END USER LICENSE AGREEMENT
Effective Date: 1st of October 2016
This End User License Agreement (“Agreement”) applies to the Cubigo Platform (the “Platform”), and the Cubigo applications (Cubigo Cubes™), and related applications and content, including text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available to you through the Platform (the "Licensed Content”), and which are owned by Cubigo, Inc. (the “Company”). The Platform, Cubigo Cubes™, and Licensed Content will be individually and collectively referred to as the “Cubigo Assets”.
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING OR ACCESSING CUBIGO ASSETS. BY CLICKING THE ACCEPTANCE BUTTON AND (1) INSTALLING THE PLATFORM OR (2) CONTINUING TO USE OR ACCESS THE PLATFORM, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES YOU DO NOT ACCEPT THE TERMS, AND DO NOT REGISTER AN ACCOUNT OR ACCESS THE PLATFORM.
This Agreement sets forth the terms and conditions (“Terms”) of your use of Cubigo Assets. For the purposes of this Agreement, "you" means you, the Individual or Institutional End User, and "Licensor" means the entity that gave you access to the Platform—either the Company, its subsidiaries or affiliates, or your post-acute care provider (e.g., assisted living facility, continuing care community, skilled nursing facility).
The Company may change, modify or supplement the Terms at any time, for any reason, without prior notice, at its sole discretion. You may not supplement, modify or improve these Terms in any way. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on the Platform. We will notify you if we make a modification that materially changes your rights. If you continue to use Cubigo Assets after such notification, that is an acknowledgement that you accept the modified Terms. Whenever an Individual or Institutional End User accesses or uses Cubigo Assets, the latest version of the Terms applies.
By continuing to access or use Cubigo Assets, you agree as follows:
* You have paid for a software license, where applicable;
* You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
* You will access and use the Platform in a manner consistent with applicable laws and regulations and in accordance with the Terms as they may be amended by the Company from time to time; and
* You understand, accept, and have received this Agreement and its Terms, and acknowledge and demonstrate that you can access this Agreement if and when needed.
If you do not agree with and accept the Terms in this Agreement, please discontinue all further use of Cubigo Assets. Do not continue the installation or registration process and immediately delete all installed files, if any, of the accompanying Cubigo Assets from your computer or mobile device.
Section 1.1 Application. Software available under this Agreement, including the Cubigo Platform and Cubes™.
Section 1.2 Company. Cubigo, Incorporated.
Section 1.3 Cubigo Platform. The online platform, provided by Company, from which End User may access several Cubes that each serve to enable elderly senior citizens to live independently for a longer time and assist them in daily life.
Section 1.4 Cube™. A sub-application developed and made available to End Users via the Platform.
Section 1.5 Cubigo Cube™. A Cube developed and owned by Company that can be accessed/used via the Cubigo Platform.
Section 1.6 Individual End User. Individuals for whom the Applications are designed and the registered users of Company products and services.
Section 1.7 Institutional End User. Employees, officers, directors, or agents of Licensors who are registered users of Platform.
Section 1.8 Intellectual Property Rights. All intellectual, industrial and other property rights (whether registered or not), including, but not limited to copyright, neighboring rights, trademarks, trade names, logos, drawings, models or applications for registration as a drawing or model, patents, applications for patents, domain names, know-how, as well as rights to databases, computer programs and semiconductors.
Section 1.9 Licensed Content. All marks, data, videos, presentations, articles, documentation, Cubigo Cubes™, and other content available through and on the Platform and Cubigo Cubes™. Content may be generated by Company, its licensors, suppliers or partners.
Section 1.10 Licensor. (1) The Company or (2) The healthcare entity that provides services to Individual End Users (e.g., independent and assisted living companies, home health companies, and other post-acute providers), and which purchases a license to access the Platform.
Section 1.11 Provider. Any person or company that offers services and/or products through a Cube™ on the Cubigo Platform, including, but not limited to, the suppliers and partners of Company.
Section 1.12 Provider Content. The content of a third-party Provider’s Cube™.
Section 1.13 Service Provider. Third party vendors that provide functionality and support for Company.
Section 1.14 User Content. Information submitted by an Individual and Institutional End User to the Company via the Platform or Cubes™.
II. Grant of License to End User
Section 2.1 Licensor hereby grants to you a single, non-exclusive, non-transferable, limited personal license to access and use Cubigo Assets only for the purposes described herein. This license is conditioned on your continued compliance with the Terms in this Agreement. Except for any content you generate, Cubigo Assets and their underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. Cubigo Assets are protected by international copyright laws and conventions as well as other intellectual property laws and treaties.
Section 2.2 Cubigo Assets are intended for the personal, non-commercial use of Individual End Users. Licensors are permitted to provide access to the Platform to their residents and staff as agreed to in the Master Service Agreement.
Section 2.3 You may not rent, lease, lend, sell, transfer, redistribute, or sublicense Cubigo Assets, except that you may, after prior written notification to Licensor, transfer the Cubigo Assets as a whole to a third party, so long as you do not retain any copies of the Cubigo Assets or parts thereof and such third party accepts the Terms of this Agreement.
Section 2.4 You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of Cubigo Assets, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with Cubigo Assets), without the Company’s express written consent. You must make best efforts to prevent any officers, employees, agents or independent contractors from doing the same.
Section 2.5 You may not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Cubigo Assets. If you make an authorized copy of Cubigo Assets, you agree to produce any and all copyright, trademark, service mark or other proprietary rights notices on those copies.
Section 2.6 No license is granted to you in the human readable code of Cubigo Assets (source code). Except as provided below, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in Cubigo Assets. You may not use or access Cubigo Assets or any other Company materials with the aim of creating products or services with substantially the same function as Cubigo Assets.
Section 2.7 You agree that you have no right, power or authority to make any modifications to or unauthorized copies of Cubigo Assets.
Section 2.8 You may not use, display, mirror or frame the Cubigo Assets, any of their parts, their name, trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent.
Section 2.9 You may not access or tamper with non-public areas of the Cubigo Assets or their systems, test the vulnerability of the Cubigo Assets’ systems, breach any security or authentication measures, circumvent any technological measure implemented by Company or any other third party (including another user) to protect the Cubigo Assets, or access the Cubigo Assets through the use of any mechanism other than through the use of Company software.
Section 2.10 No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company, except for the licenses and rights expressly granted in these Terms.
Section 2.11 If you infringe upon the Company’s intellectual property rights, you will immediately inform Company by emailing firstname.lastname@example.org.
III. Grant of License to Licensor
Section 3.1 Any communications or material of any kind that you email, post, or otherwise transmit to Licensor using the Cubigo Assets, including data, questions, comments, or suggestions (your “Communications”) will become the property of the Company.
Section 3.2 You hereby grant a license to Licensor to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information.
Section 3.3 With regard to any non-personally-identifiable content you make available to or through the Cubigo Assets (“User Content”), you give Licensor and its licensors and providers a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, change, modify, and display publicly such User Content as is reasonably required to provide you with the Cubigo Assets, make improvements, and, unless you object, market the Company’s (and its Providers’) products and services; and you warrant and in both cases agree that you have the right to give Licensor, and its licensors and providers, such a license.
IV. The Platform Account
Section 4.1 When you open an account to use or access the Platform, you must provide complete and accurate information as requested on the registration form. You will also be asked to provide a user name and password. If you choose to register, you agree to: (a) supply the information requested in the registration process, (b) ensure that all the information you supply to us is accurate, and (c) update your personal information, as applicable.
Section 4.2 You are entirely responsible for the maintaining the confidentiality of your password. You agree to take all reasonable measures to prevent unauthorized persons from accessing your account information, including account user name and password. You may not use a third party’s account, user name or password at any time. You agree to notify Company immediately of any unauthorized use of your account, user name or password.
Section 4.3 You are responsible for all activity that occurs in association with your account. Company shall not be liable for any losses you incur as a result of someone else’s use of your account or password, either with or without your knowledge. You may be held liable for any losses incurred by Company, our affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account or password.
Section 4.4 We may need to contact you about your use of the Platform. You may not opt-out from receiving communications related to proper use of the Cubigo Assets. However, you can manage and opt-out from receiving other communications from the Company (and keep your email address up-to-date) from your account settings.
V. Electronic Signature
Section 5.1 You agree to be bound by any affirmance, assent, or agreement you transmit to Company using the Platform, including but not limited to, any consent you give to receive communications from Licensor solely through electronic transmission (until such time consent is withdrawn).
Section 5.2 You agree that when, in the future, you click on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Cubigo Assets, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
Section 6.1 You authorize Company to rely on your electronic signature to identify you when you use the Cubigo Assets, and as signature authorization for any payment made. You acknowledge and agree that you are responsible for all payments you make using the Cubigo Assets and for paying any and all late charges or penalties. You also acknowledge and agree that if you permit another person or persons to use the Cubigo Assets or give them your account credentials (which you SHOULD NOT DO), you are responsible for any payment that person makes to your account, even if the person exceeds your authorization. You agree that Company may comply with the payment instructions entered by any person using your account credentials.
VII. Carrier Charges
Section 7.1 Your carrier’s data rates may apply to your use of the Platform, in addition to any licensing fees you may pay.
VIII. Use of Cubigo Assets
Section 8.1 The following requirements apply to your use of the Cubigo Assets:
(a) You will not use any electronic communication feature of the Cubigo Assets for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful.
(b) You will not use the Cubigo Assets to upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights.
(c) You will not use the Cubigo Assets for any external business purpose not expressly approved by Company in writing. You will not use the Cubigo Assets to upload, post, email, or otherwise transmit any advertising or promotional materials, including without limitation, “junk mail,” “surveys,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or unauthorized communication.
(d) You will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
(e) You will not use the Cubigo Assets when you are driving a motor vehicle, even if doing so is legally permitted in your location.
(f) You will not reproduce, copy, display, transmit, publish, sell, or sublicense the Cubigo Assets or the content, products, and services of Providers in any form without prior permission from Company;
(g) If you are a Covered Entity, as that term is defined by the Health Insurance Portability and Accountability Act (HIPAA), you will not use the Cubigo Assets in a way that would violate applicable law, including HIPAA.
Section 8.2 Provider Content. Providers contract with Company to be able to sell their products and/or services on the Platform. Company is NOT responsible for the content or security of the Provider Cubes™. Cubigo Cubes™ will be distinguishable from Provider Cubes™. If you are unclear whether a Cube is owned by Company or a third-party Provider, please contact us at email@example.com.
Section 8.3 Errors. If you identify an error and/or inaccuracy (or suspected error or inaccuracy) in the Cubigo Assets, you can ask questions by (1) accessing the “Questions” Cube™ on the Platform or (2) by emailing firstname.lastname@example.org.
Section 8.4 Web Browser. You may only use the Cubigo Assets with a commercially available SSL web browser.
Section 8.5 Availability. If deemed necessary, Company reserves the right to modify the Cubigo Assets. Company also reserves the right to suspend availability of the Cubigo Assets for maintenance, modifications and/or improvements. In addition, it is possible that the Cubigo Assets may be temporarily unavailable or cease to function.
Section 8.6 You agree to provide to Company access to the Cubigo Assets and your hardware and equipment, and you agree to otherwise cooperate with Company as reasonably necessary for Company to verify compliance with and enforce this Agreement and for Company to perform any warranty obligations it may have.
IX. Data Transmission and Security
Section 9.1 You recognize that the Internet is not a secure medium, which may be interrupted or may be subject to breaches of security and privacy. Electronic communications submitted from you on or through the Platform (“Communications”) may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and Company or between you and other parties.
Section 9.3 We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law.
Section 9.4 We reserve the right (but are not required) to permanently or temporarily remove or disable access to the Platform at any time and without notice, and at our sole discretion, if we determine that User Content or the use of the Platform is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Cubigo Assets.
Section 9.5 Company uses industry best practices for safeguarding personally identifiable information (PII).
X. THIRD PARTY SOFTWARE
Section 10.1 “Third Party Software” means software and related materials that are furnished by a third party and subject to a separate license agreement between the licensor of that software and the Company. Third Party Software may be made available to you as part of the Platform, and is made available solely for the purposes outlined in this Agreement. You may not use the Third Party Software in any manner that could damage, disable, overburden, or impair the services provided by the licensors of that software hereunder ("Third Party Services"). Furthermore, you may not use the Third Party Software in any manner that could interfere with any other party's use and enjoyment of the Third Party Services. Licensor reserves the right, without prior notice, to suspend, limit or cancel access to Third Party Services for any reason.
Section 10.2 For Institutional Users. YOU ACKNOWLEDGE AND UNDERSTAND THAT COMPANY MAY USE THIRD PARTY SOFTWARE, WEBSITES, HELP DESK SYSTEMS AND OTHER THIRD PARTY SERVICES TO PROVIDE CERTAIN COMPONENTS OF THE CUBIGO ASSETS AND THAT SUCH THIRD PARTY SOFTWARE, WEBSITES, HELP DESK SYSTEMS AND OTHER THIRD PARTY SERVICES MAY NOT MEET THE REQUIREMENTS FOR THE PROTECTION OF PROTECTED HEALTH INFORMATION SET FORTH IN APPLICABLE LAWS AND REGULATIONS, INCLUDING, WITHOUT LIMITATION, HIPAA AND THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (HITECH). YOU AGREE THAT YOU SHALL NOT SUBMIT ANY PROTECTED HEALTH INFORMATION (A) TO COMPANY THROUGH THE PLATFORM OR VIA PHONE, EMAIL, OR OTHER MEANS, INCLUDING BUT NOT LIMITED TO SUBMISSIONS TO ANY ONLINE FORUM MADE AVAILABLE BY COMPANY, AND SUBMISSIONS THROUGH ANY SUPPORT WEBSITE, PORTAL, OR ONLINE HELP DESK OR SIMILAR SERVICE MADE AVAILABLE BY COMPANY; OR (B) DIRECTLY TO ANY THIRD PARTY INVOLVED IN THE PROVISION OF AN ONLINE FORUM, EMAIL, SUPPORT WEBSITE, ONLINE HELP DESK OR OTHER SERVICE DESCRIBED IN (A), ABOVE.
Section 11.1 Company shall provide technical or other support for the Platform. Support may be provided by the third-party service providers and licensors of Company, according to the warranty and support conditions of such service providers and licensors. In any event, Individual End User support for the Cubigo Platform shall be provided for free to you. Institutional End Users may be required to pay for support services. Such support will be provided in the form of updates and/or upgrades (at the discretion of Company), technical, billing, and software support. You may access support services by accessing the “Questions” Cube™ on the Platform.
Section 11.2 By accessing the Platform and parts thereof, you hereby agree and consent that service providers and licensors of Company may automatically check the version of Platform you are using on your mobile device or PC and may provide updates (i.e. bug fixes) and/or upgrades (i.e. a new version of the Platform or parts thereof) to the Cubigo Assets that may be automatically downloaded on to your mobile device or PC.
XII. DISCLAIMERS AND LIMITATION OF LIABILITY
Section 12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PROVIDES THE PLATFORM AND CUBIGO CUBES™ “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE CUBIGO ASSETS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, VIRUS-FREE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE CUBIGO ASSETS. YOU ACKNOWLEDGE AND AGREE THAT IF YOU RELY ON THE CUBIGO PLATFORM OR CUBIGO CUBES™, YOU DO SO SOLELY AT YOUR OWN RISK.
Section 12.2 Company does not guarantee and explicitly disclaims liability for ensuring that the information in the Cubigo Assets is up-to-date, accurate, or complete. You are responsible for verifying and validating the accuracy and completeness of all information you view or access as part of the Cubigo Assets before acting upon such information.
Section 12.3 COMPANY DISCLAIMS ANY LIABILITY FOR PROVIDER OR USER CONTENT, AND ANY DEFECTS, FAULTS, OR DAMAGE TO, OR RESULTING FROM, PROVIDER PRODUCTS OR SERVICES. LIABILITY LIES EXCLUSIVELY WITH THE PROVIDER FROM WHOM THE CONTENT, PRODUCTS, OR SERVICES ORIGINATED.
Section 12.4 THIRD PARTY SITES. THE CUBIGO ASSETS MAY CONTAIN HYPERLINKS TO THIRD PARTY CONTENT OR WEB SITES OPERATED BY THIRD PARTIES (“TPS”), AND COMPANY MAY WORK WITH A NUMBER OF PARTNERS AND AFFILIATES WHOSE SITES ARE LINKED WITH THE CUBIGO ASSETS. COMPANY DOES NOT CONTROL INDEPENDENT TPS WITH WHICH IS IT NOT DIRECTLY CONTRACTED (“ITPS”). CUBIGO DOES NOT GUARANTEE AND IS NOT RESPONSIBLE FOR THE AVAILABILITY, QUALITY, USE, SECURITY, PRIVACY, OR ACCURACY OF ITPS (AND WEB SITES ACCESSED VIA THE ITPS) OR THEIR CONTENT, PRODUCTS OR SERVICES. COMPANY IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY ITPS. COMPANY IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION WITH RESPECT TO ITPS, THEIR OWNERS OR PROVIDERS. YOU ACKNOWLEDGE THAT YOU BEAR ALL RISKS ASSOCIATED WITH ACCESS TO AND USE OF CONTENT PROVIDED ON AN ITPS AND AGREE THAT NEITHER COMPANY NOR ITS AFFILIATES, PARTNERS, AGENTS, SUBCONTRACTS, OFFICER, DIRECTORS, OR EMPLOYEES ARE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH A THIRD PARTY. You should contact the site administrator for the applicable ITPS if you have any concerns regarding such links or the content located on any such ITPS.
Section 12.5 COMPANY CAUTIONS YOU TO MAKE SURE YOU UNDERSTAND THESE RISKS BEFORE RETRIEVING, USING, RELYING UPON, OR PURCHASING ANYTHING VIA THE INTERNET. YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL YOU HOLD COMPANY OR ITS AFFILIATES OR AGENTS LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY USE OF OR RELIANCE ON ANY CONTENT, GOODS, OR SERVICES AVAILABLE ON OTHER SITES. THIS PROVISION SHALL ALSO APPLY IN FULL TO THE CONTENT AND ANY HYPERLINKS IN THE CUBES™, WHICH ARE THE EXCLUSIVE RESPONSIBILITY OF THE PROVIDER.
Section 12.6 LICENSOR EXPRESSLY DISCLAIMS, AND YOU AGREE, THAT LICENSOR SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY INDEPENDENT THIRD PARTY PRODUCT OR SERVICE OR PROVIDER CONTENT.
Section 12.7 COMPANY AND ITS LICENSORS HAVE NO LIABILITY WITH RESPECT TO YOU OR ANY OTHER PERSON, FOR ANY LOSS OR DAMAGE SUFFERED AS A RESULT OF A FAILURE OR REFUSAL BY COMPANY TO RESPOND TO A MESSAGE MEANT FOR COMPANY BY LETTER, FAX, OR E-MAIL, NOR FOR DELAYED DELIVERY, RECEIPT, CONSIDERATION OR ACCEPTANCE OF SUCH MESSAGES BY COMPANY.
Section 12.8 THE CUBIGO ASSETS ARE NOT DESIGNED FOR NOR ARE THEY INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. IT IS ALSO NOT INTENDED TO REPLACE THE CARE OF, ADVICE FROM, OR MONITORING BY A HEALTHCARE PROFESSIONAL OR GUARDIAN. YOU RELY ON THE FUNCTIONALITY OF THE PLATFORM AND CUBES™ AT YOUR OWN RISK.
Section 12.9 YOU ARE RESPONSIBLE FOR YOUR CONNECTION TO THE INTERNET AND THE NECESSARY HARDWARE AND SOFTWARE TO RUN THE APPLICATION(S). COMPANY IS IN NO WAY RESPONSIBLE FOR HARDWARE OR SOFTWARE FAILURE AND/OR INTERRUPTION OF YOUR INTERNET CONNECTION.
Section 12.10 NEITHER COMPANY NOR ITS RESPECTIVE LICENSORS OR SERVICE PROVIDERS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CUBIGO ASSETS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, UNFORESEEABLE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, LOSS OF BUSINESS OR REVENUE, LOSS OF OPERATIONAL SAVINGS OR COSTS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION OR GOODWILL, LOSS OF PRIVACY, SERVICE OR BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, WORK STOPPAGE, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, PERSONAL INJURY, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE CUBIGO ASSETS, OR THE PROVISION OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION IN THIS AGREEMENT, WHETHER OR NOT DUE TO ANY DEFECTS THEREIN, AND WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 12.11 LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CUBIGO ASSETS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LIMITS OF COMPANY’S AVAILABLE INSURANCE COVERAGE.
Section 12.12 SOLE AND EXCLUSIVE REMEDY.
(a) For Institutional End Users. Parties agree that, in the event of a breach by Company of this Agreement and any relevant warranties, the Institutional End User shall be entitled to a refund in an amount equal to six (6) months of fees paid to Company.
(b) For Individual End Users. Parties agree that, in the event of a breach by Company of this Agreement and any relevant warranties, the Individual End User shall be entitled to liquidated damages in the amount of one hundred ($100) dollars.
(c) The Parties agree that, regardless of the failure of the sole and exclusive remedy, the Company will not be liable for any consequential damages of whatsoever kind or nature, as stated in Section 12.10, above.
(d) The limitation of remedies available to Users as described in this Section 12 shall not apply to a breach of PHI by Company.
THE PROVISIONS OF THIS SECTION 12 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU, AND COMPANY'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY CLAIM REGARDING THE PERFORMANCE OR NONPERFORMANCE OF THE COMPANY OR CUBIGO ASSETS.
Section 12.13 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS BETWEEN YOU AND COMPANY AND CONSTITUTES THE BASIS OF THE PARTIES' BARGAIN, WITHOUT WHICH YOU AND LICENSOR WOULD NOT HAVE AGREED TO THE TERMS OF THIS AGREEMENT.
Section 13.1 You will indemnify and hold harmless Company and its officers, directors, employees, agents, franchisees, affiliates, service providers and suppliers, subcontractors, licensees, and all other involved or associate persons (“Indemnified Parties”) from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, settlement costs and reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Platform or Cubes™ in a manner not permitted by this Agreement, not permitted by the Company, or not in conformance with the Company’s written requirements, (ii) your access to or use of the Licensed Content, (iii) your breach of any warranties or representations made by you hereunder, (iv) the acts or omissions of you, your employees, and agents, and all persons or entities who have access through you to the Cubigo Assets, or (v) relating to an infringement of any right resulting in any way from the use of the Cubigo Assets with other software or materials not licensed to you by or not approved by the Company. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Section 13.2 Indemnity of Right of Use. The Company shall defend or settle, at its own expense, any claim made against you that the Cubigo Assets, in whole or in part, infringes any United States patent, published patent application, copyright, trade secret, or other proprietary right, and the Company shall indemnify and hold you harmless against any final judgment, including an award of attorneys' fees, that may be awarded by a court against you as a result of the foregoing; provided, however, you shall (a) give the Company written notice of such claim within thirty (30) days of the date you first know or should know of the claim and (b) provide the Company with reasonable cooperation and all information in your possession related to said claim. The Company shall have sole control of the defense of such claims and all related settlement negotiations. Reasonable out of pocket expenses incurred by you in providing assistance to the Company in defense of such a claim shall be reimbursed by the Company.
Section 13.3 Remedy for Claimed Infringement. If a claim is made that the Cubigo Assets, or any portion thereof, infringes any United States patent, copyright, trade secret, or other proprietary right, Company, at its sole expense and option, shall either: (i) procure for you the right to exercise the rights and licenses granted hereunder with respect to the Cubigo Assets; (ii) modify the Cubigo Assets to make it non infringing; (iii) replace the Cubigo Assets with equivalent but non infringing software of like functionality; or (iv) terminate this Agreement and refund any fees paid, subject to the limitations of liability in Section 12.
Section 13.4 Limitation of Indemnity. The Company shall have no liability to you or your assignees, transferees, or sublicensees for any claim of infringement that is based upon (i) any modification (by you) of the Cubigo Assets, (ii) combination of the Cubigo Assets with software not supplied by or authorized by the Company if such claim would have been avoided but for such combination, or (iii) your use of the Cubigo Assets after the Company notifies you to cease use due to an infringement claim.
Section 14.1 Any notices or other communications provided by Company under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Platform or Cubes™. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted. Notices provided by you to the Company should be sent via email to email@example.com or by certified mail at the address listed at the bottom of this Agreement.
XV. DISPUTE RESOLUTION
Section 15.1 You agree that any dispute between you and Licensor arising out of or relating to these Terms and/or the Cubigo Assets (collectively, “Disputes”) will be governed by the dispute resolution procedure outlined below. We want to address your concerns without needing a formal legal case. Before filing a claim against Licensor, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. All claims should be addressed to Cubigo NV in Belgium. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 30 days after submission, you or Licensor may bring a formal proceeding. All claims are subject to Belgian law and Belgian courts are exclusively competent.
Section 15.2 In the event of any controversy or claim arising out of or relating to this agreement, or a breach thereof, you and Company shall first attempt to settle the dispute by mediation, administered by the American Arbitration Association under its Mediation Rules. If settlement is not reached within sixty days after service of a written demand for mediation, any unresolved controversy or claim shall be settled by arbitration administered by the Belgian courts of law and its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Belgium. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Section 15.3 NOTWITHSTANDING THE ABOVE, YOU CAN DECLINE OR “OPT OUT” OF THE AGREEMENT TO ARBITRATE BY CONTACTING CONTACT INFORMATION WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS AND STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS ARBITRATION AGREEMENT.
Section 15.4 Each party shall pay its own attorneys’ fees and costs related to arbitration, unless the arbitrator determines that the claim is frivolous, in which case the party that initiates the dispute shall pay the other party’s reasonable attorneys’ fees and costs. The AAA rules will govern payment of all arbitration fees.
Section 15.5 Exceptions to Agreement to Arbitrate: Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Cubigo Assets, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
Section 15.6 YOU AGREE THAT YOU MAY ONLY RESOLVE DISPUTES WITH LICENSOR ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER OUR AGREEMENT.
Section 15.7 Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Cubigo Assets must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
XVI. NO ASSIGNMENT; NO TRANSFER.
Section 16.1 Except as permitted elsewhere in this Agreement, you agree not to transfer or assign the Cubigo Assets and/or this Agreement to another party without the prior written consent of Licensor.
Section 17.1 You agree that Company owns and holds title to the Cubigo Assets and all subsequent copies thereof regardless of the form or media. Furthermore, title, ownership rights, and intellectual property rights in the Cubigo Assets shall remain with Company. The Cubigo Assets are protected by copyright and other intellectual property laws and by international treaties.
XVIII. TERM AND TERMINATION
Section 18.1 Institutional End Users. This license will expire according to the terms of the Master Service Agreement or if you fail to comply with any term or condition of this Agreement, file for bankruptcy, or are placed in receivership.
Section 18.3 Upon any termination, discontinuation or cancellation of this Agreement or your account, the following provisions of these Terms will survive: VIII, XII, XIII, XVII, and all other provisions that require action or omission following termination.
Section 18.4 Upon termination, you must immediately (1) cease all use of the Cubigo Assets; (2) destroy or return to Licensor the original and all copies of the Cubigo Assets; (3) delete all Cubigo Assets from all mobile devices and PCs on which they were stored or installed; and (4) destroy any Cubigo Assets, together with all copies thereof. You agree that you will not be entitled to a refund of any applicable license fee upon early termination of this Agreement.
Section 18.5 All disclaimers of warranties and limitation of liability set forth in this Agreement shall survive the termination of this Agreement.
XIX. IMPORT/EXPORT RESTRICTIONS.
Section 19.1 You agree not to import or export the Cubigo Assets (or any copies thereof), or any products utilizing the Cubigo Assets in violation of any applicable laws or regulations of the United States or the country to which you have imported or exported. You agree to indemnify Licensor from liability if you violate any such laws or regulations.
XX. GOVERNING LAW AND VENUE
Section 20.1 If you are located in the United States of America, your contracting counterpart is Cubigo, Inc., and the laws of the State of California, and where applicable the United States, shall govern this Agreement. You agree to be subject to personal jurisdiction in the State of California for the purposes of enforcing the provisions of this Agreement, without regard to its conflict of laws principles. Any judicial action arising out of this Agreement must be filed in the federal or state courts located in San Francisco County, California, and both you and Company consent to the personal jurisdiction and venue of these courts. You and Company hereby irrevocably waive any and all claims and defenses either of us might otherwise have in any action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. Notwithstanding the foregoing, Company may bring an action in any court of competent jurisdiction to enforce and/or to enjoin the infringement of its Intellectual Property Rights.
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Licensor agree that any judicial proceeding will be brought in California. Both you and Licensor consent to venue and personal jurisdiction there. YOU AND COMPANY BOTH AGREE TO WAIVE THE RIGHT TO A JURY TRIAL.
Section 21.1 In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
XXII. ENTIRE AGREEMENT
Section 22.1 You further agree that this Agreement is the complete and exclusive statement of the agreement between you and Licensor, which supersedes all proposals or prior agreements, oral or written, and all other communications between you and Licensor relating to the subject matter of this Agreement. This Agreement may only be modified by a written agreement signed by both you and an authorized representative of Licensor.
Section 23.1 By downloading, installing or using any part of this Application(s), you indicate that you have read this Agreement, understand it, and agree to be bound by its Terms.
XXIV. FORCE MAJEURE
Section 24.1 Licensor shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event Licensor shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.
PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
Corda Campus (Gebouw 1)
Kempische Steenweg 311/1.02
3500 Hasselt, Belgium