BOX ENTERPRISE LICENSE AGREEMENT
Last Updated August 2, 2010
1. Definitions
"Account(s)"
means a storage account for use of the Box Solution. An Account may include individual Subaccounts as set forth in the Agreement. "Subaccount(s)" means an account for use of the Box Solution that is affiliated with an Account. Each Account or Subaccount provides access to the Box Solution.
Additional Fees
means any amounts chargeable in excess of the Fees and payable by the Enterprise Customer to the Licensor for the creation of additional accounts, extra storage space, additional upgrades from time to time.
"Administrator(s)"
means an individual person assigned by Enterprise Customer as a primary manager for the Management Console. Administrator has the authority to manage Accounts and Subaccounts as described below.
Agreement
is alternatively referred to as Enterprise License Agreement.
"Authorized User(s)"
means the individual persons that are identified by an Administrator or End User as an Account or Subaccount holder and are provided with access to an Account or Subaccount on the terms provided for herein.
"Box Solution"
means Licensor's hosted proprietary storage solution and any related desktop applications, providing online file storage and internet file sharing among collaborative users (see below description for further details).
Collaborator
is an individual who is given access to an Authorized User's folders or files. This access can be provided to another Authorized User, or to an Unlinked User.
"Confidential Information"
means any trade secrets or other nonpublic information of a party relating to the Licensed Product or the performance of this Agreement, whether of a technical, business or other nature (including, without limitation, information relating to a party's technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, prospects, Proprietary Rights or other affairs), that is disclosed to a party during the Term and that such party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party. Confidential Information does not include any information that (a) was known to the receiving party prior to receiving the same from the disclosing party; (b) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
"End User(s)"
means individual person assigned by Enterprise Customer as a primary manager for one or more individual Accounts. Each End User has the authority to manage Accounts and Subaccounts.
"Fee(s)"
means the Fees and the Additional Fees payable to Licensor specified by the Agreement.
Initial Term
has the meaning set forth in Section 7.1.
"Licensed Product(s)"
means Licensor's proprietary Box Solution and Management Console software and systems, together with any written or electronic documentation that is furnished by Licensor to Enterprise Customer.
"Management Console"
means Licensor's proprietary software for management of Accounts using the Box Solution (see explanation to follow).
"Proprietary Right"
means any patent, copyright, trademark, trade secret or other intellectual property or proprietary right.
Standard
means a uniform value applied to a product or quality of product as defined by Licensor.
Term
has the meaning set forth in Section 7.2.
Unlinked User
means an account that is not listed as an Authorized User under the Enterprise Administrator Console but is given access to the folders or files of an Authorized User.
2. Grant of License
2.1 License Grant. Subject to the restrictions and limitations set forth in this Agreement, including payment of all applicable Fees, Licensor hereby grants to Enterprise Customer a nonexclusive, nontransferable, limited license to (a) provide for Authorized Users to access and use the Box Solution; (b) configure the Management Console for access to and management of the Box Solution at the authorized locations identified by the Agreement; (c) appoint Administrators and End Users to manage access to and use of the Licensed Products; (d) provide for Authorized Users, Administrators and End Users to access and use the documentation provided in connection with the use of the Licensed Products; and (e) use the Licensed Products solely for Enterprise Customer's own business purposes (and not for lease, license or resale) during the Term. Specifications for the Box Solution and associated Accounts, and for the Management Console, are contained in Exhibit A attached hereto.
2.2 Delivery;
Availability. Unless otherwise specified by the Agreement, Licensor has delivered to Enterprise Customer, or will deliver to Enterprise Customer within five (5) business days after the Effective Date, a copy of (or the necessary passwords and protocols to access) the Licensed Products.
2.3 Establishment of Accounts. The following terms apply to:
(a) Accounts. Each Account and Subaccount will be associated with a unique storage solution that will facilitate the management and use of the Box Solution by the Authorized User, as described below.
(b) Administrator. Enterprise Customer will appoint an Administrator for the Management Console. The Administrator will have primary responsibility for the Management Console and the assignment of Accounts.
(c) End Users. Enterprise Customer will appoint one or more End Users for Accounts established through the Management Console. Each End User will have primary responsibility for the assignment and management of a specified group of Subaccounts.
(d) Acceptance of Terms. Each Account landing page will include (a) such user documentation, support information and materials as Licensor may provide from time to time; (b) access to and use of the Box Solution; and (c) a display of the Co-Brand Marks, as provided for herein.
(e) Passwords. Licensor will provide the necessary passwords or other unique identifiers to Administrator to access the Management Console. Administrator will provide the necessary passwords to permit Authorized Users to access and use the Box Solution. No Authorized User may share their password with any other person or permit any other person to log on as such Authorized User.
(f) Account Turnover. Administrator will be solely responsible for the assignment and management of Accounts. End Users will be solely responsible for the assignment and management of Subaccounts. In the event of termination or withdrawal of an Authorized User, such Account or Subaccount may be assigned to a new Authorized User, at no additional cost, on the terms and conditions set forth herein.
2.4 Account Co-Branding.
Each Account landing page (together with any other Account and Subaccount pages reasonably identified by Licensor) will include Licensor's name together with Enterprise Customer's trademark or logo (the "Co-Brand Mark(s)"). Enterprise Customer will provide an electronic version of its trademark or logo solely for Licensor's limited use as provided herein. Licensor shall cease all use of such logo and/or trademark up termination of this Agreement.
2.5 Option to Upgrade.
During the Term, Enterprise Customer may elect to upgrade the Licensed Products as follows:
(a) Additional Accounts. Enterprise Customer and/or Authorized Users may elect to add additional Accounts for Authorized Users in pre-defined sets as set forth in the Agreement, with each such Account having a Standard quantity of associated Subaccounts. For each set of Accounts added, Enterprise Customer will pay the Additional Fee at pricing and terms to be mutually agreed upon by the parties, prorated to the annual anniversary date of the Agreement.
(b) Additional Storage Capacity. Enterprise Customer may elect to add additional storage capacity for all Authorized Users of the Box Solution in Standard blocks specified by the Agreement. For each block of storage capacity added, Enterprise Customer will pay the Additional Fee at pricing and terms to be mutually agreed upon by the parties, prorated to the annual anniversary date of the Agreement.
(c) Additional Fees; Other Upgrades. Each upgrade order provided for herein will be subject to acceptance by Licensor. Licensor will invoice Enterprise Customer for all Additional Fees as provided for herein. Other upgrade packages may be purchased from time to time at pricing and terms to be mutually agreed upon by Licensor and Enterprise Customer.
(d) Revisions to Licensed Products. From time to time Licensor will provide free of charge a revision to its Licensed Product with additional functionality.
2.6 Desktop Software
(a) If you have licensed Box's software that allows you to use the Services on your desktop ("Desktop Software"), you understand and agree that any information, materials, data, files, programs, ideas and opinions provided or made available by you through the Desktop Software constitutes "User Content" under Section D. By licensing the Desktop Software, you grant Box and its contractors an irrevocable, royalty-free, worldwide license to access, use, modify, and delete User Content on your desktop through the Desktop Software for the sole purpose of providing to you the Services, including, without limitation, the synchronization of files between the Desktop Software and the Site. You acknowledge and agree that Box shall not assume or have any liability for any action or inaction by Box with respect to any such User Content, including, without limitation, the loss of such User Content. You may not use the Services, including the Desktop Software, in a manner that results in excessive bandwidth usage, as determined by a representative of Box. Box reserves the right, in its sole discretion, to determine whether and what action to take in response to any excess bandwidth usage, including, without limitation, limiting your bandwidth usage or charging you for such excess usage. If you have licensed the Desktop Software, Box reserves the right, in its sole discretion, to make unscheduled deployments of updates or enhancements to the Desktop Software. You acknowledge and understand that during such deployments, certain functionality of the Desktop Software may be unavailable and outages may occur.
3. Reserved Rights; Limitations
3.1 limitations.
this agreement, together with the attached exhibits, sets forth the entirety of rights to use, copy or otherwise deal with the licensed products by enterprise customer, each administrator, each end user, and each authorized user. without limitation, the agreement does not include the right to, and neither enterprise customer, nor any administrator, nor any end user, nor any authorized user will directly or indirectly (a) modify or create any derivative work based upon any licensed products or any portion thereof; (b) sell, lend, rent, lease, sublicense or otherwise transfer all or any portion of any of the licensed products to any third party or authorize any person or entity to do so; (c) reverse engineer, disassemble or decompile any of the licensed products or attempt to discover or recreate the source code to any licensed products; (d) remove, obscure or alter any licensor proprietary right notice related to the licensed products; or (e) engage in or permit any unauthorized use of the licensed products.
3.2 Government Entities.
If Enterprise Customer is a U.S. Government entity, Enterprise Customer acknowledges that the Licensed Products constitute software and documentation and are provided as "Commercial Items" as defined at 48 CFR 2.101 and are being licensed to U.S. government end users as commercial computer software with Restricted Rights in Computer Software.
3.3 Protection against Unauthorized Use.
Enterprise Customer acknowledges that the Licensed Products and any other materials furnished to Enterprise Customer by Licensor include valuable Proprietary Rights and Confidential Information of Licensor. Enterprise Customer will take appropriate steps for the protection of each of the foregoing. Without limitation, Enterprise Customer will use commercially reasonable efforts to prevent any unauthorized use, including any use, possession, knowledge, viewing, inspection, examination, copying, disclosure or other activity involving any Licensed Product that is not expressly authorized under this Agreement. Enterprise Customer will immediately notify Licensor in writing of any unauthorized use that comes to Enterprise Customer’s attention. In the event of any unauthorized use by any third party that obtained access to the Licensed Products directly or indirectly through Enterprise Customer or through any Authorized Users, Administrator or End Users, Enterprise Customer will take all steps reasonably necessary to terminate such unauthorized use. Enterprise Customer will provide Licensor such cooperation and assistance related to any such unauthorized use as Licensor may reasonably request.
3.4 Compliance with Laws.
Enterprise Customer will comply with all applicable laws and regulations in its use of the Licensed Products.
3.5 User Conduct.
Enterprise Customer agrees not to use the Licensed Products to: (a) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) advertise or promote a commercial product or service that is not available through Licensor; (c) store or transmit any file containing: (i) unlawful, defamatory, threatening, pornographic, abusive, libelous, or otherwise objectionable material of any kind or nature; (ii) any material that encourages conduct that could constitute a criminal offense; (iii) any code or material that violates the intellectual property rights or rights to publicity or privacy of others; (d) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs, or cancelbots; (e) interfere with or disrupt servers or networks connected to the Licensed Products or violate the regulations, policies or procedures of such networks; (f) access or attempt access to the Licensor’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means; (g) harass or interfere with another user's full use and enjoyment of the Licensed Products; or (h) cause, in Licensor's sole discretion, inordinate burden on Licensor's system resources (i.e. bandwidth). If the Accounts, Additional Accounts, and Additional Storage Capacity are not sufficient for the needs of Enterprise Customer, Enterprise Customer may need to arrange a custom file hosting plan.
4. Fees; Payment
4.1 Fees;
Payment Terms. Enterprise Customer will pay Licensor any Fees as mutually agreed. Enterprise Customer will pay Licensor any Additional Fees for upgrades to the Licensed Products that may be elected by Enterprise Customer from time to time, at pricing and terms to be mutually agreed upon by the parties. Unless otherwise specified by the Agreement, Enterprise Customer will pay all Fees within thirty (30) days of the date of the applicable invoice. In the event of any disputed invoiced Fees, Enterprise Customer must provide written notice of the disputed amount within thirty (30) days of invoice receipt and must timely pay any undisputed portion of such invoice. The parties agree to cooperate in good faith to resolve any disputed invoice or portion thereof within thirty (30) days of notice of dispute. Box reserves the right to charge Enterprise Customer at the rates set forth by the Agreement for additional Authorized Users and Unlinked Accounts that are established for persons who use the Enterprise Customer’s primary email domain.
4.2 Taxes.
The Fees payable to Licensor under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority. Enterprise Customer is responsible for paying all taxes arising hereunder other than taxes imposed on Licensor's income. Enterprise Customer will pay or reimburse Licensor for all such amounts upon demand or provide certificates or other evidence of exemption.
4.3 Audit Rights.
Enterprise Customer will, from time to time after reasonable prior notice from Licensor, provide Licensor reasonable access to Enterprise Customer's authorized locations, records and personnel so that Licensor may audit and confirm that Enterprise Customer is in compliance with this Agreement. In the event that any such audit reveals any use or access that is not compliance with this Agreement, Enterprise Customer will promptly comply with this Agreement and make any additional payment as contemplated herein. If the amount of the underpayment is 5% or greater than the amount owing for the audited period or if any material breach of this Agreement is revealed, Enterprise Customer will promptly reimburse Licensor for its reasonable costs of conducting such audit.
5. Limited Warranty; Remedies
5.1 Mutual Warranties.
Each party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
5.2 Software Warranty; Remedies.
Licensor represents and warrants that Licensor owns or otherwise has sufficient rights to the Licensed Products to grant the rights and licenses granted herein. Licensor represents and warrants to Enterprise Customer that the Licensed Products will perform in all material respects in accordance with the applicable specifications and documentation provided from time to time by Licensor. In the event that the Licensed Products fail to conform to the foregoing warranty and Enterprise Customer notifies Licensor of the non-conformity, Licensor will at its option either (a) repair or replace the non-conforming Licensed Product or (b) terminate this Agreement and refund to Enterprise Customer any pre-paid Fees paid by Enterprise Customer. The warranty and remedies set forth herein will not apply to the extent (i) the Licensed Products are not properly used or maintained due to some action, failure or limitation caused by Enterprise Customer; (ii) the Licensed Products are subjected to accident, neglect, misuse, failure of electric power, faulty environmental controls or transportation or causes other than ordinary use; or (iii) Enterprise Customer, its Administrators, End Users or Authorized Users fails to comply with the terms of this Agreement. This warranty represents Enterprise Customer's sole remedy in the event of any allegation that the Licensed Products are non-conforming or do not otherwise meet Enterprise Customer's expectations, the terms of this Agreement or any applicable documentation.
5.3 Intellectual Property Warranty.
(a) By Licensor. Licensor represents and warrants to Enterprise Customer that (i) the Licensor trademarks provided for use as Co-Brand Marks do not infringe upon any third party trademark interest, and (ii) that the Licensed Product does not infringe the intellectual property rights of a third party.
(b) By Enterprise Customer. Enterprise Customer represents and warrants to Licensor that the Enterprise Customer trademarks provided for use as Co-Brand Marks do not infringe upon any third party trademark interest.
(c) Indemnity; Procedure. In the event of a third party claim alleging an infringement of the Co-Brand Mark of either party, the party providing such Co-Brand Mark agrees to indemnify and defend the other party; provided, that (a) the indemnified party gives the indemnifying party prompt written notice of the claim; (b) the indemnifying party has full and complete control over the defense and settlement of the claim; and (c) the indemnified party provides such assistance in connection with the defense and settlement of the claim as the indemnifying party may reasonably request. In addition, the indemnifying party may, at their option, elect to modify trademark or logo to make it noninfringing or provide an alternative trademark for use in connection with the Licensed Products, without breach or liability to the indemnified party. In the event of a third party claim against Enterprise Customer alleging that the Licensed Product infringes the intellectual property rights of the third party, Licensor agrees to indemnify and defend Enterprise Customer against such claims; provided that (a) Enterprise Customer gives Licensor prompt written notice of the claim; (b) Licensor has full and complete control over the defense and settlement of the claim (provided, that Licensor shall not settle any claim without Enterprise Customer’s prior written permission in the event the settlement would expose Enterprise Customer to any liability, create any potentially adverse precedent that could negatively impact Enterprise Customer’s operations, or fail to unconditionally release Enterprise Customer from all liability); and (c) Enterprise Customer provides such assistance in connection with the defense and settlement of the claim as the Licensor may reasonably request.
5.4 Exclusions.
Licensor does not warrant that the Licensed Products or any other items furnished under this Agreement are free from bugs, errors, defects or deficiencies. If Enterprise Customer's use of the Licensed Products is, or in Licensor's reasonable opinion is likely to become, enjoined or materially diminished as a result of a claim of infringement of any Proprietary Right of any third party, then Licensor, at its option, may (a) procure the continuing right for Enterprise Customer to use such Licensed Product; (b) replace or modify the Licensed Product in a functionally equivalent manner so that it no longer infringes; or if, despite Licensor's commercially reasonable efforts, Licensor is unable to do so either (a) or (b), Licensor may (c) terminate this Agreement and refund to Enterprise Customer an amount equal to the pro rata Fee remaining for the Term.
5.5 Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE LICENSED PRODUCTS OR ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT, WITHOUT LIMITATION, (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
5.6 Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) and (b) EACH PARTY'S RESPECTIVE TOTAL LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) WITH REGARD TO THE LICENSED PRODUCTS OR USE THEREOF, OR ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT, WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY ENTERPRISE CUSTOMER TO LICENSOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
6. Proprietary Rights; Confidentiality
6.1 Licensed Products.
The Licensed Products are licensed, not sold, to Enterprise Customer and Licensor reserves all rights in the Licensed Products not expressly granted to Enterprise Customer hereunder, including all Proprietary Rights in the same. No title to or ownership of the any Proprietary Rights of Licensor are transferred or, except as specifically set forth herein, licensed to Enterprise Customer under this Agreement.
6.2 Confidential Information.
Either party may disclose Confidential Information to the other party during the Term of this Agreement. In such event, unless otherwise specifically authorized by the disclosing party, the receiving party will (a) use such Confidential Information solely for the purposes for which it is provided; (b) not disclose such Confidential Information to any third party; and (c) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature. The foregoing will not apply to any use or disclosure that is (i) required by applicable law, legal process or governmental authority, provided that the receiving party uses reasonable efforts to notify the disclosing party of the required disclosure and cooperates in obtaining a protective order to limit such disclosure; or (ii) made with the specific prior written consent of the disclosing party.
6.3 Press Release; References.
Neither party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other party. Notwithstanding the foregoing, Licensor may, during the Term hereof, identify Enterprise Customer as a customer or user of the Licensed Products and display Enterprise Customer logo on the Box website and other marketing materials.
6.4 Account Information and Data.
Licensor does not own any data, information or material that Enterprise Customer stores in its Account or Subaccounts, and takes no responsibility whatsoever for the contents of Enterprise Customer’s Account or Subaccounts. Enterprise Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all data stored in its Account and Subaccounts. All data of Enterprise Customer shall be considered Confidential Information subject to the terms of this Agreement. Licensor may access Enterprise Customer’s Accounts or Subaccounts, solely to respond to service or technical problems or at Enterprise Customer’s request. Licensor shall not be responsible or liable for Enterprise Customer’s deletion, correction, destruction, damage, loss of, or failure to store, any data.
6.5 Privacy Statement.
See Exhibit C of this Agreement.
7. Term and Termination
7.1 Initial Term.
The "Initial Term" of this Agreement will commence on the Effective Date and will continue for the period of one year thereafter.
7.2 Renewal.
Unless otherwise terminated as provided for herein, this Agreement will automatically renew following the Initial Term for consecutive one-year periods. The Initial Term and any subsequent renewal terms are collectively referred to herein as the "Term."
7.3 Termination.
Either party may terminate this Agreement by providing notice of nonrenewal not less than thirty (30) days prior to the end of the then-current Term.
7.4 Notice of Material Breach or Default.
If either party commits a material breach or default in the performance of any of such party's obligations under this Agreement, the other party may give the defaulting party written notice of breach or default, including a statement of the facts relating to the material breach or default. If the material breach or default is not cured within thirty (30) days after the defaulting party's receipt of such notice (or such later date as may be specified in such notice), the non-defaulting party, at their option, may elect to terminate this Agreement on written notice at any time thereafter while the breach or default remains uncured. Without limitation, any failure by Enterprise Customer to timely pay Fees owing hereunder will constitute a material breach of this Agreement.
7.5 Post-Termination Obligations.
Upon termination of this Agreement for any reason, (a) any and all liabilities accrued prior to the effective date of the termination will survive; and (b) Enterprise Customer will, within five (5) days of such termination, destroy all copies of the Licensed Products and the Confidential Information of Licensor, including any documentation in written or electronic form and any software stored on servers or other systems; and, (c) if requested by Licensor, Enterprise Customer will promptly provide to Licensor with a written certification signed by an authorized representative certifying that all copies of such the Licensed Product and Confidential Information of Licensor have been destroyed. If termination is other than by Enterprise Customer for cause, Enterprise Customer will pay Licensor any Fee or other amounts owing. If termination is by Enterprise Customer for cause, Licensor will, with respect to any prepaid Fee, refund to Enterprise Customer an amount equal to the pro rata Fee remaining for the Term.
7.6 Survival.
Upon any termination of the term of this Agreement hereunder, the parties' respective rights and obligations under Sections 3.1, 3.3, 4.2, 4.3, 5, 6, 7.5 and 8 will survive.
8. Miscellaneous
8.1 Support Services.
Licensor will provide support services to assist Enterprise Customer in the set-up, configuration and use of the Licensed Products. Support services do not include (a) physical installation or removal of the Licensed Products; (b) visits to Enterprise Customer's site; (c) any electrical, mechanical or other work with hardware, accessories or other devices associated with the use of the Licensed Products; (d) any work with any third party equipment or software; or (e) any professional services associated with the Licensed Products, including without limitation any custom development, data modeling, training and knowledge transfer. Upon Licensor's request, Enterprise Customer will provide Licensor remote access to Enterprise Customer's computer systems as reasonably required for Licensor to perform any support services and other obligations provided for under this Agreement, such as by VPN connection or other means.
8.2 Contractual Relationship.
The parties are entering into this Agreement as independent contracting parties. Neither party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other party. This Agreement will not be construed to create an association, joint venture or partnership between the parties or to impose any partnership liability upon any party.
8.3 Notices.
Any notice or other communication under this Agreement given by any party to any other party will be in writing and will be effective upon delivery when: (a) delivered in person; or (b) sent via email for such party with a confirmation telephone call to the number specified below, in each case specifically referencing a notice given under this Agreement; provided, however, that a copy of any notice asserting a material breach or default or terminating this Agreement will also be delivered in writing by overnight courier.
8.4 Nonwaiver.
The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
8.5 Assignment.
The performance of this Agreement is a personal obligation of each party. Neither party will directly, indirectly, by operation or law or otherwise assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of the other; provided that no consent shall be required in the event of a merger or sale of substantially all of the assets of a party which merger or sale does not materially increase the burdens imposed on the other party hereunder and the successor or assignee is able and willing to fulfill the obligations of this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
8.6 Integration.
This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between the parties with regard to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both parties hereto.
8.7 Severability.
If any provisions of this Agreement shall be conclusively determined by a court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby but shall remain in full force and effect.
8.8 Applicable Law; Dispute Resolution.
This Agreement will be construed and enforced in all respects in accordance with the laws of the state of California, without reference to its choice of law rules. In the event of any dispute, controversy or claim between the parties hereto arising out of or relating to this Agreement, the parties shall first seek to resolve the dispute in good faith through informal discussions. In the event any dispute, controversy or claim cannot be resolved informally, the parties agree that any dispute shall be settled by binding arbitration to be held before a single arbitrator in Santa Clara County, California under the rules in effect of the American Arbitration Association, and judgment upon the award may be entered in any court with competent jurisdiction.
8.9 Force Majeure.
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence; provided, that the affected party (a) provides the other party prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
8.10 Good Faith.
The parties agree to act in good faith with respect to each of this Agreement and any dispute that may arise related hereto.
8.11 Counterparts; Signature by Facsimile.
This Agreement may be signed in counterparts together which will constitute the original Agreement. A signature delivered by facsimile, pdf or other electronic reproduction will be considered an original for purposes of this Agreement.
EXHIBIT A
SPECIFICATIONS FOR THE BOX SOLUTION AND ASSOCIATED ACCOUNTS
Box will provide Enterprise Customer with dedicated 24/7 access to storage on Box servers connected to the Internet, in the amount specified by the Agreement, subject to the terms and conditions of the Enterprise License Agreement. Enterprise Customer will subdivide this storage among Accounts, creating up to the total number specified by the Agreement, and assign them to End Users.
End Users may assign sub-account privileges to up to the Standard quantity of individual Authorized Users, allowing them to access specific files and folders with their own unique login and password, subject to approval by Administrator.
End Users will have access to all features and privileges of other Standard "Business" users of Licensor's Box service as of the Effective Date, except (i) where such features and privileges are assigned under this Agreement to Administrator, in which event the terms of this Agreement will control; or (ii) where such terms specifically conflict with the Agreement, in which case the Agreement supersedes those features/privileges.
Authorized Users may upload and download files of any type, subject to the terms and conditions of the Agreement.
Authorized Users may access their stored files from any computer or internet-enabled device with a Web browser, without the need to install software.
Authorized Users may share specific files or folders with others via a public URL
SPECIFICATIONS FOR THE MANAGEMENT CONSOLE
Box will provide Administrator with a login and password (which may be changed by Administrator after initial login) for the Management Console. Administrator can access the Management Console from any computer with a Web browser.
Administrator will provide Box with an initial list of users’ login and password information, for whom Box will create Accounts
Thereafter, Administrator will use the Management Console to create or delete Accounts and corresponding passwords, up to the number of Accounts specified by the Agreement. Once an End User or Authorized User Account is established, he/she may change their assigned password. Should an Authorized User forget his/her password, Administrator may reset it from the Management Console. Accounts for Authorized Users may only be created through the End User Account, however.
Administrator can establish an upper limit on allowed usable storage per Account, on a case by case basis.
Administrator can log into any of the Accounts at any time by clicking on a “View Account” button in the console.
Administrator can monitor activity for any of the Accounts individually or in the aggregate, including storage currently in use, bandwidth used since the first day of current month, most recent login activity, sub-users currently in use, date of last upload or download and action taken at that time.
EXHIBIT B
This section left blank intentionally.
EXHIBIT C
BOX PRIVACY POLICY
The most current version of Box's Privacy Policy can be found at the following web address: http://box.net/static/html/privacy.html.
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