Web Cube Cloud Service Terms
PLEASE READ THE FOLLOWING CAREFULLY BEFORE USING WEB CUBE CLOUD (THE “SERVICE”)
By checking the box “I agree to the Web Cube terms and conditions," you expressly acknowledge and agree, on your behalf as an individual, and on behalf of your employer or another entity which has not yet done so (collectively "You" or "Your"), that You are entering into a binding legal agreement with Web Cube, LLC ("Web Cube,"), are over 18 years of age, have full authority to bind such employer or other entity and have understood and agree to comply with the terms below ("Terms"). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“AUP” means the Acceptable Usage Policy that governs the use of the Web Cube Cloud Services provided by Web Cube. “Affiliate” means any entity or person that directly or indirectly controls, is controlled by, or is under common control with the subject entity or person. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Content” means any information that You may generate, provide, store, post, transmit, or upload in connection with the Service, such as data files, written text, software, music, graphics, stylized logos, photographs, images, sounds, videos, messages, and similar materials. As between Web Cube and You, You retain the title to Content.
“Non-Web Cube Application” means a web-based or offline software application that is provided by You or a third party and interoperates with the Service.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by Web Cube, including associated offline components, as described in the Documentation. Non-Web Cube Applications and Content are excluded from “Services.”
“Site” means the website created through the integration of Your Content and the proprietary Web Cube Cloud software.
“Third-Party Vendor” means an entity that provides products, services, and/or other resources to enhance the Service.
“We,”“Us,” or “Our” means Web Cube, LLC, with which you are contracting.
“Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services, excluding Content and Non-Web Cube Applications.
2. CONTENT ENTRY
The Service includes a Content Management System. You agree that You will not include Content that is or gives rise to, and Web Cube may (but is not required to) refuse to remove Content that it determines in its sole discretion to be, (a) unlawful, offensive, threatening, harmful, libelous, defamatory, pornographic, gambling-related, obscene, racist, infringing, or otherwise objectionable; (b) not wholly-owned by or validly licensed to You; (c) a violation of a third party’s intellectual property rights; (d) a break of these Terms; and/or (e) a violation of the terms and conditions as modified from time to time, of Web Cube’s Third-Party Vendors. Content must include Your name and address, and Your contact information (telephone number, email address) to which user questions, complaints or claims should be directed.
Once You submit required Content to Web Cube, You (a) authorize and appoint Web Cube to integrate the Content with its proprietary solution to create an ecommerce website; (b) will provide Web Cube with all information including modified Content that it requests in connection with such integration; (c) grant Web Cube the right to distribute or otherwise make the Site available in its sole discretion and acknowledge that Web Cube may at any time cease to offer, or change or enforce terms that govern, and could require modification or affect the continued availability of, the Site. You hereby grant Web Cube a worldwide, unlimited, royalty-free license to use, publish, reproduce, display, and distribute copies of, and prepare derivative works based upon, the Content, in connection with the Services.
You acknowledge that You are familiar, and will at all times comply and cause users to comply, with any applicable Web Cube AUP and any terms and conditions of Third-Party Vendors as may be applicable to the Site, which Web Cube will make available to You upon request.
5. SITE AND CONTENT
You (and not Web Cube or a Third-Party Vendor) are solely responsible for the Site and Content, including but not limited to product warranties, product claims, maintenance, and support services, other third-party claims including but not limited to those related to infringement of a party’s intellectual property rights, compliance with any applicable law or regulation including but not limited to those relating to privacy and data collection. You are also solely responsible for ensuring that users of the Site and those who engage in commercial activities on the Site, are not subject to U.S. export controls and that no materials, information or content is downloaded or otherwise exported or reexported into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nations or the U.S. Commerce Departments Table of Deny Orders. For a claim related to any of the aforementioned, You (and not Web Cube or a Third-Party Vendor) will be solely responsible for its investigation, defense, settlement, and discharge.
6. OTHER REQUIREMENTS
You acknowledge and agree that (a) information transmitted or gathered in connection with the Service or the Site may be used in an aggregated and anonymized manner; (b) Third-Party Vendors and their affiliates are third party beneficiaries of these Terms, and that such entities will have (and have deemed to have accepted) the right to enforce them against You; (c) as between You and Web Cube, You are solely responsible for any errors, issues, or downtime caused by or attributable to Your (or Your agents’) customization of the Site; (d) by virtue of their ability to access the Site, users may be subject to terms and conditions similar to these Terms; (e) Your Site or other terms, if any generally binding users, shall incorporate and adapt (to as great an extent as possible), and be at least as restrictive and protective of Web Cube and Third-Party Vendors, as each of the provisions identified in this Section 7, and each of Web Cube and Third-Party Vendors and their affiliates shall be third-party beneficiaries to such terms, which shall indicate that such entities will have (and be deemed to have accepted) the right to enforce them against users; and (f) You should not include, modify, or apply any terms, limitations, or disclaimers in any agreements with users that contradict or supersede either these Terms or any minimum user terms that Web Cube incorporates as part of the Site.
7. ECOMMERCE SITE USAGE
You acknowledge and agree to use the Service solely for the purpose of running an ecommerce website and/or mobile ecommerce website and hosting and serving web pages as viewed through a web browser and the Hypertext Markup Language (HTML) protocol or other equivalent technology, and not to use the Service as an online storage space or inconsistent with Your data plan. You are solely responsible for backing-up and archiving any of Your Content or other data that may be stored on Web Cube’s (or its third party service provider’s) servers. Under no circumstances will Web Cube be liable for damages of any kind for any loss of Your Content or Data.
You are solely responsible for maintaining the confidentiality of Your password and account information and ensuring the security, confidentiality and integrity of Content that is transmitted through or stored on Web Cube (or its third party service provider’s) servers.
For such time as You are current in your payment of any fees hereunder, Web Cube or its authorized representative will use commercially reasonable efforts to provide the support services as described in the Service Support Services Terms and Conditions
10. TITLE AND PROTECTION
Except for the actual Content, Web Cube (or its Third-Party Providers) retain all rights, titles, and interests to all portions of the Service, associated software, Site, and any modifications, enhancements, or derivative works thereof. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together will all the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to You or prepared by or on behalf of Web Cube in the course of performing the Services (collectively, the “Deliverables”) except for any Content, shall be owned by Web Cube. Web Cube hereby grants to you, subject to all payments being timely made, a license to use all Intellectual Property Rights on a non-exclusive, worldwide, non-transferable, non-sublicensable basis to the extent necessary to enable You to make reasonable use of the Deliverables and the Services, subject to these Terms. Any software made available to You is deemed to be licensed to You by Web Cube for Your used only in connection with the Services and Web Cube does not transfer either the title or the intellectual property rights to any such software, and Web Cube retains full and complete title to all such software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce any of such software, nor may You decompile, reverse-engineer, disassemble, or otherwise convert any of such software to a human-perceivable form.
11. FEES AND PAYMENTS
11.1. The provision of the Service and availability of the Site, and Your use thereof, is subject to Your timely payment of applicable set-up fees, monthly or annual subscription fees (beginning once the Service password is provided).
11.2. Upon Payment of applicable fees, you will receive an activation password which will remain valid subject to Your payment when due of the applicable subscription fee. You agree to keep the activation password secure and will not disclose it to any third party.
12.1. This agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. The term of each subscription shall be as specified in the applicable order form. Except as otherwise specified in an order form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given you written notice of a pricing increase at least sixty days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed ten percent of the pricing for the applicable Services in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant order form as promotional or one-time.
12.3. A party may terminate this agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or anything other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
You agree to defend, indemnify, and hold harmless Web Cube and its affiliates and Our respective officers, directors, agents, consultants, and employees from any claims, damages, liabilities, costs, and expenses (as incurred, including attorney’s fees) arising from or existing because of (a) Your use of the Service or the Site; (b) the use by any third party of the Site; and (c) Your failure to comply with these Terms. This indemnification liability will survive the expiration or termination of these Terms.
14. LIMITATION OF LIABILITY
YOU USE THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT.
WEB CUBE DOES NOT GUARANTEE THAT THE SERVICES OR THE SITE WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE SITE MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. WEB CUBE DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, WEB CUBE DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SITE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
EXCEPT TO THE EXTENT PROHIBITED APPLICABLE LAW, IN NO EVENT SHALL WEB CUBE OR THIRD-PARTY VENDOR, OR THEIR AFFILIATES, SUBSIDIARIES OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF WEB CUBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF WEB CUBE, ITS AFFILIATES, SUBSIDIARIES, AND ITS THIRD PARTY LICENSORS, IF ANY, FOR DAMAGES UNDER THESE TERMS OR ARISING FROM USE OF THE SERVICES EXCEED THE AMOUNT PAID BY YOU TO WEB CUBE FOR THE SERVICES IN THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM. THESE LIMITATIONS WILL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF A BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
15. PUBLICITY AND BRANDING
You agree that Web Cube may, and hereby grant to Web Cube a worldwide, unlimited, royalty-free license to, (a) publicize Your name, the fact of the Site and Your use of the Services; and (b) brand the Site with a “powered by Web Cube” or similar legend and/or copyright notice.
16. FORCE MAJEURE
Web Cube shall not be responsible for failures of its obligations under this Agreement to the extent that such failure is due to causes beyond it’s control including, but not limited to, acts of God, acts of war, governmental acts, fire, sabotage, strikes, failure of the Internet (not resulting from the actions or inactions of Web Cube), strikes or labor difficulties, severe weather conditions, and/or delay in, or of, transportation, suppliers or subcontractors. If the Service is unavailable for a period of thirty consecutive days as a result of a continuing force majeure event, You may cancel your subscription to the Service, but there shall be no liability on the part of Web Cube.
These Terms represent the complete agreement concerning the Services between You and Web Cube and supersede all prior agreements and representations related to the subject matter hereof. These Terms shall be deemed agreed in and governed by the laws of the State of California, excluding choice of law principles. All proceedings shall be conducted in English. You agree that venue for all proceedings shall be Los Angeles County, California, provided that venue shall also be proper in any court of competent jurisdiction where Web Cube seeks (a) injunctive relief against You to enforce the Terms; and/or (b) to join You in a suit brought by a third party related to the Service or the Site. The United Nations Convention for the International Sale of Goods shall not apply. Section headings are provided for convenience only and have no substantive effect on construction. Except for Your obligation to pay Web Cube, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Notice shall be deemed effective when received by the designated fax, email, or postal address. If any provision is held to be unenforceable, the Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. All of Web Cubes rights and obligations herein are freely assignable by Web Cube
Web Cube Reserves the right to modify these Terms at any time by publishing the revised terms on the Web Cube website www.getwebcube.com The revised Terms shall become effective and binding on, and enforceable against, You one week after the date of publication.
20. CONFIDENTIAL INFORMATION
(a) All non-public, confidential or proprietary information of Web Cube, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Web Cube to You, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and these Terms is confidential, and shall not be disclosed or copied by You without prior written consent of Web Cube. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to You at the time of disclosure; or
(iii) rightfully obtained by You on a non-confidential basis from a third party.
(b) You agree to use the Confidential Information only to make use of the Services and Deliverables.
(c) Web Cube shall be entitled to injunctive relief for any violation of this Section.