party may terminate the Agreement, including all Order Forms, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days. Cubby may terminate this Agreement and suspend Customer's access to the Services if required to do so by law or for an egregious violation by Customer of the Acceptable Use Policy.
   3. Effects of Termination. If the Agreement terminates: (a) except as set forth in this Section, the rights and licenses granted by Cubby to Customer will cease immediately; (b) Customer will delete (or, at Cubby's request, return) any and all copies of any Cubby code, documentation, passwords or access codes, and any other Cubby Confidential Information in Customer's possession, custody, or control; (c) Customer may, prior to termination, request reasonable additional time to export its Stored Data, provided that Cubby may charge Customer for this extended access based on Cubby's then-current standard fees; and (d) Cubby will delete any End User Accounts and Stored Data in Customer's account in a commercially reasonable period of time following receipt of an Administrator's request to do so prior to termination of the Services. Cubby may make instructions available to Customer regarding how to submit the Administrator request described in clause (d) of the previous sentence and Customer is responsible for following these instructions to initiate a deletion.
   4. Survival. The following sections will survive expiration or termination of the Agreement: 4.3 (Third Party Requests), 6.2 (Payment), 8 (Intellectual Property Rights), 9.3 (Effects of Termination), 9.4 (Survival), 10 (Indemnification), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Disputes), and 14 (Miscellaneous). Notwithstanding the foregoing, Section 4.3 (Third-Party Requests) shall not survive termination if Cubby has exercised a right to terminate the Agreement.
10. Indemnification.
    1. By Customer. Customer will indemnify, defend, and hold harmless Cubby from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any Claim against Cubby and its Affiliates regarding: (a) Customer Data; (b) Customer Domains; (c) Customer's or Customer's End Users' use of the Services in violation of the Agreement.
    2. By Cubby. Cubby will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any Claim against Customer to the extent based on an allegation that Cubby's technology used to deliver the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Cubby have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by Cubby; and (b) any content, information, or data provided by Customer, End Users, or other third parties, including such data protected by HIPAA.
    3. Possible Infringement. If Cubby believes the Services or Software infringe or may be alleged to infringe a third party's Intellectual Property Rights, then Cubby may: (a) obtain the right for Customer, at Cubby's expense, to continue using the Services or Software; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services or Software so that they no longer infringe. If Cubby does not believe the options described in this section are commercially reasonable, then Cubby may suspend or terminate Customer's use of the affected Services or Software, with a pro-rata refund of prepaid fees for the Services or Software.
    4. General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE CUBBY AND CUSTOMER'S ONLY REMEDY UNDER THE AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
11. Disclaimers.
    1. Generally. THE SERVICES, SOFTWARE, AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, CUBBY AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUBBY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. CUBBY WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-CUBBY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS). CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES OR SOFTWARE IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
    2. Beta Services.
       1. Use In Customer's Discretion. Despite anything to the contrary in the Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same development practices to which the Services have been subjected; and (e) CUBBY WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK.
       2. Feedback. Cubby offers Beta Services in order to get user feedback. In exchange for using Beta Services, Customer agrees that Cubby may contact Customer and its End Users to obtain Feedback regarding Beta Services.
       3. Confidential. Beta Services are confidential until officially launched by Cubby and Customer will treat the Beta Services, and any documentation, specifications, or instructions related to the Beta Services, as Confidential Information of Cubby.
12. Limitation of Liability.
    1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR CUBBY OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR CUBBY AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THE AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, CUBBY'S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF $50,000 OR THE AMOUNT PAID BY CUSTOMER TO CUBBY HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. FOR FREE ACCESS SUBSCRIPTIONS, TRIALS, OR BETA SERVICES, CUBBY'S TOTAL LIABILITY WILL NOT EXCEED, IN AGGREGATE, FIFTY U.S. DOLLARS ($50).
    3. Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 12 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY CUBBY SERVICES OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. Disputes.
    1. Informal Resolution. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in Section 14.6. If a dispute is not resolved within thirty days of notice, Customer or Cubby may bring a formal proceeding.
    2. Arbitration. Customer and Cubby agree to resolve any claims relating to the Agreement or the Services through final and binding arbitration, except as set forth below. This includes disputes arising out of or relating to the interpretation or application of this “Arbitration” subsection, including its scope, enforceability, revocability, or validity. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in New York, New York, or any other location both parties agree to in writing. The arbitrator may award relief only individually and only to the extent necessary to redress Customer's or Cubby's individual claim(s); the arbitrator may not award relief on behalf of others or the general public. Our past, present and future affiliates and agents may invoke our rights under this “Disputes” Section in the event they become involved in a dispute with you; otherwise, these Terms do not give rights to any third parties.
    3. Exception to Arbitration. Either Party may bring a lawsuit in the federal or state courts of New York County, New York solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Cubby consent to venue and personal jurisdiction there.
    4. NO CLASS ACTIONS. Customer may only resolve disputes with Cubby on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
    5. Severability. If any part of this “Disputes” section is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this “Disputes” section will be unenforceable in its entirety. If you are found to have a non-waivable right to bring a particular claim or to request a particular form of relief that the arbitrator lacks authority to redress or award according to this “Disputes” section, then only that respective claim or request for relief may be brought in court, and you and we agree that litigation of any such claim or request for relief shall be stayed pending the resolution of any individual claim(s) or request(s) for relief in arbitration.
14. Miscellaneous.
    1. Terms Modification. Cubby may revise this Agreement from time to time and the most current version will always be posted on the Cubby website. If a revision, in Cubby's sole discretion, is material, Cubby will notify Customer (by, for example, sending an email to the email address associated with the applicable account). By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within thirty days of receiving notice of the change.
    2. Entire Agreement. The Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire agreement between the Parties related to this subject matter. The Data Processing Agreement, Customer invoices, and the Order Forms executed by the Parties, are hereby incorporated into the Agreement by this reference.
    3. Interpretation of Conflicting Terms. If there is a conflict between the documents that make up the Agreement, the documents will control in the following order: the invoice, the Order Form, the DSA. The terms and conditions of the Agreement will be considered Confidential Information of Cubby. Customer agrees that any terms and conditions on a Customer purchase order will not apply to the Agreement and are null and void. If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and the Agreement will control if there is a conflict.
    4. Governing Law. THE AGREEMENT WILL BE GOVERNED BY NEW YORK LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
    5. Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
    6. Notice. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Cubby must be sent to Cubby Legal at support@cubby.nyc.
    7. Waiver. A waiver of any default is not a waiver of any subsequent default.
    8. Assignment. Customer may not assign or transfer the Agreement or any rights or obligations under the Agreement without the written consent of Cubby, except that Customer may assign the Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to Cubby. Cubby may not assign the Agreement without providing notice to Customer, except Cubby may assign the Agreement or any rights or obligations under the Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
    9. No Agency. Cubby and Customer are not legal partners or agents, but are independent contractors.
    10. Subcontracting. Customer consents to Cubby's appointment of Subcontractors, including Sub-processors, to perform the Services. Cubby will remain liable for all acts or omissions of its Subcontractors or Sub-processors, and for any subcontracted obligations.
    11. Force Majeure. Except for payment obligations, neither Cubby nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
    12. No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under the Agreement.
15. Definitions.

"Acceptable Use Policy" means the acceptable use policy set forth at the following link, or other link Cubby may provide: https://cubby.nyc/acceptable-use.

"Account Data" means the account and contact information submitted to the Services by Customer or End Users.

"Add-On(s)" means an additional feature, component, service, or functionality that can be separately purchased or provisioned for use with certain Services.

"Administrator" means a Customer-designated technical End User who administers the Services to End Users on Customer's behalf, through multiple tiers.

"Admin Account" means an administrative account provided to Customer by Cubby for the purpose of administering the Services.

"Admin Console" means the online tool provided by Cubby to Customer for use in administering the Services.

"Affiliate" means any entity that controls, is controlled by or is under common control with a Party, where "control" means the ability to direct the management and policies of an entity.

"Agreement" means, collectively, this DSA, each applicable Order Form, and the Data Processing Agreement.

"Beta Services" means services or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings.

"Claim" means a claim by a third party, including a regulatory penalty.

"Confidential Information" means information disclosed by one Party to the other Party that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any performance information relating to the Service and the terms and conditions of this Agreement shall be deemed Confidential Information of Cubby without any marking or further designation.

"Customer Data" means Stored Data, Account Data, and messages, comments, structured data, images, and other content submitted to the Services by Customer or End Users.

"Customer Domains" means Customer's Internet domain names.

"Data Processing Agreement" means the data processing agreement set forth at the following link: https://cubby.nyc/data-processing or other link that Cubby may provide.

"Disclosing Party" means the Party disclosing Confidential Information to the other Party.

"EEA" means European Economic Area.

"Effective Date" means the date this DSA is entered into by the Parties, either by acceptance online or by the signing of an Order Form.

"End Users" means users of Customer's Services account. End Users may include Customer's and its Affiliate's employees, consultants, agents, representatives, students or any other person authorized by Customer to use the Services through Customer's account.

"End User Account" means a Cubby hosted account provisioned by Customer through the Services for an End User.

"End User License" means a user license purchased by Customer which enables Customer to provision an End User Account.

"EU Data Protection Laws" means, to the extent in force and applicable from time to time, those laws implementing the EU General Data Protection Regulation (2016/679) and any implementing laws in each EU member state.

"Export Control Laws" means all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State.

"Feedback" means any feedback, comments, or suggestions on the Services or Beta Services that Customer or End Users may send Cubby or post in Cubby's forums. Feedback may include oral or written comments, suggestions, error reports, and analysis.

"Fees" means the amounts invoiced to Customer by Cubby.

"Initial Services Term" means the term for the applicable Services beginning on the Provisioning Date and continuing for the duration set forth on the Order Form.

"Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.

"Order Form" means an ordering document, order page, or user interface through which Customer purchases a subscription to the Services or enables access to the Services.

"Personal Data, "Process," and "Processing"" have the meaning given to those terms in the EU Data Protection Laws.

"Provisioning Date" is the date upon which Cubby makes the Services available to Customer.

"Receiving Party" means the Party receiving Confidential Information from the other Party.

"Renewal Term" means, unless otherwise agreed to in writing by the Parties, the renewal term of the same duration as the Initial Services Term or preceding Renewal Term.

"Security Emergency" means: (i) use of the Services that does or could disrupt the Services, other customers' use of the Services, or the infrastructure used to deliver the Services; or (ii) unauthorized third-party access to the Services.

"Security Measures" means the technical and organizational security measures implemented by Cubby for the applicable Services.

"Security Resources" means any webpages, resources, guides, and whitepapers regarding technical or organizational measures that Cubby has implemented for the applicable Services that are described on the Cubby Security Page.

"Services" means the services ordered by Customer on the Order Form, excluding any third-party Add-Ons (as indicated at the time of purchase or enablement).

"Services Term" means the Initial Services Term and all Renewal Terms for the applicable Services.

"Service Limits" means rate, storage, End User or other limits on Customer's use of the Services as described in the applicable Order Form or product description page.

"Software" means the client software provided as part of the Services, either directly by Cubby or through third party distribution channels such as app stores.

"Stored Data" means the files uploaded to the Services by Customer or End Users.

"Subcontractor" means an entity to whom Cubby subcontracts any of its obligations under the Agreement.

"Sub-processor" means an entity who agrees to Process Customer Data on Cubby's behalf, or on behalf of another Cubby sub-processor, in order to deliver the Services.

"Taxes" means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), duty or other charge of any kind or nature excluding tax that is based on Cubby's net income, associated with the Services or Software, including any related penalties or interest.

"Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of all applicable Services Terms; or (ii) the Agreement is terminated as set forth herein.

"Third-Party Request" means a request from a third-party for records relating to an End User's use of the Services including information in or from an End User Account, or from Customer's Services account. Third-Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users, or an End User's authorized representative, permitting a disclosure.

"Withholding Taxes" mean any income taxes that are imposed on Cubby or Customer's reseller in which Customer is required by law to withhold or deduct on the payment to Cubby or Customer's reseller.