Cubby Enterprises, Inc.
API Terms of Service
Last Updated June 8, 2023
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE CUBBY API, BY CLICKING "I AGREE" OR "I ACCEPT," OR BY SIGNING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO BE BOUND BY THESE CUBBY API TERMS OF SERVICE (THESE "TERMS"). IF YOU DO NOT AGREE, DO NOT ACCESS OR USE THE API.
These Terms are between Cubby Enterprises, Inc., a Delaware corporation ("Cubby," "we," "us," or "our"), located at 43 W 24th St, Suite 1102, New York, NY 10010, and you or the entity you represent ("you" or "your"). If you are accessing or using the API on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity, in which case "you" refers to that entity. If you lack such authority, or do not agree to all of these Terms, you may not access or use the API.
1. Definitions.
a. "API" means the application data, programming interface and any related documentation, sample source code, tools, instructions, or other API materials made available to you by Cubby, including, without limitation, through its system platform for the storage industry, including any Updates.
b. "API Key" means the security key Cubby makes available for you to access the API.
c. "Applications" means any applications developed by you to interact with the API.
d. "Cubby Offering" means the technology and application software for the storage industry made available by Cubby.
e. "Fees" means the fees charged by Cubby and payable by you for use of the API as set forth in the applicable Order.
f. "Order" means an ordering document or online order specifying, among other things, the Fees to be charged for use of the API that is entered into between Cubby and you, including any addenda and supplements thereto.
g. "Updates" means any updates, schema changes, bug fixes, patches, or other error corrections to the API that Cubby generally makes available free of charge to all licensees of the API.
2. License Grant.
a. Grant. Subject to your payment of applicable Fees and compliance with these Terms, Cubby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the Term to use the API for the sole purposes of managing your products, monitoring sales of your products, and charging Cubby's customers for product usage as observed through the API. This license also includes the right to extend the use of the API for additional purposes as may be mutually agreed upon in writing by the parties from time to time.
b. Restrictions. You shall not use the API for any purposes beyond the scope of the license granted in these Terms. Without limiting the foregoing and except as expressly set forth in these Terms, you shall not at any time, and shall not permit others to: (i) copy, modify, or create derivative works of the API, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the API; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the API, in whole or in part; (iv) remove any proprietary notices from the API; (v) use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) design or permit your Applications to disable, override, or otherwise interfere with any Cubby-implemented communications to end users, consent screens, user settings, alerts, warnings, or the like; (vii) use the API in any of your Applications to replicate or attempt to replace the user experience of the Cubby Offering; or (viii) attempt to cloak or conceal your identity or the identity of your Applications when requesting authorization to use the API.
c. Reservation of Rights. Cubby reserves all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted, nothing in these Terms grants to you or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the API.
3. Your Responsibilities.
a. End User Responsibility. You are responsible and liable for all uses of the API resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. You are responsible for all acts and omissions of your end users in connection with your Applications and their use of the API, if any. Any act or omission by your end user that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you. You shall take reasonable efforts to make all of your end users aware of the relevant provisions of these Terms and shall cause end users to comply with such provisions.
b. API Key Security. You must obtain an API Key directly from Cubby. You may not share the API Key with any non-affiliated third party, must keep the API Key and all log-in information secure, and must use the API Key as your sole means of accessing the API. The API Key may be revoked at any time by Cubby.
c. Compliance. You shall comply with all terms and conditions of these Terms, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that Cubby may provide to you from time to time. You shall monitor the use of your Applications for any activity that violates applicable laws, rules, and regulations or any terms and conditions of these Terms, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users from further use. You are solely responsible for posting any privacy notices and obtaining any consents from your end users required under applicable laws, rules, and regulations for their use of your Applications.
d. IP Protection. You will use commercially reasonable efforts to safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify Cubby if you become aware of any infringement of any intellectual property rights in the API and will fully cooperate with Cubby in any legal action taken by Cubby to enforce its intellectual property rights.
4. Updates. During the Term, Cubby will provide you, at no additional charge, all Updates, each of which are a part of the API and are subject to these Terms. You acknowledge that Cubby may require you to obtain and use the most recent version of the API. For any Update that introduces a breaking change to existing integrations (i.e., a change that is not backwards-compatible and that may adversely affect how your Applications communicate with the Cubby Offering), Cubby will use commercially reasonable efforts to provide you with at least thirty (30) days' prior written notice and will use commercially reasonable efforts to make the prior version of the API available during such notice period to allow for integration updates. You are responsible for making any changes to your Applications required for integration as a result of any Update, at your sole cost and expense. For non-breaking Updates, Cubby will use reasonable efforts to provide advance notice.
5. Fees and Payment.
a. Fees. You shall pay the Fees set forth in the applicable Order. Cubby will invoice you in accordance with the applicable Order, and you agree to pay each invoice no later than thirty (30) days from receipt. If no Order is in effect, Cubby may charge you the then-current rates for access to the API as posted on Cubby's website or otherwise communicated to you in writing.
b. Price Changes. Cubby reserves the right to adjust pricing for the API or any components thereof upon at least sixty (60) days' prior written notice to you. Revised pricing will take effect on the date specified in such notice (which will be no sooner than sixty (60) days after delivery of such notice). If you do not accept the revised pricing, you may terminate these Terms by providing written notice to Cubby prior to the effective date of the pricing change, and Cubby will not charge you the revised pricing during any applicable notice period. For fees governed by a fixed-term Order then in effect, revised pricing will not take effect until the expiration of such Order's then-current term unless both parties otherwise agree in writing.
c. No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to the API through the end of your current billing period.
d. Taxes. Other than net income taxes imposed on Cubby, you will bear all taxes, duties, and other governmental charges (collectively, "Taxes") resulting from these Terms. You will pay any additional Taxes as are necessary to ensure that the net amounts received by Cubby after all such Taxes are paid are equal to the amounts that Cubby would have been entitled to under these Terms as if the Taxes did not exist.
e. Third-Party Fees. Your use of the API may incur third-party fees, such as fees charged by your carrier, payment issuer, or other third party for data usage or fees charged by a third-party storage, internet, or data provider, and you may be subject to third-party terms. You will be responsible to pay all such fees and abide by all such terms.
6. Confidential Information. Each party (as a "Disclosing Party") may disclose to the other party (the "Receiving Party") certain non-public information that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure ("Confidential Information"). For the avoidance of doubt, the API and all related materials, documentation, and technical specifications are Cubby's Confidential Information. The Receiving Party agrees to: (a) hold the Disclosing Party's Confidential Information in strict confidence using at least the same degree of care it uses to protect its own confidential information, but no less than reasonable care; (b) not disclose such Confidential Information to any third party without the Disclosing Party's prior written consent, except to the Receiving Party's employees, contractors, or agents who have a need to know and are bound by confidentiality obligations at least as protective as those herein; and (c) use such Confidential Information solely for the purposes of performing its obligations or exercising its rights under these Terms. The obligations above do not apply to information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party prior to disclosure without restriction; (iii) is rightfully obtained from a third party without restriction; or (iv) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information. A Receiving Party may disclose Confidential Information to the extent required by applicable law or court order, provided it gives the Disclosing Party prompt prior written notice (to the extent legally permitted) and reasonably cooperates with the Disclosing Party's efforts to seek a protective order or other appropriate relief.
7. Data and Privacy. Cubby may collect certain information through the API or the Cubby Offering about you or your employees, contractors, or agents. By accessing, using, and providing information to or through the API or the Cubby Offering, you consent to all actions taken by Cubby with respect to your information in compliance with the then-current version of Cubby's privacy policy, available at https://www.cubbystorage.com/privacy-policy, or any successor URL that Cubby may provide from time to time.
8. Intellectual Property; Feedback. As between you and Cubby, (a) Cubby owns all right, title, and interest, including all intellectual property rights, in and to the API and the Cubby Offering and (b) you own all right, title, and interest, including all intellectual property rights, in and to your Applications, excluding Cubby's rights in the API and Cubby Offering. If you or your employees, contractors, or agents send or transmit any communications or materials to Cubby suggesting or recommending changes to the API or the Cubby Offering, including new features, functionality, comments, questions, or suggestions ("Feedback"), all such Feedback is and will be treated as non-confidential. You hereby grant to Cubby a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, and transferable license to use, reproduce, modify, create derivative works from, distribute, and otherwise exploit the Feedback for any purpose, without attribution or compensation to you or any third party. You represent that you have all rights necessary to grant the foregoing license and that the Feedback does not violate any third-party rights. Cubby is not required to use any Feedback.
9. Disclaimer of Warranties. THE API IS PROVIDED "AS IS" AND CUBBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CUBBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CUBBY MAKES NO WARRANTY OF ANY KIND THAT THE API, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Indemnification.
a. Indemnification by You. You agree to indemnify, defend, and hold harmless Cubby and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any third-party claims, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to: (i) your breach of these Terms; (ii) your negligence or willful misconduct in connection with your use of the API; or (iii) your Applications, including any end user's use thereof, except to the extent that such claims arise from Cubby's own negligence, willful misconduct, or breach of these Terms.
b. Indemnification by Cubby. Cubby agrees to indemnify, defend, and hold harmless you and your officers, directors, employees, agents, affiliates, successors, and assigns from and against any third-party claims, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) alleging that the API, as provided by Cubby and used in accordance with these Terms, infringes or misappropriates any third party's intellectual property rights. Cubby's obligations under this Section 10(b) do not apply to the extent any claim arises from: (i) your modification of the API; (ii) your combination of the API with third-party products or services not approved by Cubby; or (iii) your use of the API other than in accordance with these Terms.
c. Indemnification Procedure. The party seeking indemnification (the "Indemnified Party") will: (i) promptly notify the indemnifying party (the "Indemnifying Party") in writing of the claim; (ii) grant the Indemnifying Party sole control of the defense and settlement of the claim, provided that the Indemnifying Party may not settle any claim in a manner that imposes liability or obligations on the Indemnified Party without the Indemnified Party's prior written consent; and (iii) provide the Indemnifying Party with reasonable cooperation and assistance, at the Indemnifying Party's expense. The Indemnified Party may participate in the defense at its own cost with counsel of its choice.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CUBBY BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE API; OR (II) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL FEES ACTUALLY PAID BY YOU TO CUBBY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF CUBBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
12. Term and Termination.
a. Term. These Terms shall commence on the date you first accept them and continue in effect until terminated by either party as set forth herein ("Term").
b. Termination. (i) Termination for Convenience. Either party may terminate these Terms for any reason or no reason by providing the other party at least thirty (30) days' prior written notice. (ii) Termination for Cause. Either party may terminate these Terms upon written notice if the other party materially breaches these Terms and fails to cure such breach within thirty (30) days after receiving written notice specifying the breach in reasonable detail. (iii) Immediate Termination. Notwithstanding the foregoing, either party may immediately terminate these Terms upon written notice if the other party: (A) becomes insolvent or makes an assignment for the benefit of creditors; (B) becomes the subject of any voluntary or involuntary bankruptcy or insolvency proceeding; or (C) in Cubby's case, if you commit a material, uncurable breach, including unauthorized disclosure of the API, material violation of Section 2(b), or willful misconduct. Cubby may suspend (rather than terminate) your access to the API immediately upon notice pending resolution of any suspected breach.
c. Effect of Expiration or Termination. Upon expiration or termination for any reason, all licenses and rights granted to you will also terminate and you must cease using the API from all devices and systems you directly or indirectly control.
d. Survival. Any provisions that by their nature are intended to continue beyond the termination or expiration of these Terms will survive termination.
13. General.
a. Entire Agreement. These Terms, together with any applicable Order and any other documents incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. In the event of any inconsistency between these Terms and any applicable Order, the following order of precedence governs: (i) first, the applicable Order; (ii) second, these Terms.
b. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms (each, a "Notice") must be in writing and addressed to Cubby at the address set forth above and to you at the address set forth in the applicable Order or as otherwise provided by you to Cubby in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (return receipt requested, postage pre-paid). A Notice is effective only upon receipt by the receiving party.
c. Changes to These Terms. Cubby may update or modify these Terms at any time upon prior written notice to you as follows: (i) for minor or administrative changes (such as corrections of typographical errors, updates to contact information, or clarifications that do not materially alter the parties' rights or obligations), Cubby will provide at least fifteen (15) days' prior notice by posting a revised version on Cubby's website; and (ii) for material changes (including changes to the scope of the license granted under Section 2, indemnification obligations, limitation of liability, or governing law), Cubby will provide at least sixty (60) days' prior written notice. If you do not accept a material change, you may terminate these Terms by providing written notice to Cubby prior to the effective date of such change, and you will not be bound by the revised Terms during any such notice period. Where you have an Order in effect, no change to these Terms will reduce the scope of rights expressly granted to you under that Order during its then-current term without your prior written consent. Your continued access to or use of the API following the effective date of any modification constitutes your acceptance of such modification. No waiver of any provision of these Terms will be effective unless explicitly set forth in writing and signed by the waiving party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege will operate as a waiver, and no single or partial exercise will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
d. Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction. The parties shall negotiate in good faith to modify these Terms to affect the original intent of the parties as closely as possible in a mutually acceptable manner.
e. Governing Law. These Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts.
f. Assignment. You may not assign or transfer any of your rights or delegate any of your obligations under these Terms, whether voluntarily, involuntarily, by operation of law, or otherwise, without Cubby's prior written consent. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment or delegation will relieve you of your obligations hereunder. These Terms are binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
g. Export Regulation. The API may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the API to, or make the API accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the API available outside the US.
h. US Government Rights. The API is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. If you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the API as are granted to all other end users under license, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
i. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach of any obligations under Section 6 or, in your case, Section 2(b), would cause irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
j. Electronic Acceptance. These Terms may be accepted electronically, and electronic signatures shall be deemed valid and binding to the same extent as original signatures.
