Last Modified August 24, 2021

These Terms and Conditions (“Terms and Conditions”) are incorporated by reference into the Order Form entered into between Cube Planning Inc. (“Cube”) and the "Customer" identified in the applicable Order Form(s). These Terms and Conditions are a binding agreement applicable to the Customer's use of the Services (as herein defined). By executing the Order Form, the Customer agrees to the terms of the Order Form included therein, and these Terms and Conditions. As referenced in the Order Form, this “Agreement” includes and incorporates (i) the Order Form, (ii) any Order Forms previously or subsequently entered into by the parties, and (iii) these Terms and Conditions, all of which are hereby incorporated by reference. Capitalized terms used in these Terms and Conditions and not otherwise defined shall have the meanings set forth in the Order Form.

If the individual accepting these Terms and Conditions is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these Terms and Conditions, in which case the term “Customer” shall refer to such entity. If the individual accepting these Terms and Conditions does not have such authority, or does not agree with these Terms and Conditions, such individual must not accept these Terms and Conditions and may not use the Services.

Admin Account means the account that will have the authority to create and manage Customer’s account on the Platform and invite team members to access the Platform to upload, view, modify and collaborate on Customer Materials.

Customer Materials means, without limitation, all information, files, data, and other materials added, created, uploaded, submitted, distributed, or posted to the Services by Customer or any of Customer’s Authorized Users.

Documentation means any user guide, help information and other documentation and information regarding the Services that is delivered by Cube to Customer in electronic or other form, if any, including any updates provided by Cube from time to time.

Platform means the SaaS platform provided by Cube to Customer, which enables Customer and its Authorized Users to upload, view, modify and collaborate on Customer Materials, including all software, interfaces, tools, utilities, templates, forms, and other technologies (and any related intellectual property) including the API, relating thereto, excluding Customer Materials.

Services means the Platform, the Documentation and any other services or support, including Implementation & Onboarding Services, provided by Cube hereunder.

2.1. Order Forms. This Agreement will be implemented through one or more written work orders that reference this Agreement (Order Forms). Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein.

2.2. Access and Account Setup. As part of the implementation process, Customer will identify an administrative user name and password that will be used to set up Customer’s Admin Account. Customer may use the Admin Account to create subaccounts for its employee users (each with unique login IDs and password) (each, an Authorized User). Customer shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Customer. Cube reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Cube immediately upon learning of any unauthorized use of Customer’s account or any other breach of security. From time to time, Cube’s personnel may log in to the Services under Customer’s Admin Account in order to maintain or improve the Services, including to provide Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.

2.3. Platform. Subject to the terms and conditions of this Agreement, Cube will use commercially reasonable efforts to provide the Services and implement and operate the Platform for Customer. Subject to the terms and conditions of this Agreement, Cube grants Customer a non-exclusive license to use and access the Services solely for Customer’s internal business purposes by Authorized Users. Customer may use the Documentation solely in connection with the Services. Customer acknowledges that Cube’s Services utilize and/or include certain products and services of a third party, Boomi, Inc. (“Boomi”), an affiliate of Dell, Inc. (“Dell”). Customer’s use of such products and services (“Boomi Products”) is subject to the applicable terms of the Boomi Master Services Agreement located at www.boomi.com/msa (the “Boomi MSA”), as of the date Boomi grants access to the Boomi Products to Customer.  Dell and its affiliates including, but not limited to, Boomi, Inc., will be intended third party beneficiaries of the Boomi MSA and therefore entitled to enforce the terms of the Boomi MSA directly against Customer.   Customer is responsible for any acts or omissions of Customer under the Boomi MSA.

2.4. Modifications. Cube reserves the right to modify or discontinue the Services (in whole or in part) at any time by giving ninety (90) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Services used by Customer in accordance with this Agreement, Customer may terminate this Agreement upon at least fifteen (15) days’ prior written notice to Cube.

2.5. Customer Materials. Customer hereby grants Cube a worldwide, non-exclusive, revocable, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Materials on the Platform and in connection with providing the Services to Customer. 

Except as expressly permitted in this Agreement, Customer shall not

(a) use any of Cube’s Confidential Information (defined below) or the Documentation to create any service, software, documentation or data that is similar to any aspect of the Services or Platform,

(b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform of Services, or the underlying ideas, algorithms or trade secrets therein,

(c) encumber, sublicense, transfer, rent, lease, time-share or use the Services or Platform in any service bureau arrangement or otherwise for the benefit of any third party,

(d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Services,

(e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or

(f) permit any third party to engage in any of the foregoing proscribed acts. Customer may not access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or form any other benchmarking or competitive purposes.

4.1. Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Customer Materials.

4.2. Cube. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Cube (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services and Platform, all copies, modifications and derivative works thereof, and all Cube trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights.

4.3. Feedback. Cube shall own any and all suggestions for correction, change or modification to the Platform or Services, and other feedback, information and reports provided to Cube hereunder (collectively, Feedback), and Customer, to the extent required, Customer shall and hereby does assign any rights in such Feedback to Cube. Customer agrees to assist Cube, at Cube’s expense, in obtaining intellectual property protection for such Feedback, as Cube may reasonably request.
4.4. Aggregate Data. Customer agrees that Cube may aggregate measures of usage and performance of the Services, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services (General Knowledge), including that it could have acquired performing the same or similar services for another Customer. Subject to confidentiality provisions of this agreement, Customer further agrees that Cube shall have the right (a) to create anonymized compilations and analyses of any data submitted to the Platform (Aggregate Data), and (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (Analyses).  Cube shall have exclusive ownership rights to, and the exclusive right to use and distribute, subject to Cube confidentiality obligations under this Agreement, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other Customers and prospective Customers of the Services; provided, however, that Cube shall not distribute Aggregate Data and Analyses in a manner that is identifiable as originating from Customer without Customer’s written consent.

5.1. Definition. Each party agrees that the business, technical and financial information, including without limitation, the Platform, the Services and Customer Materials and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (Confidential Information). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party without breach of its nondisclosure obligations hereunder.

5.2. Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know such Confidential Information for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as those contained this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.

5.3. Return of Confidential Information. Except as expressly allowed herein, promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.

5.4. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to

(a) promptly notify the disclosing party in writing of such requirement to disclose and

(b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

6.1. Fees. Customer agrees to pay Cube all fees and expenses in the amounts and at the times specified in the applicable Order Form or as otherwise provided in this Agreement. The Subscription Fee for each Renewal Term shall be invoiced as set forth in an Order Form. Payment obligations cannot be cancelled and no Subscription Term can be terminated early, except that early termination of the Agreement can occur only as set forth in Section 10.

6.2. Payment Terms.

1. Payments shall be made in US dollars, in full without set-off, counterclaim or deduction as set forth in an Order Form. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. In addition to its other rights and remedies, Cube may, at its option, suspend Customer’s access to the Services or terminate this Agreement in the event that Customer is not current in the payment of fees owed to Cube.
2. At Customer’s option, payments may be made using a third-party payment processor (Payment Processor) to bill Customer through a payment account linked to Customer’s account on the Services (Billing Account). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Cube is not responsible for any error by, or other acts or omissions of, the Payment Processor. If Customer chooses to be billed through a Payment Processor, Customer agrees to pay Cube, through the Payment Processor, the Fees in accordance with the applicable payment terms, and Customer authorizes Cube, through the Payment Processor, to charge Customer’s chosen payment provider (Payment Method). Customer agrees to make payment using that selected Payment Method. Cube reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

6.3. Taxes and Expenses. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Cube’s net income.

7.1. General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

7.2. Customer. Customer represents and warrants to Cube that Customer owns all rights, title and interest in and to the Customer Materials, or that Customer has otherwise secured all necessary rights in the Customer Materials as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement. Customer further represents and warrants to Cube that Customer will not, or allow a third party to, either (a) take any action, or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Services that contains any viruses, worms, time bombs, Trojan horses, malware, spyware, and other malicious code, files, scripts, agents or programs designed to damage, destroy, or alter any software, hardware or data stored therein or breach the security thereof.

7.3. Cube. Cube represents and warrants to Customer that the Services (i) will be provided in a professional and workmanlike manner, (ii) will comply to the Documentation, and (iii) will not contain any viruses, worms, time bombs, Trojan horses, malware, spyware, and other malicious code, files, scripts, agents or programs designed to damage, destroy, or alter any software, hardware or data stored therein or breach the security thereof.

7.4. Disclaimers. EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, CUBE HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CUBE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD PARTY PRODUCTS OR SERVICES.

8.1. Customer. Customer agrees to defend Cube against any claim by a third party that is resulted from the Customer Materials (provided they are used by Cube as authorized under this Agreement), and to indemnify Cube for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.

8.2. Cube.

1. Indemnity. Except as provided below, Cube agrees to (i) defend Customer against any claim by a third party: (A) that the Services infringes any intellectual property right, including without limitation, a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party, (B) for data breach, and (ii) indemnify Customer for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Services becomes or, in Cube’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Cube may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to Cube, then Cube may (3) terminate this Agreement upon written notice to Customer. In the event of such termination, Fees that were pre-paid for the current term would be refundable on a pro-rata basis.
2. Exclusions. Cube shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services or Platform in a material breach of this Agreement or not in compliance with the Documentation, (ii) modifications, alterations, combinations, requirements or enhancements of the Services or Platform not created by or for Cube, (iii) any Customer Materials (to the extent used strictly in accordance with this Agreement), (iv) Customer’s continuing allegedly infringing activity after being notified thereof by Cube in writing or (v) Customer’s continuing use of any version of the Services or Platform after being provided modifications that would have avoided the alleged infringement.

8.3. Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.

EXCEPT AS PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OF USE, LOSS OF DATA, INACCURACY OF CUSTOMER MATERIALS (TO THE EXTENT USED STRICTLY IN ACCORDANCE WITH THIS AGREEMENT), LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE TO IT HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT WITH RESPECT TO PRODUCTS AND SERVICES OF THIRD PARTY SERVICE PROVIDERS, THE LIMITATION IN SECTION 9(C) ABOVE SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS IN SECTION 8 OR BREACH OF SECTION 11.11 (COLLECTIVELY, THE “EXCLUDED CLAIMS”), AND INSTEAD, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE EXCLUDED CLAIMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF TEN (10) TIMES THE AMOUNTS PAID OR PAYABLE TO IT HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES .

10.1. Term. This Agreement shall commence on the Effective Date and continues until terminated as set forth in these Terms and Conditions (the Term).

10.2. Termination. This Agreement may be earlier terminated by either party (a) upon written notice to the other party if there are no Order Forms currently in effect, (b) if the other party materially breaches a provision of this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice of such breach from the non-breaching party, or (c) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

10.3. Effect of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (b) the provisions of Sections 1, (Definitions), 3 (Restrictions), 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments), 7 (Limited Warranty and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3 shall survive.

11.1. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed or electronically acknowledged by the parties hereafter, shall have no effect under this Agreement.

11.2. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile (e.g., .pdf or electronic signature) copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.

11.3. Modification and Waiver. No change, consent or waiver under this Agreement will be binding on Cube unless made in writing and physically signed by an authorized representative of Cube. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

11.4. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, 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.

11.5. Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in New York County, New York, and both parties consent to the jurisdiction of such courts with respect to any such actions.

11.6. Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

11.7. Notices. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

11.8. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

11.9. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

11.10. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

11.11. Security Measures. Cube will maintain a comprehensive information security program consistent with industry standards that contains appropriate administrative, technical and physical safeguards reasonably designed to protect personally identifiable information from unauthorized disclosure. Such information security program will include business continuity and disaster recovery plans that are consistent with industry standards and are designed to protect against loss of Customer Materials. Cube shall at all times be in compliance with all standards within the most recent versions SSAE SOC 2 Type I & II, for which Cube is certified, and shall annually be audited by a reputable third party as compliant with such standard. In the event that Cube has reason to believe that there has been any unauthorized access to, or loss of, personally identifiable information from its systems or premises, then it will promptly notify Customer.