These Terms of Service ("Terms", "Agreement") govern your ("Customer", "you", or "your") use of the Service and by clicking on the "I Agree", "Accept Terms", "Get Started" or similar button on the Service registration page and executing an Order as further described, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with CubeAPM, Inc. ("CubeAPM", "Cube APM", "Cube", "we", "our", or "us", and collectively with Customer, "Parties"), and (3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you have named as the user, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, "Customer", "you", and "your" will refer to the entity you are representing.
We may update this Agreement from time to time. The most current version of this Agreement will be posted on cubeapm.com (the "Site").
Cube grants to Customer during the Subscription Term the right to use and access the Service for its internal business purposes only in accordance with the Documentation, Order, and this Agreement.
Cube will provide support to Customer in accordance with the Support Plan commitment set out in the Documentation.
Customer will not (and will not permit anyone else to) do any of the following: (a) use the Service to develop a similar or competing product or service; (b) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be payable for such access or use; (c) reverse engineer, decompile, disassemble, or seek to access the source code, algorithms, or non-public APIs to the Service or any related features, except to the extent expressly permitted by law (and then only with prior notice to Cube); (d) modify or create derivative works of the Service or copy any element of or related features with the Service (other than authorized copies of the Software); (e) publish benchmarks or performance information about the Service; (f) provide access to or sublicense the Service to a third party other than a Third-Party Service; or (g) use the Service on behalf of, or to provide any product or service to, third parties. To ensure compliance with this Section, Cube may monitor or review use of the Service and investigate suspected violations of this Agreement.
Customer shall implement any Software updates immediately after Cube makes such available for general release.
Cube needs a limited license to Customer Data in order to provide the Service. For example, depending on the Service subscribed to, the Service and related features may create visualization aides, such as dashboards, charts, and graphs, which requires, among other rights, a right to create derivative works. Customer grants Cube a non-exclusive, worldwide right to use, copy, store, transmit, display, modify, and create derivative works of the Customer Data, to the extent necessary to manage, improve, and provide the Service and related services, as well as to provide support to Customer.
Cube may suspend access to, or limit, the Service and related services (and the relevant fees for the Service will continue to apply during such period) if: (a) you breach this Agreement or an Order, including non-payment of any fees when due; or (b) there is a risk of harm to other Cube customers or the security, availability, or integrity of the Service due to actions taken within an Account or resulting from a Third-Party Service. Where practicable, Cube will use reasonable efforts to provide prior notice of any suspension. Once the issue requiring suspension is resolved, without limiting any Cube remedies, Cube will restore access to the Service in accordance with this Agreement.
In order to provide its customers with the benefits of the Service, Cube may collect and process utilization statistics and other technical data (e.g. page load data) regarding use, configuration, and deployment of the Service to operate, manage, improve, instrument, benchmark, and support the Service; provided, Cube will not disclose any information derived from such data if doing so would make it possible for a third party to identify Customer or any individual natural person.
Customer may choose to use the Service together with Third Party Services. Customer acknowledges that Third-Party Services do not form part of the Service and that Customer's use of Third-Party Services is subject to Customer's agreement with the relevant provider and not this Agreement. For clarity, because Third-Party Services are not controlled by Cube and do not form part of the Service, Cube bears no responsibility or liability for Third-Party Services, including their security, availability, functionality, or inoperability, or any effect they may have on your Customer Properties or how the Third-Party Services or their providers use Customer Data. If Customer enables a Third-Party Service with the Service, Cube may access and exchange Customer Data with the Third-Party Service on Customer's behalf and instruction. Use of the Service with a Third-Party Service does not expand Customer rights or our obligations under this Agreement.
Fees and invoicing may be described in each Order and/or the Usage Plan. Unless the Order or Usage Plan provides otherwise, all fees are payable in U.S. dollars and are due upon invoice issuance. Late payments are subject to a service charge of 1% per month or the maximum amount allowed by law, whichever is less. All fees and expenses are non-cancellable and non-refundable except as set out in this Agreement.
The fees do not include any sales or other applicable taxes, levies, duties, or similar assessments assessable by any jurisdiction. Each party is responsible for their own tax obligations. If Cube has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Cube is provided with a valid tax exemption certificate authorized by the appropriate taxing authority.
Each Subscription Term will automatically renew for successive periods equal in duration to the previous Subscription Term, unless either party gives the other party notice of non-renewal at least 30 days before the then current Subscription Term ends. Per-unit rates for renewals will be the same as in the prior Subscription Term for the same Service, unless Cube notifies you in advance of an increase.
An Affiliate may enter into their own Order(s) with Cube. This creates a separate agreement between the Affiliate and Cube incorporating this Agreement with the Affiliate treated as "Customer". Neither Customer nor any Affiliate has any rights under each other's agreement with Cube, and breach or termination of any such agreement is not breach or termination under any other.
By using our Service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or by emailing at unsubscribe@cubeapm.com.
For the purposes of this Agreement, the Parties define "Confidential Information" to mean any of the information disclosed under this Agreement that is designated by the disclosing party as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Cube's Confidential Information includes any technical, pricing, or performance information about the Service or related services. Customer's Confidential Information includes your Customer Data.
As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided the receiving party remains responsible for their compliance with this Section and such parties are bound to confidentiality obligations no less protective than this Section.
These confidentiality obligations do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party's Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section.
Neither Party grants the other any rights or licenses not expressly set out in this Agreement. Except for Cube's use rights in this Agreement, as between the Parties, Customer retains all intellectual property and other rights in Customer Data. Except for Customer's use rights in this Agreement, Cube and its licensors retain all intellectual property and other rights in the Service, the Documentation, and related Cube technology, services, templates, formats, and dashboards, including any modifications or improvements to these items made by Cube. If you provide Cube with feedback or suggestions regarding the Service or other Cube offerings, we may use the feedback or suggestions without restriction.
You may use Service only for lawful purposes and in accordance with Terms. You agree not to use Service:
Additionally, you agree not to:
THESE SERVICES ARE PROVIDED BY COMPANY ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THEIR SERVICES, OR THE INFORMATION, CONTENT OR MATERIALS INCLUDED THEREIN. YOU EXPRESSLY AGREE THAT YOUR USE OF THESE SERVICES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED FROM US IS AT YOUR SOLE RISK.
NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
EXCEPT AS PROHIBITED BY LAW, YOU WILL HOLD US AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, HOWEVER IT ARISES (INCLUDING ATTORNEYS' FEES AND ALL RELATED COSTS AND EXPENSES OF LITIGATION AND ARBITRATION, OR AT TRIAL OR ON APPEAL, IF ANY, WHETHER OR NOT LITIGATION OR ARBITRATION IS INSTITUTED), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE, ARISING FROM THIS AGREEMENT AND ANY VIOLATION BY YOU OF ANY FEDERAL, STATE, OR LOCAL LAWS, STATUTES, RULES, OR REGULATIONS, EVEN IF COMPANY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS PROHIBITED BY LAW, IF THERE IS LIABILITY FOUND ON THE PART OF COMPANY, IT WILL BE LIMITED TO THE AMOUNT PAID FOR THE PRODUCTS AND/OR SERVICES, AND UNDER NO CIRCUMSTANCES WILL THERE BE CONSEQUENTIAL OR PUNITIVE DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE PRIOR LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Cube will defend Customer from and against any valid third-party claim to the extent alleging that the Service, when used by Customer as authorized, infringes a valid third-party's patent, copyright, or trademark, and will hold harmless and indemnify Customer against any damages or costs finally-awarded against Customer (including reasonable attorneys' fees) or agreed in settlement by Cube resulting from the claim.
Customer will defend Cube from and against any third-party claim to the extent related to or arising from Customer Materials, Customer Data or Customer's breach or alleged breach of (a) this Agreement, or (b) any applicable law or regulation, and Customer will hold harmless and indemnify Cube against any damages or costs awarded against Cube (including reasonable attorneys' fees) or agreed in settlement by Customer resulting from the claim.
The indemnifying party's obligations in this Section are subject to receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party's expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party's prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Cube is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
In response to an actual or potential infringement claim, if required by settlement or injunction or as Cube determines necessary to avoid material liability, Cube may at its option: (a) procure rights for Customer continued use of the Service; (b) replace or modify the alleged infringing portion of the Service to avoid infringement with substantially similar functionality; or (c) terminate the applicable Service in the affected Order and refund any pre-paid, unused fees for the terminated portion of the Subscription Term. Cube's obligations in this Section do not apply: (1) to infringement resulting from Customer's modification of the Service or use of the Service in combination with items not provided by Cube (including Third-Party Services); (2) to infringement resulting from Software other than the most recent release; (3) to unauthorized use of the Service or if Customer is in breach of an Order, Usage Plan, or this Agreement; (4) if the total aggregate fees paid to Cube for the Service is less than US$100,000 in the twelve (12) month period immediately preceding the claim; (5) to infringement resulting from compliance by Cube with Customer designs, plans, specifications or instructions; (6) if Customer settles or makes any admissions about a claim without Cube's prior written consent; or (7) to any claim arising from or related to Customer's indemnification obligations. This Section 8 (Indemnification) sets out Customer's sole and exclusive remedy and Cube's entire liability regarding infringement of third-party intellectual property rights.
This Agreement is effective for Customer's applicable Subscription Term unless terminated as described in this Agreement.
Either party may terminate this Agreement (including all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Cube terminates this Agreement for Customer's material breach under this Section, Customer will promptly pay Cube any outstanding fees or expenses due and any fees for the terminated portion of the Subscription Term. If Customer terminates this Agreement for Cube's material breach under this Section, then, at Customer's request, Cube will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. In no event will any termination relieve Customer of the obligation to pay any expenses and fees payable to Cube for the period prior to the effective date of termination. Except where an exclusive remedy is provided, exercising a remedy under this Agreement does not limit other remedies a party may have. For clarity, Cube may modify or discontinue the Service, including any portions of the Service, as we update our offerings and add more features.
Upon expiration or termination of this Agreement or an Order, Customer's access to the applicable Service will immediately cease and Customer must stop sending Customer Data to the Service. Termination of an Order will not be deemed a termination of this Agreement or any other Order; however, termination of this Agreement will immediately terminate all outstanding Orders. At the disclosing party's request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party's Confidential Information (including Customer Data in an Account, which Cube will delete after termination or expiration). Confidential Information may be retained in the receiving party's standard backups after deletion but will remain subject to this Agreement's confidentiality restrictions.
From time to time, Customer may choose to engage Cube for training, enablement, or other technical services in respect of the Service ("Technical Services"). Any purchased Technical Services are as described in the relevant Order. For clarity, the purchase of Technical Services is not required in order for Customer to use and access the Service and Customer agrees that Technical Services do not form part of the Service.
Customer will give Cube timely access to Customer materials, systems, and other resources ("Customer Materials") reasonably needed to provide the Technical Services, and if Customer fails to do so, Cube's obligation to provide Technical Services will be excused until access is provided. Cube may make use of service partners to provide the Technical Services. Customer represents and warrants to Cube that it has all necessary rights, consents, and permissions to provide the Customer Materials to Cube. Customer, as between the Parties, retains all ownership rights in the Customer Materials and grants to Cube a limited right to use and access the Customer Materials only to provide the Technical Services to Customer. Cube will treat the Customer Materials as Confidential Information. Subject to payment of the applicable fees and a current subscription to the Service, Customer is granted a non-exclusive and non-transferable license to use the product of any Technical Services for its own internal business purposes only and consistent with the licenses and restrictions set forth in this Agreement.
Cube warrants to Customer that Cube will perform any Technical Services in a professional and workmanlike manner. If Cube breaches this warranty and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, such that Cube can reproduce or verify such issue, then Cube will use commercially reasonable efforts to correct the non-conformity. If Cube cannot correct the non-conforming Technical Services, either party may terminate the applicable Technical Services from the affected Order, in which case Cube will refund to Customer any such pre-paid, unused fees for the terminated portion of the Subscription Term. These procedures are Customer's sole and exclusive remedy and Cube's entire liability for breach of this Section. THE ENTIRE LIABILITY OF CUBE UNDER OR IN CONNECTION WITH THE TECHNICAL SERVICES WILL AT ALL TIMES BE LIMITED TO THE FEES PAID FOR SUCH TECHNICAL SERVICES IN THE APPLICABLE TECHNICAL SERVICES ORDER.
Customer may not assign this Agreement (or any Order) without the prior written consent of Cube, except that Customer may assign this Agreement (and applicable Order) in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities provided that Customer is in good standing with Cube and that such assignment by Customer does not expand its scope of use for the Service. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of Customer's permitted successors and assigns.
This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions or the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California, and both Parties submit to the personal jurisdiction of those courts.
Notices to you will be deemed given upon: (a) personal delivery; (b) 3 days after sending via certified, registered mail, or deposit with a globally recognized courier; or (c) email to your account administrator or the contact on the Order. Cube may also provide notices to you electronically, including but not limited to through the Site or Service, which shall be deemed given to you upon dispatch including if the last email address you provided to us is invalid, or for any reason that any such notice is not capable of delivery to you. Customer may update its address with notice to Cube in accordance with this Section. You are responsible for providing us with your most current email address and updating it as applicable.
This Agreement (and all Orders), the Documentation, and any addenda or policies otherwise made available on the Site by Cube is the Parties' entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. Cube may release additional features, modules, or pre-release, preview, and beta products available to Customer subject to Service Specific Terms. In this Agreement, headings are for convenience only and "including" and similar terms are to be construed without limitation. The terms in any Customer purchase order, business form, online terms (i.e. click-wrap or browse-wrap), or invoicing portal will not amend or modify this Agreement and are expressly rejected; any of this documentation is for Customer's own administrative purposes only and is not binding on Cube.
Cube may modify this Agreement from time to time. If we determine in our sole discretion that an update is material, we will provide notice of such material change to you through the Service, Site, our blogs or forums. Any changes to this Agreement posted on the Site will be effective immediately if Customer assents to such changes or for any new or renewal Subscription Term, and thirty (30) days thereafter for all other customers with an existing Subscription Term, except changes required by law or as necessary for use of any new products or features, which will immediately become effective to the extent necessary to comply with such law or as required to use such new products or features. If Customer objects to the updated Agreement within such period, as Customer's sole and exclusive remedy and without penalty, Customer may choose to continue its use of the Service under the prior version of this Agreement until Customer's next Subscription Term renewal and such updated Agreement will automatically apply as of the renewal Subscription Term unless you elect not to renew. In any event continued use of the Service during the renewal Subscription Term will constitute Customer acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Waivers must be signed by the waiving party's authorized representative and cannot be implied. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
Cube is not liable for any delay or failure to perform any obligation under this Agreement or any Order due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
Cube uses third-party hosting and other service providers (e.g. data center providers or support ticketing systems) in our supply of the Service and related features and support.
The Parties are independent contractors, not agents, partners, or joint venturers.
To the extent Cube separately makes available other open source software ("OSS") for download (e.g. community tools), such code is governed by the terms of the applicable OSS license. To the extent required, the license for any OSS included in the Software, identified in the Documentation, will apply to the OSS instead of this Agreement.
This Agreement is directly between Cube and Customer and governs all use of the Service by Customer. Channel Partners are not authorized to modify this Agreement or make any promises or commitments on Cube's behalf, and Cube is not bound by any obligations to Customer other than as set forth in this Agreement. Cube is not party to (or responsible under) any separate agreement between Customer and Channel Partner. Cube is not responsible for any acts, omissions, products or services provided by Channel Partner.
BY USING SERVICE OR OTHER SERVICES PROVIDED BY US, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICE AND AGREE TO BE BOUND BY THEM.
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