Effective Date: 01/04/2021
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (“AGREEMENT”) OR ACCESSING OR USING ANY SERVICE OFFERED BY UNBOXED, INC. (“UNBOXED”) IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICE OFFERED BY UNBOXED. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Unboxed pursuant to any Unboxed ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Services through any request, online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Modifications to this Agreement: From time to time, Unboxed may modify this Agreement. Unless otherwise specified by Unboxed, changes become effective for Customer upon renewal of Customer's current Subscription Term or entry into a new Order Form. Unboxed will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. If Unboxed specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
2. Services and Support
2.1. Services Overview. Unboxed provides an engagement and customer data platform for collecting, analyzing, and exporting end user data for the purposes of marketing and personalizing end user experiences and end user services as well as messaging through a software-as-a-service (collectively, “Services”).
2.2. Eligibility. You may use the Services only if you can form a binding contract with Unboxed, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 13 is strictly prohibited and in violation of this Agreement. The Services are not available to any Customers previously removed from the Services by Unboxed.
2.3. Subject to the terms of this Agreement, Unboxed will use commercially reasonable efforts to provide Customer the Services.
2.4. Subject to the terms hereof, Unboxed will provide Customer with reasonable technical support services in accordance with Unboxed’s standard practice.
3. Proprietary Rights and Customer Data
3.1. Ownership. Unboxed shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.2. Customer is solely responsible for Customer Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Customer Data; (c) any claims that Customer Data infringes, misappropriates, or otherwise violates the rights of any third party; and (d) backing up and maintaining Customer Data.
3.3. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Unboxed. Subject to the terms of this Agreement, Customer hereby grants to Unboxed a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.4. Notwithstanding anything to the contrary, Unboxed shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Unboxed will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Unboxed offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.5. Consent to the Collection and Use of Customer Data. In connection with any Customer Data, you hereby represent and warrant that (a) any personally identifiable information, including without limitation if such information is in aggregate form, about your end users that you provide to Unboxed, directly or indirectly, hereunder was, is, and will be collected with the informed consent of such end users, (b) you have obtained all necessary rights, releases, and permissions to provide Customer Data to Unboxed, and (c) the collection, use, and disclosure of such information by you does not violate any laws or rights of any third party, including without limitation any Intellectual Property Rights, rights of privacy, or rights of publicity, and is not inconsistent with the terms of any applicable privacy policies.
3.6. Unboxed takes no responsibility and assumes no liability for any Customer Data that you or any other user or third party provides, posts, publishes or transmits over the Service. You shall be solely responsible for Customer Data collected and the consequences of using, disclosing, or transmitting it, and you agree that Unboxed is only acting as a passive conduit.
Unboxed agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Services or Customer Data. However, Unboxed will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Unboxed’s control.
5. Payment of Fees
5.1. Customer will pay Unboxed the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Unboxed reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Unboxed has billed Customer incorrectly, Customer must contact Unboxed no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Unboxed’s customer support department.
5.2. Unboxed may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Unboxed thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Unboxed’s net income.
6. Term and Termination
6.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Implementation and Professional Services
Unboxed will provide the professional consulting services ("Implementation and Professional Services") purchased in the applicable Order Form. The scope of Implementation and Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information ("SOW"). Unless Implementation and Professional Services are provided on a fixed-fee basis, Customer will pay Unboxed at the per-hour rates set forth in the Order Form (or, if not specified, at Unboxed’s then-standard rates) for any excess services. Customer will reimburse Unboxed for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Implementation and Professional Services in support of authorized use of the Services and subject to the terms regarding Customer's rights to use the Services set forth in Section 2 and the applicable SOW, but Unboxed will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Unboxed (or its agents).
Each party will indemnify and hold harmless the other party and its successors and their respective affiliates, officers, directors and employees against and from all third party: claims, actions, demands, damages, liability and expenses (including, without limitation, court costs and reasonable attorneys’ fees) (together, “Claims”) arising out of or in connection with the indemnifying party’s breach or alleged breach of Sections 2 or 3 of this Agreement. You will further indemnify and hold harmless Unboxed and our successors and our affiliates, officers, directors and employees against and from all Claims arising out of or in connection with the Sites, including without limitation any violation or alleged violation of any law or third-party rights by the Sites or any data, content, or information contained therein or transferred thereby. The indemnifying party's obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity (provided however, the failure to give timely notice shall not relieve the indemnifying party of its obligations under this section except to the extent that such untimely notice materially impairs the ability of the indemnifying party to defend); (ii) granting complete control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in defense and settlement of such Claim. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect to which indemnified party is or could be indemnified hereunder unless such settlement either (a) includes an unconditional release of the indemnified party from all liability on all Claims that are the subject matter of such proceeding or (b) is consented to in writing by the indemnified party (which consent shall not be unreasonably withheld).
9. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL. IN NO CASE SHALL UNBOXED BE LIABLE FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO UNBOXED FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Unboxed includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Unboxed to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
11. Warranty and Disclaimer
Unboxed shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Unboxed or by third-party providers, or because of other causes beyond Unboxed’s reasonable control, but Unboxed shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, UNBOXED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND UNBOXED DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Customer agrees that Unboxed may use your name, logo, or any other identifying words or marks used by and/or associated with you to identify you as a customer of Unboxed, for use in connection with marketing, promoting, and advertising the Service, for use in customer references and case studies involving you, and for use in other activities related to Unboxed’ business. Customer otherwise agrees to reasonably cooperate with Unboxed to serve as a reference account upon request. At the request of Unboxed, Customer agrees to the issuance of a joint press release within 90 days of the Effective Date.
13.1. Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Unboxed in any respect whatsoever.
13.2. Assignment. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities.
13.3. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13.4. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
13.6. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
13.7. Waivers. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.8. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.