Terms of Service: Box.com

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CLICK-THROUGH AGREEMENT
THIS CLICK-THROUGH AGREEMENT (THIS “AGREEMENT”) IS BETWEEN BOX (“BOX”) AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY). BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, BOX IS UNWILLING TO LICENSE THE SOFTWARE (AS DEFINED BELOW) TO YOU, AND YOU MUST CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “ACCEPT” BUTTON BELOW. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “CUSTOMER”.
1.    Background; Terms of Service.  Box develops, maintains and provides access to a certain software solution (the “Software”) that allows Customer to access, use and synchronize the services available at Box’s site identified by the URL http://www.box.com (“Website”) on such Customer’s desktop.  Customer wishes to use the Software.  In addition to this Agreement, all use of the Software is governed by the Website’s terms of service located at http://www.box.com/static/html/terms.html (“Terms of Service”), which Terms of Service are hereby incorporated into this Agreement by this reference.
2.    Licenses.
(a)    License to Customer.  Box grants to Customer a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to access and use the Software solely for Customer’s internal purposes. The Software may be downloaded from the Website.
(b)    License to Box.  Customer grants to Box and its contractors an irrevocable, royalty-free, worldwide license to access, use, modify, and delete any information, materials, data, files, programs, ideas and opinions provided or made available by Customer (“Customer Content”) through the use of Software for the sole purpose of synchronizing the services made available through the Software with the services made available through the Website.
3.    License Restrictions.  Unless expressly otherwise set forth in this Agreement, Customer will not: (a) modify, translate or create derivative works of the Software; (b) decompile, reverse engineer or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (c) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Software; (d) make, have made, reproduce or copy the Software; (e) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Software; and (f) cause or permit any other party to do any of the foregoing.
4.    Ownership.  As between the parties, Box owns all right, title and interest in and to the Software and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively, “Intellectual Property Rights”) embodied therein. As between the parties and subject to the terms and conditions of this Agreement, Customer owns all right, title and interest in and to the Customer Content generated by the use of the Software by Customer. There are no implied licenses in this Agreement, and Box reserves all rights not expressly granted under this Agreement.
5.    Nondisclosure.  “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Box to Customer concerning or related to this Agreement or Box (whether before, on or after the Effective Date) which Customer knows or should know, given the facts and circumstances surrounding the disclosure of the information by Customer, is confidential information of Box.  Confidential Information includes, but is not limited to, the components of the business plans, the Software, inventions, design plans, financial plans, computer programs, know-how, customer information, strategies and other similar information. Customer will, during the term of this Agreement, and thereafter maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. Customer will use the same degree of care in protecting the Confidential Information as Customer uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by Customer solely for the purpose of carrying out Customer’s obligations under this Agreement. In addition, Customer: (a) will not reproduce Confidential Information, in any form, except as required to accomplish Customer’s obligations under this Agreement; and (b) will only disclose Confidential Information to its employees and consultants who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such employees and consultants have executed a non-disclosure agreement with Customer with terms no less restrictive than the non-disclosure obligations contained in this Section 5. Confidential Information will not include information that:  (i) is in or enters the public domain without breach of this Agreement through no fault of Customer; (ii) Customer can reasonably demonstrate was in its possession prior to first receiving it from Box; (iii) Customer can demonstrate was developed by Customer independently and without use of or reference to the Confidential Information; or (iv) Customer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Customer to Box with respect to the Software (collectively, “Feedback”) will constitute Confidential Information of Box. Further, Box will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
6.    Warranty; Disclaimer.  Customer represents warrants and covenants that:  (a) all of its employees and consultants will abide by the terms of this Agreement; and (b) it will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of this Agreement. Notwithstanding any terms to the contrary in this Agreement, Customer will remain responsible for acts or omissions of all employees or consultants of Customer to the same extent as if such acts or omissions were undertaken by Customer. THE SOFTWARE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND.  BOX AND ITS SUPPLIERS DO NOT WARRANT THAT ANY OF THE SOFTWARE WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS.  BOX AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT BOX KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS RELIED ON NO WARRANTIES.
7.    Indemnification.  Customer will indemnify, defend and hold Box and its directors, officers, employees, suppliers, consultants, contractors, and agents (“Box Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action, or proceeding against any Box Indemnitees, whether successful or not, resulting from or arising in connection with: (a) any breach of this Agreement (including, but not limited to, any breach of any of Customer’s representations, warranties or covenants); (b) the negligence or willful misconduct of Customer; or (c)  the Customer Content.
8.    Limitation of Liability.  EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL BOX BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF BOX HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION TO THE FOREGOING, IN NO EVENT WILL BOX BE LIABLE FOR ANY FAILURE OF THE SYNCHRONIZATION FUNCTIONALITY OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO ANY CUSTOMER FILES AND OTHER CUSTOMER CONTENT, AND CUSTOMER WILL NOT RELY ON THE SOFTWARE OR ITS SYNCHRONIZATION FUNCTIONALITY.  EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT will BOX’s TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE aggregate of the amounts paid or payable by customer to BOX, if any, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
9.    Third Party Suppliers.  The Software may include software or other code distributed under license from third party suppliers. Customer acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to the Software or any portion thereof and assume no liability for any claim that may arise with respect to the Software or Customer’s use or inability to use the same.
10.    Termination.  Unless terminated as set forth herein, the term of this Agreement will commence on the Effective Date and will remain in effect for the duration of Customer’s subscription period to an account with Box.net, as such subscription period may be renewed by any subsequent renewal period, unless otherwise terminated in accordance with this Section 10.  Customer may voluntarily terminate this Agreement at any time upon written notice to Box.  Without prejudice to any other rights, in the event of a breach of Sections 2(a), 3 or 5, Box may immediately terminate this Agreement. Upon expiration or termination of this Agreement: (a) all rights granted to Customer under this Agreement will immediately cease; and (b) Customer will promptly provide Box with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at Box’s sole discretion and direction. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 5, 6, 7, 8, 9, 10 and 12.
11.    Software Updates. Box reserves the right, in its sole discretion, to make unscheduled deployments of updates or enhancements to the Software.  Customer acknowledges and understands that during such deployments, certain functionality of the Software may be unavailable and outages may occur.
12.    Miscellaneous.  This Agreement together with any exhibits attached hereto, are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. In the event of a conflict between this Agreement and the Terms of Service, this Agreement will prevail.  Further, this Agreement incorporates, by reference, Box’s privacy policy (http://www.box.com/static/html/privacy.html). This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions.  The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in Santa Clara County, California. The parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Box, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Box may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; (b) deposited with a pre-paid messenger, express or air courier or similar courier; or (c) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a party at the party’s address, facsimile number or email address as set forth below. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (iii) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement.  Further, either party may change the individual designated below or its contact information or both by notice in accordance with this Section 12.

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