Terms of service
Last uploaded: December 14, 2020
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These Terms of Service (the “Terms”) govern Exposebox Ltd.’s or any of its affiliates’ (“Exposebox” or “Company”) relationship with you (“you” or “Customer”) and shall be effective as of the earlier of: (i) your acceptance of the Terms online by submitting your registration details, or (ii) the effective date set forth in the Order Form (“Effective Date”).
These Terms, together with our Privacy Policy, Product and Services Privacy Policy and Data Protection Addendum shall constitute an agreement between you and Exposebox and be deemed an integral part of the order form (the “Order Form”), if executed additionally between Exposebox and you (all together with these Terms – the “Agreement”), setting forth the specific terms and conditions upon which the Exposebox services, including any additional professional services requested by the Customer (the “Services”) are licensed to you. In the event of any discrepancies between these Terms and an Order Form, the terms set forth in such Order Form shall prevail. Capitalized terms not defined under these Terms shall have the meaning ascribed to them in the Order Form. Each of Exposebox or Customer shall be referred as a “Party” and together the “Parties”.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “SUBMIT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EXPOSEBOX, (3) YOU HAVE PROVIDED ACCURATE, CURRENT AND COMPLETE INFORMATION ABOUT CUSTOMER AS PROMPTED BY THE ACCOUNT REGISTRATION FORM, AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR DO NOT HAVE LEGAL AUTHORITY TO BIND THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. SERVICES
1.1 License. During the Subscription Term (as defined in Section 12 of these Terms) and subject to compliance with the Agreement, Exposebox grants Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable license (i) for Customer and Customer’s authorized users (the “Authorized Users”) to use the Services for Customer’s internal business use, and solely for Customer’s websites, mobile apps or other digital assets for which the Services are to be provided (“Digital Assets”) as detailed in your account and/or applicable Order Form; (ii) to implement Exposebox’s proprietary code (the “Code”), which Customer will be required to integrate with the respective Digital Assets according to Exposebox’s Documentation (as defined below) made available to Customer by Exposebox. Customer shall use the licenses granted herein only for Customer’s own benefit and not for the benefit of any third party.
1.2 License to Customer Marketing Content. In connection with the Exposebox Ads Service, Customer grants Exposebox a non-exclusive, transferable, royalty-free license during the Subscription Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Customer to Exposebox (the “Customer Marketing Content”) in connection with the advertising, promotion and sale of Customer’s products, services or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer acknowledges and agrees that Exposebox or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in Exposebox’s reasonable discretion.
2. INTEGRATION
Customer hereby undertakes to (i) install and integrate the Code onto its applicable Digital Assets as per the Documentation; (ii) cooperate with Exposebox, and provide all reasonable assistance and information to Exposebox, in order to allow for Exposebox to provide the Services, including without limitation timely access to relevant data, information, and personnel of Customer, and (iii) use the Services, Code and Documentation in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws. Customer acknowledges that such cooperation and assistance is necessary to enable Exposebox to perform the Services. Without limiting the generality of the foregoing, additional Customer obligations may be set forth in the applicable Order Form.
3. MODIFICATION TO THESE TERMS OF SERVICE
Exposebox may modify these Terms or any policy or other terms referenced in these Terms including but not limited to the Privacy Policy and, if applicable, the Data Protection Addendum (collectively, “Additional Policies”) at any time by posting a revised version of the Terms and the Additional Policies on the Exposebox Site. The revised Terms and/or Additional Policies shall be effective ten (10) days after such posting. When material modifications are made, ExposeBox may (and where required by law, will) send you a written notice to this effect. By continuing to use or receive the Services, Customer agrees to be bound by the revised Terms or any revised Additional Policies. It is Customer’s responsibility to check the websites listed herein regularly for changes to these Terms or the Additional Policies, as applicable. If Customer disagrees with any modifications to these Terms and/or Additional Policies, Customer’s sole and exclusive remedy shall be to discontinue using the Services and cancel your registration.
4. PROPRIETARY RIGHTS
4.1 Exposebox retains ownership of all Intellectual Property Rights in the Services, Code, Documentation, or any programing tools provided by ExposeBox, and in the copies thereof and Customer acknowledges that all Intellectual Property Rights in and to the Services, Code, Documentation or any programing tools provided by ExposeBox, and any and all trademarks, trade names, copyrights, patents, patentable inventions are and shall remain in the sole and exclusive ownership of ExposeBox, subject only to the rights and licenses expressly granted by Exposebox hereunder. For the purposes of these Terms “Intellectual Property Rights” shall mean the intangible legal rights, interests and/or benefits evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright-ability, but including copyrights and any moral rights recognized by law; and (c) any other similar rights, in each case on a worldwide basis.
4.2 Customer owns and retains at all times ownership of any and all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, algorithms, knowhow, tools, computer software and similar rights, in and to the Digital Assets, and any part thereof including without limitation any and all derivative work, enhancements, changes, feedbacks, error-corrections, or any other modifications or improvements, by whomever produced.
4.3 For the purpose of these Terms the term “Documentation” means the specifications, design documents and analyses, programming tools, plans, models, flow charts, reports and drawings, documentation and any other descriptions related to the Services as may be provided by Exposebox to Customer from time to time (including by posting on the Exposebox Site), which in any event are designed to explain the intended functionality of the Services and to assist in the installation, use and configuration of the Services.
4.4 Customer shall not, and shall not allow any third party to, (i) attempt, or take a part in an attempt, to infiltrate, hack, reverse engineer, decompile, or disassemble the Services, Code or any part thereof for any purpose; (ii) represent that it possesses any proprietary rights in the Services, Code, Documentation or any part or derivative thereof; (iii) directly or indirectly, take any action to contest Exposebox’s Intellectual Property Rights or infringe them in any way; (iv) except as specifically permitted in writing by Exposebox, use the name, trademarks, trade-names, and logos of Exposebox; (v) except as specifically permitted herein, use, copy, modify, adapt, translate or otherwise create derivative works of any part or content of the Services, Code, reports or Documentation; (vi) remove the copyright, trademark, or other proprietary notices contained on or in the Services, Code or other products,or Documentation provided in the course of performance of the Services; (vii) take any action intended to damage, disrupt, interfere with, or limit, the proper functionality of the Services or the Code, or to enable non-Authorized Users to obtain access unauthorized by Exposebox to the Services or any system, data, password or other information of Exposebox , its users, or any other individual or entity related to Exposebox; or (viii) rent, lease, sell, assign or otherwise transfer rights in or to the Services, Code or Documentation.
4.5 Notwithstanding the foregoing, any output generated or produced by the Services, including any data, reports, statistics, conclusions, analyses, lists and recommendations, relating solely to Customer, shall be the sole and exclusive property of Customer. Customer hereby grants Exposebox a non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license, during the Subscription Term, to use, reproduce, and prepare derivative works of all data provided by Customer to Exposebox in connection with these Terms and all output generated and produced by the Services, solely to permit Exposebox to perform the Services to Customer as set forth and subject to these Terms.
4.6 Except as expressly granted in these Terms, no license or right is granted to Customer by implication, estoppel or otherwise with respect to the Services, Code, Documentation or any other Intellectual Property Rights of Exposebox.
5. ORDER FORMS, PAYMENTS AND INVOICING
5.1 All Order Forms are binding and non-cancellable unless explicitly set forth in the applicable Order Form.
5.2 Unless agreed separately in the applicable Order Form, the fees for the Services shall be according to the then current pricing list posted on the Exposebox Site. Exposebox shall be entitled to change fees for the Services at any time. In the event ExposeBox shall elect to increase the Services fees, it shall notify the Customer at least 15 days before start of the billing period from which the Service fees will be increased.
5.3 All prices posted on the Exposebox Site or agreed in an applicable Order Form are net amounts payable to Exposebox and are exclusive of all federal, state and local excise, sales, use, value-added, occupational, levies, assessments, import duties and like taxes which may be imposed by any governmental entity in connection with any transaction contemplated by these Terms and/or the Order Form (excluding any taxes assessed against Exposebox’s net income). It is hereby clarified that Customer shall be fully responsible to pay any indirect taxes, including, among others, sales, use, value-added, levies, or any other taxes which may be imposed in connection to these Terms, even if not stated in the relevant invoice (excluding any taxes assessed against Exposebox’s net income) and Customer shall not be entitled to withhold or deduct any such taxes from the consideration.
5.4 Unless expressly stated otherwise in the applicable Order Form or determined in the pricing list posted on the Exposebox Site:
5.4.1 Fees are invoiced in advance with a 30-days billing cycle and will be charged for each billing period on or after the first day of such billing period based on actual usage of the Services in a previous billing period.
5.4.2 Invoices shall be issued and delivered to the Customer digitally.
5.4.3 All payments shall be made in U.S. Dollars.
5.4.4 Fees for Exposebox Ads Services shall be 15 % of the media buy amount.
5.4.5 Customer may not carry over any monthly unused volume to the following month.
5.4.6 Any unused portion of the Exposebox Ads Services budget allocated by Customer but not used shall be automatically forwarded to the next calendar month.
5.5 Each payment to be made by Customer hereunder in respect of the Services shall be made without set-off, withholding, counterclaim, reduction or diminution of any kind or nature.
5.6 If Customer is paying by credit card, (a) Customer hereby irrevocably authorizes Exposebox to charge the credit card for any such amounts when due, (b) amounts due will be automatically charged, (c) if Customer’s credit card is declined, Exposebox will attempt to reach out to Customer for a new payment method, and (d) if Customer’s credit card expires, Customer hereby gives Exposebox permission to submit the credit card charge with a later expiration date. If Exposebox fail to resolve an issue with Customer resulting from a credit card decline or expiration within ten (10) days after such payment is due, ExposeBox may terminate or suspend your account due to non-payment.
5.7 All payment transactions conducted through the Exposebox Site are processed by Marketcom Limited, an affiliate of Exposebox. By providing your credit card details through the Exposebox Site, you further consent for Exposebox and Marketcom Limited to give authorization to our third party payment platform Stripe (https://www.stripe.com/) to collect, use, retain, and disclose your payment card details and charge your credit card for the fees for the Services.
5.8 If Customer is late on payment for the Services, Customer will be notified and given 7 days to rectify the issue and resume payment. Late payments shall bear interest at the rate of 1.5% per month (or the highest rate permitted by applicable law, if less) from the payment due date until paid in full. Customer will be responsible for all expenses (including reasonable attorneys’ fees) incurred by Exposebox in collecting such late payments amounts. If payment is not made, Exposebox may terminate the Agreement or suspend the Services for breach pursuant to these Terms.
5.9 In the event of termination of the Agreement due to a material breach by Exposebox, Exposebox shall refund any prepaid unused fees paid for the Services by Customer. Except in the event of termination of the Agreement due to a material breach by Exposebox, no refund, full, partial or pro-rated, shall be provided for a Subscription Term which has already commenced and Customer will remain responsible for all fees, even if such fees remain due and payable after termination of the Agreement. Failure to use the Services does not excuse any obligation to pay the fees, and Customer will not receive a refund for amounts previously paid or amounts owed up to the effective date of termination.
6. USE OF THE SERVICES
6.1 Communications. Customer is responsible for obtaining and maintaining all of the appliances, hardware, software and services that Customer may need to access and use the Services.
6.2 Customer Management. Customer is solely and fully responsible for complying with the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Acts and applicable foreign and international laws pertaining to marketing messages, and Customer assumes full responsibility for ensuring that marketing messages are only sent to those who are legally eligible to receive them. Customer’s obligations with respect to customer management include those more fully described in Section 6.6 and 8.2 below.
6.3 Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Exposebox.
6.4 Suspension, Limitation or Termination. Exposebox shall be entitled to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event (i) that Exposebox determines, in its sole discretion, that the Services are being used in violation of applicable federal, state or local law or ordinance, these Terms, or any agreement applicable to the Services; (ii) that Exposebox , in its sole discretion, determines that the Services are being used in an unauthorized, inappropriate, or fraudulent manner; (iii) that Exposebox determines that the use of the Services adversely affects Exposebox’s equipment or service to others; (iv) Exposebox is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which ExposeBox determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of Customer Data. In addition, Exposebox shall have the right to immediately deny or suspend access to the Services in the event Exposebox is not paid any amount due in connection with the Services or Customer’s breach or alleged breach of these Terms. Without limiting the generality of Section 6, ExposeBox shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services in accordance with these Terms.
6.5 Prohibited Activities. Customer may not use the Services (i) in violation of these Terms; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation; (iv) to store, or transmit throughout, defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store or transmit obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, Trojan horses, spyware, worms, other malicious or harmful code. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services. Customer may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Exposebox. Customer may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Services by any other party. Customer may access the Services only through the interfaces and protocols provided or authorized by Exposebox. Customer may not access the Services through unauthorized means, such as unlicensed software clients. Customer may not compile or use the Exposebox provided materials or any other information obtained through the Services for the purpose of spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
6.6 No Spam; Customer’s Obligation to Obtain Permission. Under the terms of the CAN-SPAM Act, as between Exposebox and Customer, Customer is the sender of emails and is obligated to follow all legal requirements applicable to the sending of emails under CAN-SPAM, including but not limited to the prohibition against sending unsolicited emails to persons with whom Customer does not have a business relationship or who have not requested (opted-in) to Customer’s emails (Spam). As part of its agreement to these Terms, Customer agrees to only send permission-based emails in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive email communications from Customer. Emails sent by Customer must include all information required by CAN-SPAM.
6.7 No Children’s Information. Customer agrees not to upload or incorporate into any customer lists, or otherwise provide to Exposebox any information about individuals that Customer knows or has reason to know are under the age of 16. If Customer discovers that it uploaded, incorporated into any customer lists, or otherwise provided to Exposebox any information about individuals that Customer knows or discovers are under the age of 16, Customer agrees to promptly remove such information from Exposebox’s systems and notify Exposebox of such occurrence.
6.8 Customer Account. Customer represents and confirms that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer is solely responsible and liable for maintaining the confidentiality and security of Customer’s account credentials, as well as for all activities that occur under or in Customer’s account. You shall immediately notify Exposebox in writing of any unauthorized access to, or use of your account, or any other suspected or actual breach of security; but you also acknowledge that Exposebox may be unable to remedy the damage or loss (or otherwise assist) in such scenarios. Personal information received during the account registration process will be stored and used by Exposebox in accordance with the Privacy Policy.
7. CONFIDENTIALITY
7.1 Either party may from time to time during the Subscription Term, disclose (the “Disclosing Party”) to the other party (the “Receiving Party”) certain non-public, proprietary, confidential and/or trade secret information of a party hereof (the “Confidential Information”). Regardless of whether so marked or identified, or the manner in which it is furnished, any information that may under the circumstances reasonably be considered confidential, proprietary or competitively sensitive, including but not limited to the terms and conditions of the Agreement, will be considered Confidential Information of the Disclosing Party. The Receiving Party agrees: (a) not to disclose the Disclosing Party’s Confidential Information to any third parties other than to its directors, officers, employees, advisors or consultants (collectively, the “Representatives”) on a strict “need to know” basis for the purpose of provision of the Services and provided that such Representatives are bound by written agreements to comply with confidentiality obligations at least as protective as those contained herein; (b) not to use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the Disclosing Party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
7.2 The foregoing shall not apply to any information that the Receiving Party can prove by reasonable written and dated records: (i) is already in the Receiving Party’s possession, prior to the disclosure thereof, other than as a result of the breach of a legal or contractual obligation on the part of the Receiving Party; (ii) was lawfully received by Receiving Party from a third party having rights to disclose, and under no confidentiality obligations known to Receiving Party with respect to such information; (iii) is or becomes a part of the public knowledge through no wrongful act of either Party; (iv) is approved for release in writing by the Disclosing Party to whom the confidential or proprietary information belongs; or (v) is or was developed independently by the Receiving Party without reliance on, reference to or use of any information of the other Party, and without any breach of these Terms, as evidenced by contemporaneous written documents. Notwithstanding the foregoing, if the Receiving Party is required by legal process or applicable law, rule, or regulation to disclose any of the Disclosing Party’s Confidential Information, then prior to such disclosure, if legally allowed, the Receiving Party will give prompt notice to the Disclosing Party so that it may seek a protective order or other appropriate relief.
7.3 The confidentiality and non-use obligations under this Section 7 shall be in effect for the Subscription Term and shall survive any expiration or termination of the Agreement for a period of 3 years and shall supersede any previous confidentiality undertakings between the parties.
8. PRIVACY AND DATA PROTECTION
8.1 The Customer will grant Exposebox access to data collection from the Customer’s end users (the “End Users”) as needed for the purpose of performing the Services, or otherwise share End User’s data with Exposebox. All data protection obligations of the Parties under this Agreement are subject to the Data Protection Addendum, the terms of which are incorporated herein by reference.
8.2 The Customer acknowledges and agrees that Exposebox is solely a service provider, and has no contractual relationship or interaction with the End Users. Customer further acknowledges that the collection and processing of Personal Data, as defined and described in the Data Protection Addendum, through the Services is designed to and based on permissions and disclosures presented by Customer as required under applicable laws. Hence, Customer shall be responsible for obtaining its End Users’ consent to the collection and processing of data, by displaying permissions, notices or consent mechanism, as well as disclosing its use of the Code and the Services and sharing of data with Exposebox, as required under applicable laws, including a link to the Exposebox Privacy Policy available at: https://exposebox.com/privacy-policy/. Customer will enable End Users to revoke their consent or opt-out of data collection, as required under applicable laws. In the event requested by Exposebox, the Customer will be able to demonstrate End Users’ consent obtained by Customer.
8.3 Exposebox will store, process and use Personal Data, pursuant to the Exposebox’s Privacy Policy and, unless agreed otherwise with the Customer separately, Product and Services Privacy Policy.
8.4 No Legal Advice. Notwithstanding the above, Exposebox recommendation of any particular language herein or of any additional recommended language in the future, including regarding privacy notices, is not legal advice and Exposebox has not and does not render any legal advice or offer legal assistance hereunder. Furthermore, Customer acknowledges and agrees that Customer is solely responsible for and should rely on its own legal counsel as to its own privacy disclosures and other legal requirements. The Customer is solely responsible for the content and effectiveness of its privacy policy and notices, and will not make any representations or warranties about the ExposeBox or the Services (except as set forth above).
9. SERVICES WARRANTIES; DISCLAIMER OF WARRANTIES
9.1 Exposebox represents and warrants that:
9.1.1 it is not bound by or a party to any agreement or understanding with any third party that interferes with or shall interfere with its right to perform its obligations under these Terms and license the Services hereunder;
9.1.2 the Services to be provided under these Terms, as well as any medium used to provide such Services, to Exposebox’s knowledge, will be free of viruses, worms, malware, Trojan horses, time bombs, back or trap doors or any other debilitating or disabling devices or malicious code;
9.1.3 any Support, except for the Services provided within Trial Period, shall be performed (i) in accordance with the SLA (as defined below), (ii) by persons with the proper skill, training and background, and (iii) consistent with generally accepted industry standards.
9.2 Technical support and details regarding the availability of the Services, including access to the Services, shall be in accordance with the Exposebox’s Support Policy available at https://www.exposebox.com/sla/, as may be updated by Exposebox, the terms of which are incorporated herein by reference (the “SLA”).
9.3 EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT, YOU AGREE THAT EXPOSEBOX HAS MADE NO EXPRESS WARRANTIES TO YOU REGARDING THE SERVICES AND THE CODE AND THAT THE SERVICES AND CODE ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. EXPOSEBOX DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SERVICES AND CODE; EXPRESS OR IMPLIED; INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; MERCHANTABLE QUALITY OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10. LIMITATION OF LIABILITY
10.1 EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL EXPOSEBOX BE LIABLE TO YOU FOR ANY LOSS OF USE; INTERRUPTION OF BUSINESS; OR ANY DIRECT; INDIRECT; SPECIAL; INCIDENTAL; OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; EVEN IF EXPOSEBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THESE TERMS IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF EXPOSEBOX, FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNTS PAID AND DUE BY CUSTOMER TO EXPOSEBOX DURING THE PERIOD OF THE 6 MONTHS PRECEDING THE DATE OF THE CLAIM. THE FOREGOING PROVISION LIMITING THE LIABILITY OF EXPOSEBOX SHALL APPLY REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR A BREACH OF A FUNDAMENTAL TERM OR CONDITION.
10.3 THE PROVISIONS OF THIS SECTION 10 SHALL NOT APPLY TO ANY CLAIM RESULTING FROM: (I) EXPOSEBOX’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD; OR (II) EXPOSEBOX’S BREACH OF CONFIDENTIALITY OBLIGATIONS.
11. INDEMNIFICATION
11.1 Exposebox Indemnification
11.1.1 In the event that a legal action is brought against Customer to the extent that it is based on a claim that the Services infringes a patent, copyright, trademark, service mark, trade secret, database right or other intellectual property or proprietary right of a third party (an “Infringement Claim”), Exposebox shall provide Customer with legal defense at its own expense and pay for costs and damages awarded against Customer in such action or agreed to under a settlement, provided that: (i) Customer promptly provides Exposebox with a written notice of such legal action, provided that failure of the Customer to give Exposebox prompt notice as provided herein shall not relieve Exposebox of any of its obligations under this Section 11, except to the extent that Exposebox is materially prejudiced by such failure; (ii) Customer grants Exposebox complete authority over the legal defense and settlement negotiations, provided, however, that no settlement of an Infringement Claim that involves a remedy other than the payment of money by Exposebox shall be entered into without the consent of Customer, which consent will not be unreasonably withheld; (iii) Customer fully cooperates with Exposebox with respect to such legal action; and (iv) no settlement with respect to such legal action shall be made without Exposebox’s prior written approval.
11.1.2 Notwithstanding the above, Exposebox shall have no liability to defend and pay for any Infringement Claim to the extent that the action: (i) is based on a modification of the Services modified not by Exposebox; (ii) results from Customer’s failure to use an updated version of the Services; (iii) is based on a combination or use of the Services with any software, program or device, including without limitation software licensed under the terms of applicable open source licenses, not provided or approved by Exposebox; (iv) results from Customer’s use of the Services following the termination of the Agreement.
11.1.3 In the event that Customer is enjoined or prevented from using any Services as a result of an Infringement Claim, Exposebox agrees, to (i) procure the right to continue using the Services or (ii) replace or modify the Services to eliminate the infringement while providing substantially equivalent functional performance. In the event that Exposebox is unable to procure the right to continue using or replace or modify the Services pursuant to clauses (i) and (ii) above, Customer shall have the right to terminate the Services, or the Agreement, and Exposebox shall refund to Customer the unearned portion of the amount actually paid to Exposebox for the Services.
11.1.4 THIS SECTION 11.1 STATES EXPOSEBOX’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO AN INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OF ANY KIND RELATED TO THE PLATFORM PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
11.2 Customer Indemnification. Customer will defend, hold harmless, and indemnify Exposebox and/or its subsidiaries, affiliates, directors, officers, employees, agents, its licensors, successors and permitted assigns (collectively, the “Exposebox Indemnitees”) from and against any and all claims, suits, actions, demands, proceedings, costs, expenses, losses, damages and/or liabilities of any kind (including but not limited to reasonable attorney’s fees) threatened, asserted or filed, brought, commenced or prosecuted (collectively, “Demands”) by any third party against the Exposebox Indemnitees arising out of or relating to: (a) any acts or omissions on the part of Customer; (b) a breach or alleged breach of any warranty, representation or obligation made by Customer under the Agreement; or (c) any use of the Services, Code or Documentation in any manner inconsistent with or in breach of the Agreement.
12. TERM, TERMINATION OF THIS AGREEMENT
12.1 Subscription Term. Unless agreed otherwise in the applicable Order Form, the Agreement shall be in effect as of the Effective Date for a period of 1 month following the expiration of a free trial period, if any (“Initial Subscription Term”), unless earlier terminated in accordance with this Section 12. Thereafter the Agreement shall be renewed automatically for additional 1-month periods (together with the Initial Subscription Term – the “Subscription Term”), unless either Party provides a prior written notice of non-renewal before start of the upcoming renewal. Customer will remain liable for all fees, even if such fees remain due and payable after termination of the Agreement
12.2 Free trial period. If you register on the Exposebox Site for 30-days free trial period or Exposebox agreed to provide the trial period in the Order Form, Exposebox will make the limited scope of the Services available to you on a trial basis free of charge until the earlier of (a) the end of a 30-days trial period, unless longer period agreed in the Order Form (b) the start of any paid subscription for the Services, or (c) termination of the Agreement by you or Exposebox. If, at the end of the trial period, you do not sign up for a paid subscription of the Services, your account will be suspended or terminated. During the trial period, either party may terminate the Agreement for any reason by sending a 48 hours’ prior written notice to the other party.
12.3 Upon termination of the Agreement for any reason, Customer will: (i) immediately cease use of the Services; (ii) return to the Company any and all Confidential Information then in its possession; and (iii) certify in writing to the Company that all copies and partial copies of the Services and related Documentation have been either returned to the Company or otherwise erased or destroyed and deleted from any computer libraries or storage devices and are no longer in use by the Customer.
12.4 Anything to the contrary herein notwithstanding, the following Sections 4, 5, 6, 7, 8, 9.3, 10, 11 and 13 shall survive any termination or expiration of the Agreement. Payments that accrue and are due prior to termination of the Agreement shall survive expiration or termination of this Agreement for any reason.
13. GENERAL PROVISIONS
13.1 Assignment. The Customer may not assign, transfer, or otherwise dispose of this Agreement or any of its rights, interest, or obligations hereunder without the prior written consent of Exposebox. Exposebox may transfer or assign this Agreement to: (a) an affiliate of the Exposebox; or (b) an acquirer of all or substantially all of the shares or assets of such party through change of control event. Any assignment of this Agreement in violation of this provision shall be null and void.
13.2 Notices. All notices and demands hereunder shall be in writing and shall be served by at least one of the following: (1) personal service; (2) registered or certified mail at the address of the receiving Party set forth in the Order Form or in your account (or at such different address as may be designated by such Party by written notice to the other Party); (3) electronic mail to the address of the receiving Party set forth in the Order Form or in your account with electronic confirmation and followed immediately by (1) and/or (2). All notices to Exposebox shall be sent with a copy to an email: legal@exposebox.com
13.3 Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of Israel, without giving effect to its conflicts of laws provisions, and the competent Courts situated in Tel Aviv shall have sole and exclusive jurisdiction over the Parties and any conflict and/or dispute arising out of, or in connection to, this Agreement.
13.4 Integration. This Agreement, including Privacy Policy, Product and Services Privacy Policy and Data Protection Addendum, sets forth the entire agreement between the parties on the subject hereof and supersedes any and all previously or currently existing oral or written agreements, understandings, memoranda, letters of intent, or representations on the subject matter hereof, as of the Effective Date. The Order Form signed between the parties may be amended only by a writing signed by the duly empowered representatives of the Parties.
13.5 Severance. If any one or more of the terms of this Agreement shall for any reason be held to be invalid or unenforceable, such term shall be construed in a manner to enable it to be enforced to the extent compatible with applicable law. Any determination of the invalidity or unenforceability of any provision of the Agreement shall not affect the remaining provisions hereof unless the business purpose of this Agreement is substantially frustrated thereby.
13.6 Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
13.7 Publicity. Exposebox shall be entitled to use the Customer’s logo on its website and promotional materials, subject to guidelines provided by the Customer, and shall be entitled to refer publicly in general terms to the engagement between the Parties.
