BOX SERVICE AGREEMENT
(LAST REVISED: March 7, 2013)
This Box Service Agreement (this “Agreement”) contains the terms and conditions that govern the access and use of the Box Service (as defined below) and is entered into by and between Box, Inc. (“Box”) and the customer (“Customer”) identified in the corresponding Box Service order (“Order”) referencing this Agreement. Box and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.”
This Agreement is effective and Customer agrees to be bound by its terms when Customer either first accesses the Box Service or upon the first Order Effective Date (defined below), whichever occurs first (“Agreement Effective Date”). If the person entering into this Agreement is doing so on behalf of a legal entity, such person represents that it has the legal authority to bind such legal entity to this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Section 1. Definitions
When used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meaning:
“Account(s)” means all User content storage account(s) created by the User for itself or on behalf of Customer (including accounts created by or for its Administrators, Managed Users, or External Users) within the Box Service.
“Administrator(s)” means a person designated by Customer to have an Account with the authority to utilize the Administrative Console to create and manage Accounts associated with Customer.
“Administrative Console” means the functionality for managing User access, security and other administrative functionality for Accounts associated with the Box Service provided to Customer.
“API” means the application programming interface used by Customer to access certain enterprise functionality provided by the Box Service.
“Bandwidth Limit” means 1 terabyte (1TB) per User per month unless otherwise set forth in the applicable Order.
“Box Service” means the hosted storage solution provided by Box that permits User access to online content storage, sharing and processing, including, individually and collectively, the API, the Box Software and any User Guides.
“Box Software” means software that allows a User to use certain functionality in connection with certain features of the Box Service that is provided by Box either for installation on a Customer’s or a User’s device or that is otherwise accessed by Users from the Customer’s or User’s software, hardware or other devices.
“Content” means electronic files, materials, data, text, audio, video, images or other content transmitted, stored, retrieved or processed by Customer and Users using the Box Service.
“Customer Domain” means all email and/or web addresses registered, owned or controlled by Customer, its affiliates and/or agents and used by one or more Users to register an Account.
“External User(s)” means a person who is permitted to access, store, retrieve or manage Content with a Managed User of the Customer, and is not in a Customer Domain.
“Fee(s)” means the amounts payable to Box as specified in the applicable Order.
"Malware" means any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros.
“Managed User(s)” means a person who is permitted to access, store, retrieve or manage Content, and is associated with a Customer Domain.
“Order” means a Box quote order or other ordering document agreed to in writing by the Parties under this Agreement or by Customer and a Box authorized reseller, which is accepted and provisioned by Box as set forth in Section 2.2.
“Privacy Policy” means the then-current Box privacy policy found at https://www.box.com/ legal_text/privacy_policy/ which identifies how Box collects, uses and discloses, on a limited basis, information of Users excluding Content.
“Premier Support” has the meaning set forth in Exhibit B.
“Premier Support Credit” means the Premier Support credits that Customer may be entitled to pursuant to Exhibit B, if that Customer has subscribed to and paid for Premier Support as specified in the applicable Order.
“Service Level Commitments” means the service level commitments set forth in Exhibit B that Customer subscribed to and paid for as specified in the applicable Order.
“Site” means any websites owned or operated by Box, including those located at www.box.com and www.box.net.
“SLC Credit” has the meaning set forth in Exhibit B.
“Subscription Period” means the time commencing on the Order Effective Date and continuing for the period specified in the applicable Order, or if no such period is specified, a 1 year period.
“Term” has the meaning set forth in Section 11.
“User(s)” means, collectively, any person who is permitted to access, store, retrieve or manage Content in any Account, including any Administrator, Managed User or External User.
“User Guide” means Box’s then current published written or electronic documentation specifying the functionality of the Box Service and made generally available by Box to its customers or its users.
Section 2. Access and Use of the Box Service
2.1 Access Grant. Subject to Customer’s continued compliance with the obligations of this Agreement, including the timely payment of all applicable Fees, Box hereby grants Customer the non-exclusive right during the Term to: (a) allow Users designated as Administrators to access and use the Administrative Console to create and administer Accounts registered to Customer; (b) allow Users to store, retrieve, and share Content through the Box Service in accordance with the User Guide solely through any Account registered to Customer; and (c) make a reasonable number of copies of the API, the Box Software and any User Guide Box directly makes available to Customer, if any, and distribute and use such copies solely for Customer’s own internal business purposes to support the use of the Box Service by Users.
2.2 Orders; Delivery. Customer may from time to time place Orders for the Box Service. Orders will be deemed accepted by Box upon the earlier of when the requested access to the Box Service has been provisioned by Box or when Box otherwise informs Customer of Box’s acceptance of such Order, whichever is earlier (“Order Effective Date”). Unless otherwise specified in an Order and subject to Customer’s payment of Fees, Box will deliver to Customer, within 5 business days after the Order Effective Date, a copy of the passwords and usernames for the Administrator(s) to manage Customer’s use of the Box Service under this Agreement.
2.3 Service Plan Upgrade Option. During the Term, Box may from time to time provide Customer with the right to obtain access for additional Users, or features and functionality available in the next level of the Box Service plan i.e. from Box Business to Box Enterprise (“Box Service Plan Upgrade”) at pricing and terms to be mutually agreed upon by the Parties. Fees for such Box Service Plan Upgrade will be invoiced to Customer, prorated on an annual basis to be coterminous with the applicable Order.
2.4 Restrictions on Use of the Box Service. The Box Service is subject to the Bandwidth Limit specified herein as well as storage capacity limits, if any, as may be additionally specified in an Order. Without limiting any other remedies under this Agreement if Customer exceeds the applicable Bandwidth Limit or storage capacity limit, reasonable restrictions will be placed on Customer’s Account(s) until any such excess usage is adequately mitigated or eliminated by Customer. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any User or otherwise used through its Account. Customer agrees not to use or permit the use of the Box Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the Box Service or interfere in any way with the use or enjoyment of the Box Service by others; (d) to introduce any Malware or other malicious activity in Customer’s or an User’s use of the Box Service; (e) in violation of any U.S. denied party-list, embargoed country restriction, export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offense.
2.5 Suspension of Service. Box may at any time suspend any User’s use of the Box Service and/or remove or disable any Content as to which Box reasonably and in good faith believes is in violation of this Agreement. Box agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Box Service or any third party, in which case Box will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.
Section 3. Non-Box Applications and Services. Box makes third-party applications, which are separately licensed by their provider, available to Customer for use in connection with the Box Service (“Third-party Products”). Box makes no warranties of any kind and assumes no liability whatsoever for Customer’s use of such Third-party Products.
Section 4. Content Security; Data Privacy
4.1 Security. Without limiting Section 7.4 (Disclaimer of Warranties) or Customer’s obligations under Section 5 or this Section 4, Box will implement commercially reasonable administrative, physical, and technical measures including disaster recovery procedures designed to secure the Content against accidental or unlawful loss, access or disclosure. Box will maintain, at a minimum, a SSAE 16 report compliance audit documentation or its equivalent during the Term and will provide a copy to Customer once per year during the Term upon prior written request.
4.2 Content and Data in the United States. The Box Service is provided from the United States. By using and accessing the Box Service, Customer agrees and acknowledges that the Content and any other personal information will be stored and processed in the United States. Box reserves the right to store and process information outside of the United States, and will use commercially reasonable efforts to provide Customer with at least 30 days notice of any such changes in the processing location. The Privacy Policy identifies how Box collects, uses and discloses, on a limited basis, solely personal information of Users.
4.3 EU Data Protection and Onward Transfer. Box is, and will remain, a certified member of the EU and Swiss Safe Harbor Frameworks, operated by the U.S. Department of Commerce and enforced by the Federal Trade Commission (“Safe Harbor”), and as such adheres to the EU and Swiss Safe Harbor Principles with respect to the transfer, processing and security of any data transferred from the European Economic Area or Switzerland. The parties acknowledge that for Content, and for purposes of the Safe Harbor, Customer is the data controller and Box is a data processor. Box will only process Content as directed by Customer, or as described or contemplated by this Agreement.
Section 5. Customer Responsibilities
5.1 Establishment of Accounts. Customer will comply with the procedures set forth in Exhibit A in establishing and maintaining Accounts. Customer will promptly appoint an Administrator for the Administrative Console. Box will initially provide the necessary passwords or other unique identifiers to the Administrator to access the Administrative Console. As between the Administrator and Box, the Administrator will be solely responsible for the assignment and management of Accounts.
5.2 Managed Users. Customer will have the right to appoint a Managed User for each Account established through the Administrative Console. As between the Administrator and Box, the Administrator will be responsible for providing the necessary passwords to permit Managed Users to access and use the Box Service. Customer will ensure that all Managed Users do not share any password with any other person or permit any other person to log on as such Managed User. In the event of termination or withdrawal of a Managed User, Customer may reassign the Account to a new Managed User, at no additional cost, subject to the terms of this Agreement.
5.3 Content. Customer will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with the this Agreement and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content; (d) promptly handle and resolve any notices sent to Customer by any person claiming that any Content violates any person’s rights, including take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (e) maintain appropriate security, and protection of the devices accessing the Box Service. Box has no liability to Customer or any third party for any reason as a result of (i) any unauthorized disclosure or access to Customer’s Account or Content as a result of Customer’s or a User’s misuse of the Box Service or loss or theft of any User password or username; or (ii) any deletion, destruction, damage or loss of Content caused by or at the direction of Customer or a User.
5.4 Notification of Unauthorized Use. Customer will immediately notify Box in writing of any unauthorized use of any Account, Content or the Box Service that comes to Customer’s attention. In the event of any such unauthorized use by any third party that obtained access to the Box Service directly or indirectly through Customer or through any User, Customer will take all steps necessary to terminate such unauthorized use and will provide Box with such cooperation and assistance related to any such unauthorized use as Box may reasonably request.
Section 6. Support and Service Level Commitments.
6.1 Support Services. Subject to payment of the corresponding Fees, Box will provide the support services (“Support Services”) specified in the applicable Order and as further described in Exhibit B (Service Level Commitments and Support Services). Upon Box’s request, Customer will provide Box with remote access to Customer’s computer systems as reasonably required for Box solely to perform any Support Services and other obligations provided for under this Agreement, such as by VPN connection or other means.
6.2 Service Level Commitments. Box will use commercially reasonable efforts to meet the Service Level Commitments for the Box Service as specified on Exhibit B subject to the level subscribed to and paid for by the Customer under the applicable Order. The sole and exclusive remedy for any breach of any Service Level Commitment is set forth in Exhibit B, provided however that Customer may terminate this Agreement subject to the notice and cure provisions of Section 11.3 (Termination for Cause) in which case Customer will be entitled to a pro-rated refund of the Premier Support Fees paid to Box for the remainder of the corresponding Subscription Period.
7. Warranty and Disclaimer
7.1 Box Service Warranty. Box warrants that while the corresponding paid-for Subscription Period is in effect, that the Box Service will perform substantially in accordance with the functions specified in the User Guide under normal use and circumstances. Subject to the notice and cure provisions of Section 11.3 (Termination for Cause), Customer’s sole and exclusive remedy and Box’s entire liability for a breach of this warranty shall be for Box to use commercially reasonable efforts to modify the Service to substantially achieve in all respects the functionality described in the User Guide and if Box is unable to restore such functionality, Customer shall be entitled to terminate the applicable Order and receive a pro-rated refund of the subscription fees paid to Box for the corresponding remaining portion of the Subscription Period. The warranties set forth herein are made to and for the benefit of Customer only. SLC Credits due to Customer, if any, will be provided pursuant to the terms of Exhibit B.
7.2 Mutual Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly authorized, 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.
7.3 Customer Warranties. Customer represents and warrants to Box that (a) Customer or its licensors own all right, title and interest in and to the Content; (b) Customer has all rights in the Content to grant the rights to Box contemplated by this Agreement; and (c) none of the Content will violate the terms of Section 2.4 (Restriction on the use of the Box Service).
7.4 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY (AND EACH PARTY SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE BOX SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCH- ANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
Section 8. Proprietary Rights
8.1 Content Ownership by Customer. As between Customer and Box, Customer or its licensors own all right, title and interest in and to the Content. Customer hereby grants Box the right to transmit, use and disclose the Content solely to provide the Box Service to Customer or any User or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Box believes in the good faith requires Box to disclose information to assist in preventing the death or serious bodily injury of any person.
8.2 Ownership of Box Service by Box. As between Box and Customer, Box or its licensors own and reserve all right, title and interest in and to the Box marks, the Box Service and all hardware, software and other items used to provide the Box Service, other than the access rights explicitly granted to Customer in Section 2.1. No title to or ownership of any proprietary rights related to the Box Service is transferred to Customer or any End User pursuant to this Agreement or any transaction contemplated by this Agreement. All rights not explicitly granted to Customer are reserved by Box. Box reserves the right, in its sole discretion, to change and/or require you to change your Box Service user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Box Service. In the event that Customer makes suggestions, improvements or modifications to Box regarding any features, functionality or performance that Box adopts for any of its products including the Box Service, such features, functionality or performance shall be deemed to be automatically assigned under this Agreement to, and shall become the sole and exclusive property of Box.
Section 9. Government Users. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Box Service constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government User as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
Section 10. Fees and Payment
10.1 Fees. Customer agrees to pay all Fees set forth on all Orders under this Agreement. In the event that the Parties mutually agree in writing to any extension of a Subscription Period or the provisioning of a Box Service Plan Upgrade, Customer will pay Box the then-current list price for such extension or Box Service Plan Upgrade, unless otherwise set forth in the applicable Order. Subject to any credits or refunds applicable to any Service Level Commitments hereunder, if any, all Fees are nonrefundable. All Fees and other amounts specified in this Agreement are payable in United States Dollars. After the Initial Term, Box, may, increase the Fees it charges for the Box Service. Any increase in the Fees will take effect at the beginning of Customer’s next Subscription Period, or at such later date as may be specified in the applicable Order.
10.2 Invoicing and Payment Terms. Unless otherwise specified in the applicable Order, Customer will pay all Fees within 30 days of the date of the applicable invoice issued by Box. In the event Customer disputes any invoiced Fees, Customer will provide written notice of the disputed amount within 30 days after receiving such invoice and timely pay any undisputed portion of such invoice. The Parties will cooperate in good faith to resolve any disputed invoice or portion thereof within 30 days of notice of dispute. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Customer will promptly reimburse Box for any cost or expense incurred in connection with any collection efforts undertaken by Box in connection with any past due amount owed under this Agreement. At Box’s discretion, past due amounts may accrue a late fee equal to the lesser of 1.5% per month, or the maximum amount allowed by applicable law.
10.3 Taxes. Fees are exclusive of Taxes and, Customer will promptly pay or reimburse Box for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use and other taxes (other than taxes on Box’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority. Customer hereby confirms that Box can rely on the ship-to name and address set forth in the Order(s) Customer places directly with Box as being the place of supply for sales tax purposes. If Customer is legally entitled to an exemption from the payment of any Taxes, Customer will promptly provide Box with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. Unless otherwise prohibited by law, Box will apply the benefits of any requested tax exemption to charges occurring under Customer’s Account after the date Box receives and reasonably processes such tax exemption certificates.
10.4 Purchases Through Authorized Box Resellers. The terms of this Agreement related to pricing, payment or Taxes do not apply to any Customer Orders placed through an authorized Box reseller (“Box Reseller”) where Customer pays the applicable fees directly to such Box Reseller. Customer will establish such terms independently with the Box Reseller. Additionally, the provisions related to SLC Credits and Support Services may not apply under Box Reseller Orders.
Section 11. Term and Termination
11.1 Term of Agreement. This Agreement will commence on the Agreement Effective Date and will remain in effect for the duration of the Subscription Period specified in the last remaining Order(s) (“Term”) or is otherwise terminated as provided for in Section 11.3 herein below. Each Order will be in effect for a period of 1 year from the Order Effective Date unless otherwise agreed in writing by the Parties or unless otherwise terminated in accordance with this Agreement.
11.2 Order Renewal. Unless the Agreement is terminated as provided for herein, the Order(s) under this Agreement will automatically renew for 1 year periods subject to payment of the corresponding Fees with either Party having the ability to provide the other Party with its intent not to renew the applicable Order(s) with at least 30 days written notice prior to the end of the then-current Subscription Period of such Order(s). For the avoidance of doubt, any discounts offered by Box to Customer during a prior Subscription Period will not apply during any new or renewal Subscription Period unless specifically agreed-to in writing by the Parties.
11.3 Termination for Cause. Either Party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured after the expiration of such period; or (b) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Any failure by Customer to timely pay Fees owing hereunder or to comply with Sections 2, 4.1 or 5 will constitute a material breach of this Agreement.
11.4 Post-Termination Obligations. Upon termination or expiration of this Agreement for any reason, (a) Customer will have no further rights to the Box Service hereunder; (b) Customer will, within 5 days of such termination or expiration, destroy all copies of the API, the Box Software, the User Guide and Confidential Information of Box, including any copies of the User Guide in written or electronic form and any Box Software stored on Customer’s servers or other systems; and (c) if requested by Box, Customer will promptly provide to Box a written certification signed by an authorized representative certifying that all copies of the API, the Box Software, the User Guide and Confidential Information of Box have been destroyed. For 30 days following the expiration of the Termination of the Agreement and/or applicable Subscription Period, and subject to Customer’s prior written request, Box will grant Customer limited access to the Box Service solely for purposes of Customer’s retrieval of the Content. After such 30 day period, Box will have no obligation to maintain the Content and will delete the Content unless legally prohibited.
11.5 Surviving Provisions. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1, 2.4, 5.3, 7.4, 8, 10, 11.4, 12, 13, 14 and 15.
Section 12. Indemnification
12.1 Indemnification by Box. Box will defend Customer against any third party claim that the Box Service infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer”), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Box will have no liability to Customer under this Section 12.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the Box Service by Customer; (b) use of the Box Service in combination with any other software or equipment not supported in the User Guide; or (c) any modification or alteration of the Box Service by anyone other than Box without the written approval of Box. In the event of a Claim Against Customer pursuant to this Section 12.1, Box may (at Box’s option and expense): (i) obtain for Customer the right to continue using the Box Service; (ii) modify the Box Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Box in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to Box for the corresponding unused period of the Box Service.
12.2 Indemnification by Customer. Customer will defend Box against any third party claim: (i) that any Content, or Customer’s use of the Box Service in breach of this Agreement, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such infringement or misappropriation is not the result of Box’s actions); or (ii) relating to any Content or Customer’s use of the Box Service in violation of Section 2.4 (Restrictions on the Use of the Box Service). Customer will, with respect to any claim Against Box, indemnify Box for the resulting costs and damages finally awarded against Box to such third party by a court of competent jurisdiction or agreed to in settlement.
12.3 Indemnification Process. As a condition of receiving an indemnification under this Agreement, the party seeking indemnification hereunder (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim); and (iii) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
12.4 Exclusive Remedy. This Section 12 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other party for any type of claim under this Section 12. Notwithstanding the foregoing, Box will have the right to terminate Customer's right to use the Box Service pursuant to Section 11.3.
Section 13. Limitation of Liability
13.1 Limitation of Liability. IN NO EVENT WILL BOX’S TOTAL AND CUMULATIVE LIABILITY OR THAT OF ITS DISTRIBUTORS AND RESELLERS, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO BOX FOR THE SPECIFIC USE OF THE BOX SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
13.2 Disclaimer of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR THEIR DISTRIBUTORS AND RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Section 14. Confidentiality
14.1 Definition. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (a) the Box Service; (b) Content; (c) the terms of this Agreement including all Orders and pricing thereto, and (d) the Disclosing Party’s strategic roadmaps, product plans, product designs and architecture, technology and technical information, security audit reviews, business and marketing plans, and business processes. Confidential Information other than Content, will not include information that as shown by the Receiving Party’s records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
14.2 Protection. The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the Parties’ ongoing business relationship.
14.3 Permitted Disclosure. Neither Party will disclose Confidential Information in violation of the terms and conditions of this Agreement, to any third party, without the prior written consent of the other Party. Notwithstanding the foregoing each Party may disclose Confidential Information, including the terms and conditions of this Agreement, without the prior written consent of the other Party: (a) as compelled by law provided that to the extent legally permissible the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure; (b) in confidence, to legal counsel, accountants, banks, and financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; (d) the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (e) or to respond to an emergency which Box believes in the good faith requires Box to disclose information to assist in preventing the death or serious bodily injury of any person.
Section 15. Miscellaneous
15.1 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.
15.2. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Box’s employees, agents or subcontractors in connection with this Agreement. Customer will use reasonable efforts to promptly notify Box at legalops@box.com should Customer learn of any violation of this restriction.
15.3 Press Release; References. Neither Party will issue a public statement or press release regarding this Agreement (except as otherwise authorized under 14.3) without the prior consent of the other Party. Notwithstanding the foregoing, Box may, during the Term, reference Customer as a Box customer or user of the Box Service subject to Customer’s trademark and logo usage guidelines as provided to Box.
15.4 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 as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to Box, when sent via email to legalops@box.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Box, Inc., 4440 El Camino Real, Los Altos, California 94022 U.S.A. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
15.5 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.
15.6 Assignment. Customer will not, directly, indirectly, by operation of 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 Box. Box may assign this Agreement without obtaining Customer’s consent: (a) to an affiliate of Box; or (b) in connection with a successor in interest in a merger, reorganization or a sale of all or substantially all of the assets of Box. 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.
15.7 Integration; Order of Precedence. This Agreement, together with any Orders and the Exhibits, 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. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by Customer, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with this Agreement.
15.8 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
15.9 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Palo Alto, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
15.10 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 (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will 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 with 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.
EXHIBIT A
ADDITIONAL SPECIFICATIONS FOR ACCOUNTS
Box will provide Customer with access to storage on Box servers connected to the Internet subject to the terms and conditions of the Agreement. Customer will subdivide this storage among the Accounts, corresponding to the quantity of Users specified by the applicable Order, and assign them to Users.
Box will provide the Administrator with a login and password (which may be changed by the Administrator after initial login) for the Administrative Console. The Administrator may access the Administrative Console from a web browser. The Administrator may use the Administrative Console to create or delete Accounts, up to the number of Accounts specified by the Agreement. Should a Managed User forget his/her password, the Administrator will have the right to reset it from the Administrative Console. Accounts for Managed Users may only be created through the Administrative Console. Subject to any storage capacity limits as may be identified in an Order, the Administrator will have the right to establish an upper limit on allowed usable storage per Account, on a case-by-case basis. The 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 the current month, most recent login activity, Managed Users currently using the Accounts, and date of last upload or download and action taken at that time.
SERVICE LEVEL COMMITMENTS AND SUPPORT SERVICES
Commencing on the effective date of the applicable Subscription Period, Box will provide to Customer the Service Level Commitments and Support Services defined herein as specified in the applicable Order. In the event of a conflict between the terms of the Agreement and the terms of this Exhibit B, the terms of this Exhibit B shall prevail.
1. Exhibit Definitions
“Customer Core Group” means Customer’s employees who have been trained on the Box Service and who are familiar with Customer’s business practices.
“Customer User Community” means all Customer’s Users.
“Downtime" means any period during which the Customer in unable to access or use the Box Service because of an Issue, excluding (i) Scheduled Downtime or (ii) document preview, search, email uploads, sync or FTP functions of the Box Service.
“Issue” means a single, reproducible issue or problem materially or significantly affecting the functionality of the Box Service.
"Scheduled Downtime” means a time period identified by Box not to exceed 1 hour per calendar quarter and subject to 24 hours’ prior notice wherever practical as provided to Box’s general customer base, in which Box intends to have any downtime of the Box Service or related systems.
“SLC Credit” means the credit identified in Section 3 below, which may be offered to Customer in the event Customer reports an Uptime Percentage of less than 99.9% where Customer has paid Box for Premier Support for the applicable Account Licenses during the Subscription Period.
"Uptime Percentage" means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes in such calendar month.
“User Administration Support” means issues that impact the usability of the Box Service and are addressable through the adjustment of User access privileges, processes or procedures.
2. Scope of Service Level Commitments.
Box's obligations do not extend to Issues or errors caused by:
3. Scheduled Downtime and Guaranteed Up Times
Box will use commercially reasonable efforts to provide at least 24 hours’ prior notice before implementing any Scheduled Downtime. Subject to Customer’s purchase of Premier Support, Box will provide Customer with the SLC Credits identified below during the applicable Subscription Period upon Customer’s written request. The SLC Credit will be equal to the credit percentage identified in the table SLC Credits table below multiplied by the Customer’s fees paid to Box for the Box Service that are attributable to the corresponding month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). Customer will submit a written SLC Credit request to Box within 15 days of such Downtime. The SLC Credit is Customer's sole and exclusive remedy for any failure by Box to meet any support obligations as identified herein.
SLC Credits Table
Uptime Percentage |
SLC Credit Percentage |
Less than 99.9% but more than 99.8% | 10% |
Less than 99.8% but more than 99.7% | 20% |
Less than 99.7% but more than 99.6% | 30% |
Less than 99.6% but more than 99.5% | 40% |
Less than 99.5% but more than 99.4% | 50% |
Less than 99.4% but more than 99.3% | 60% |
Less than 99.3% but more than 99.2% | 70% |
Less than 99.2% but more than 99.1% | 80% |
Less than 99.1% but more than 99.0% | 90% |
Less than 99.0% | 100% |
4. Availability of SLC Credits
Customers who are past due on any payments owed to Box are not eligible to receive SLC Credits. Box will issue SLC Credits, as determined in its sole discretion, either on future billing cycles or as a refund against annual fees paid. In order to receive any SLC Credit, Customer must notify Box in writing within 15 days from the time Customer becomes eligible to receive a SLC Credit. Failure to comply with this requirement will forfeit Customer's right to receive a SLC Credit. In no event will the total amount of SLC Credits if any, exceed the fees paid by Customer for the corresponding month.
5. Support Services
Box will provide support services to assist Customer in resolving Issues (“Support Services”). Support Services do not include (a) physical installation or removal of the API, the Box Software and any Documentation; (b) visits to Customer’s site; (c) any professional services (“Professional Services”) associated with the Box Service, including, without limitation, any custom development, data modeling, training and knowledge transfer; or (d) the set-up, configuration and use of the Box Service. Box’s performance of Professional Services if any, will be subject to the Parties’ execution of a Professional Services addendum (“PSO Addendum”) to this Agreement and payment of the applicable Fees.
The Customer will ensure that the Customer User Community addresses all Issues through the Customer Core Group. The Customer Core Group will:
6. Case Prioritization
Any issues reported by Customer to Box and accepted by the Box support team will be classified as an Issue or a Request and assigned a priority. The following priorities and their meanings are used herein:
7. Response Times
Box will provide an acknowledgement of a reported Issue to Customer and respond within the target time frames specified below (“Response”). The Response will include the priority assigned to the case, any actions taken, immediate resolution if available, and any escalation plans.
Hours of Operation and Response Time | Standard Support | Premier Support |
Hours of Operation | 5 AM – 6 PM PST Monday – Friday | 24 Hours/Day 7 Days/Week 365 days/year |
Support Access Method | Web/Phone | Web/Phone |
Support Response Method | Email/Phone | Email/Phone |
Number of Support Requests | Unlimited | Unlimited |
Priority Level/Target Response Time: Level 1 – Urgent Level 2 – High Level 3 – Normal | Within 1 business hour Within 4 business hours Within 8 business hours | Within 1 business hour Within 2 business hours Within 2 business hours |
Support Credits | N/A | 15% of paid monthly Support Fee |
Resolution to an Issue is subject to verification and reproduction of the Issue by Box, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by Box, or a computer or operating routine. Once Box has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted.
8. Premier Support Credits
Provided that Customer: (i) has purchased Premier Support, (ii) has opened a support ticket for an Issue, and (iii) Box fails to meet the Response Times for Level 1 and Level 2 support tickets three times during the given month, Box will provide to Customer a Premier Support Credit of 15% of the Fees paid to Box by Customer for the Premier Support Service that are attributable to such month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). The Support Credit is Customer's sole and exclusive remedy for any failure by Box to meet any Support Services performance obligations pertaining to the Box Service. In no event will the total amount of Premier Support Credits and/or SLC Credits if any, exceed the fees paid by Customer for the corresponding month.