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Terms of Service

Your Agreement with Nubix

 

BY CLICKING “I ACCEPT,” DOWNLOADING NUBIX SOFTWARE, OR BY ANY OTHER MEANS ACCESSING AND USING NUBIX SOFTWARE SERVICES AND/OR SITES, YOU ARE AGREEING TO ALL OF THESE TERMS, INCLUDING THOSE INCORPORATED HEREIN (COOKIE AND TRACKING, ACCEPTABLE USE, AND PRIVACY POLICIES). IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT CLICK “I ACCEPT,” DOWNLOAD, OR ACCESS/USE THE SOFTWARE, SERVICES OR SITES.

1 General Terms 

1.1  We are Nubix, Inc. (“Nubix”, “our”, “us” or “we”).  "Nubix" means Nubix, Inc., a Delaware corporation with its principal place of business at 548 Market Street in San Francisco, California, and its subsidiaries and Affiliates (as defined below) involved in providing Nubix Products and Services.  Your access to, and use of, all products and services sold or otherwise provided to you as a part of Nubix’s solutions (collectively, the “Products and Services,” respectively) and the Sites (as defined below) is subject to the terms and conditions set forth in these Nubix Terms of Service (these “Terms”), which include, by this reference as if fully stated herein, the Cookie and Tracking PolicyAcceptable Use Policy, Privacy Policy, as each may be updated or amended from time to time (collectively, the “Policies”).  As part of these terms, and as a condition to your continued use of the Products and Services, you agree to access the above links or through the nubix.io website to review and follow the Policies as part of this agreement.  The Nubix “Products and Services" include, without limitation, the Nubix cloud platform, the Nubix CLI and API, the Nubix container and any other software or services offered by Nubix in connection to any of those. "Affiliate" means any entity which may now or in the future directly or indirectly control Nubix, or that Nubix may control, or any entity with which Nubix has partnered to provide the Products and Services. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2  In order to use the Nubix Products and Services, you must first agree to these Terms. You can agree to the Terms by actually using the Nubix Products and Services. You understand and agree that Nubix will treat your use of the Nubix Products and Services as acceptance of the Terms from that point onwards.

1.3  Nubix provides access to the Product and Services through both: (i) websites, including, without limitation, those located at nubix.io and app.nubix.io and related domains (each, a “Site,” and all, collectively, the “Sites”); and (ii) software that may be downloaded to a device (each, an “Edge App” and collectively the “Edge Apps”). Certain additional paid services or features that Nubix may offer (such as additional cloud data storage and other premium subscription Services) may have additional or different terms, but in the absence of the same will be governed by these Terms alone. Nubix offers only the ability to access and/or use the Services, the Sites and Edge Apps, and never sells or otherwise transfers ownership to any of them.

1.4  If you have entered into or enter into a master subscription agreement with Nubix, that master subscription agreement shall not apply to Nubix Products and Services, and Nubix Products and Services shall not be considered a service or product or part of any service or product under such master subscription agreement, unless otherwise expressly agreed in writing by Nubix. 

1.5  You may not use, and you agree not to use the Nubix Products and Services if you are a person barred from receiving the Nubix Products and Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Nubix Products and Services.

1.6  You agree that your purchase of Nubix Products and Services, either directly or indirectly through any means (such as purchase of a device that uses Nubix Produces and Services), is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Nubix or any of its Affiliates regarding future functionality or features.

1.7  Nubix reserves the right, in its sole discretion, to modify, amend or supplement any term or condition of these Terms at any time, with or without notice, by posting such modifications, amendments and/or supplements here or at the Nubix website Terms of Service page. If you continue to use any of the Products and Services after any such modifications, amendments or supplements are made, you are then accepting and agreeing to be bound by them.  The same applies to modifications, amendments, or supplements to any Policies.

2. Your Account and Use of the Nubix Products and Services

2.1  You must provide accurate and complete registration information any time you register to use the Nubix Products and Services. You are responsible for the security of your passwords and for any use of your account.  If you become aware of any unauthorized use of your password or of your account, you agree to notify Nubix immediately.

2.2  Your use of the Nubix Products and Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

2.3  You represent and warrant that: (i) if you are an individual, you are at least 18 years old and otherwise legally competent in all respects to enter into and be bound by these Terms; or (ii) if you are an entity, (A) you are a legal entity in good standing, (B) you possess all legal authority and power to enter into and be bound by these Terms, (C) the natural person who clicked “I Accept” to accept these terms had full corporate authority to do so, and you hereby bind your entity and all natural persons employed or engaged by your entity that may use the Products and Services, the Sites and/or the Edge Apps.

2.4  You agree not to (a) access (or attempt to access) the administrative interface of the Nubix Products and Services by any means other than through the interface that is provided by Nubix in connection with the Nubix Products and Services, unless you have been specifically allowed to do so in a separate written agreement with Nubix, or (b) engage in any activity that interferes with or disrupts the Nubix Products and Services (or the servers and networks which are connected to the Nubix Products and Services).

2.5  Your account has "hard" and "soft" usage limits, as further explained here (or such URL as Nubix may provide). The Nubix Products and Services do not permit you to exceed the hard usage limits. Nubix reserves the right to enforce soft usage limits in its sole discretion, which may result in Nubix serving a "quota exceeded" page to you or users to whom you serve web pages via the Nubix Products and Services ("End Users"). Repeatedly exceeding the hard or soft usage limits may lead to termination of your account.

2.6  You may use the Nubix Products and Services only to develop and run applications on the Nubix Products and Services infrastructure. You may not access the Nubix Products and Services for any other purpose, and you may not use any Produces and Services for the purpose of bringing an intellectual property infringement claim against Nubix or for the purpose of creating a product or service competitive with the Nubix Products and Services.  Any action or attempt to reverse engineer or otherwise use or usurp for a purpose other than how the Products and Services are intended to be used, or assistance with another in doing the same, will automatically terminate any license and right to use the Products and Services, and the person or entity doing the above will be subject to liability and damages, which will not be reduced or limited under Sections 12 and 13 (notwithstanding any provisions therein to the contrary) that have no application to violations of this paragraph. 

3. Product and Service Policies and Privacy

3.1  You agree to comply with the Nubix Acceptable Use Policy available at acceptable use policy (the "Acceptable Use Policy") which is incorporated herein by this reference and which may be updated from time to time.

3.2  The Nubix Products and Services shall be subject to the privacy policy at privacy policy. You agree to the use of your data in accordance with such privacy policy.

3.3  Nubix shall use commercially reasonable efforts to make the Nubix Products and Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Nubix will make reasonable efforts to provide you notice through either the Site or via the Nubix Products and Services), or (b) any unavailability caused by circumstances beyond Nubix's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Nubix employees), Internet service provider failures or delays, or denial of service attacks.

3.4  You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Nubix.

4. Fees for Use of the Nubix Products and Services

4.1  You will pay all fees specified in the documentation or agreement under which you gained access to the Products and Services, and/or any Order Forms hereunder. "Order Forms" means the documents for placing orders hereunder that are entered into between you and Nubix (or that involve any Affiliate) from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the Nubix Products and Services purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

4.2  Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form or other documentation or agreement that may be applicable. Unless otherwise stated therein, fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Nubix and notifying Nubix of any changes to such information.

4.3  If any amounts invoiced hereunder are not received by the due date, then at Nubix's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Nubix may condition future subscription renewals and Order Forms on payment terms shorter than those above.

4.4  If any charge owed by you is 30 days or more overdue, Nubix and/or the applicable Nubix Affiliate may, without limiting its other rights and remedies, suspend Products and Services until such amounts are paid in full, but in such event Nubix will make reasonable efforts to provide you 10 or more days' prior notice that your account is overdue.

4.5  Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If Nubix has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Nubix is solely responsible for taxes assessable against it based on its income, property and employees.

5. Content on the Nubix Products and Services and Take Down Obligations

5.1  You understand that all information (such as data, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Nubix Products and Services are the sole responsibility of the person or entity from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the web application(s) that you create using the Nubix Products and Services and any source code written by you to be used with the Nubix Products and Services (collectively, "Application").

5.2  Nubix reserves the right (but shall have no obligation) to remove any or all Content from the Nubix Products and Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take-down request from Nubix. In the event that you elect not to comply with a request from Nubix to take down certain Content, Nubix reserves the right to directly take down such Content or to disable Applications or your account.

5.3  In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. Nubix reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.

5.4  You agree that you are solely responsible for (and that Nubix has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Nubix Products and Services and for the consequences of your actions (including any loss or damage which Nubix may suffer) by doing so.

5.5  You agree that Nubix has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Nubix Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.

6. Proprietary Rights

6.1  You acknowledge and agree that Nubix (or Nubix 's licensors) own all legal right, title and interest in and to the Nubix Products and Services, including any intellectual property rights which subsist in the Nubix Products and Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

6.2  Except as provided in Section 8, Nubix acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Nubix Products and Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Nubix, you agree that you are responsible for protecting and enforcing those rights and that Nubix has no obligation to do so on your behalf.

7. License from Nubix and Restrictions

7.1  Nubix gives you a revocable, personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Nubix as part of the Nubix Products and Services as provided to you by Nubix. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Nubix Products and Services as provided by Nubix, in the manner permitted by the Terms.  Your license will be deemed automatically revoked as of the date you violate any of these Terms or the Policies, and your continued use of the Nubix Products and Services thereafter will be without authorization unless Nubix waives the violation, which may only be done in writing.

7.2  You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Nubix Products and Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Nubix, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Nubix Products and Services or any applications running on the Nubix Products and Services.

7.3  Open source software licenses for components of the Nubix Products and Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Nubix for the use of the components of the Nubix Products and Services released under an open source license.

7.4  Nubix hereby grants you a revocable, limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Nubix trademarks and/or logos as provided here ("Marks") for the sole purpose of promoting or advertising that you use the Nubix Products and Services and solely in accordance with the then current Trademark Usage Guidelines for Nubix, which may be found at https://www.nubix.io/trademark (or such other URL Nubix may provide from time to time). You agree that all goodwill generated through your use of the Nubix Marks shall inure to the benefit of Nubix.

7.5  Use of the full functionality of the Products and Services may require you to utilize one or more third-party products or services, including, without limitation, open-source software or third-party software that is licensed separately under the terms of various separate license agreements (“Other Software”). You decide which third-party products or services, if any, you want to utilize. Other Software is licensed to you under the terms of the applicable third-party license agreements (the “Other Software Terms”). Intellectual property rights and to the Other Software are held by copyright holders indicated in the Other Software Terms. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable Other Software Terms for the Other Software. Your explicit consent and authorization may be required for any third-party product or service, including, without limitation, Other Software.  Once your consent is given for a particular third-party product and service, including, without limitation, Other Software, Nubix may exchange information and data regarding you and your use of the Services, in order to enable the interface you have authorized to work together with the Services. Once this information is shared with the particular third-party product or service, its use will be governed by the third party’s privacy policy and terms of service.

8. License from You

8.1  Nubix claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Nubix Products and Services you give Nubix a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Nubix to provide you with the Nubix Products and Services. Furthermore, by creating an Application through use of the Nubix Products and Services, you give Nubix a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Nubix to provide you with the Nubix Products and Services.

8.2  By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Nubix Products and Services functionality or features for the sole purpose of collaborating on development of the Application(s).

8.3  You may choose to or we may invite you to submit comments or ideas about the Nubix Products and Services, including without limitation about how to improve the Nubix Products and Services or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Nubix under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.

8.4  You agree that Nubix, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Nubix Products and Services.

9. Add-ons

9.1  Nubix may make available through the Nubix Products and Services additional features, functionality, and services offered by its third-party partners ("Add-ons"). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you subscribe to or purchase through the Nubix Products and Services, these Terms constitute a separate binding agreement between you and the third party licensor of that Add-on ("the Add-on Provider") only and Nubix is not a party to such agreement. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein and the privacy and security of any of your data processed by the Add-on, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; Nubix is acting as agent for the Add-on Provider in providing each such Add-on to you; Nubix is not a party to the license between you and the Add-on Provider with respect to that Add-on; and Nubix is not responsible for that Add-on, the content therein, the privacy and security of any of your data processed by the Add-on, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that Nubix is a third party beneficiary of the agreement between you and the Add-on Provider for each Add-on, and that Nubix will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.

9.2  By subscribing to or purchasing an Add-on, you grant Nubix permission to share your Application, Content, and user information and data with the Add-on Provider as necessary in order to provide you the Add-on.

9.3  The license granted to you to use any Add-on is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others.

10. Recommendations

10.1  Nubix may, and you grant us permission to, make recommendations via the Nubix Products and Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Nubix Products and Services.

11. Modification and Termination of the Nubix Products and Services, Survival of Certain Terms and Policies 

11.1  Nubix is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Nubix Products and Services which Nubix provides may change from time to time without prior notice to you. Changes to the form and nature of the Nubix Products and Services will be effective with respect to all versions of the Nubix Products and Services; examples of changes to the form and nature of the Nubix Products and Services include without limitation security patches, added functionality and other enhancements.

11.2  The Terms, to the extent they obligate Nubix, continue in full force and effect until the Nubix Products and Services ordered by you, pursuant to Order Forms or other agreement, have expired or have terminated, at which time Nubix ceases to be bound and the license hereunder terminates.  The Terms, other than those that, by their nature, only apply during your use of the Products and Services, such as your obligation to pay any fees which terminates when your Order Forms or agreement have expired or terminated, shall continue to be binding upon you and survive termination of your license or use.  In particular, and without limitation, your agreement under Sections 2.6 (to not use information or material gained from Nubix for infringement or competition against Nubix), 6.1 (Nubix ownership of its Products and Services), this section 11, and 12 through 14 (disclaimer of warranties, limitation on liability, and indemnity) all survive termination or expiration of your use and license hereunder regardless of the reason for termination.

11.3  You are solely responsible for exporting your Content and Application(s) from the Nubix Products and Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).

12. Warranties, Exclusive Remedies and Disclaimers

12.1  Nubix warrants that (i) it has validly entered into these Terms and has the legal power to do so, and (ii) the functionality of the Nubix Products and Services will not be materially decreased during a subscription term. For any breach of a warranty above, your exclusive remedy shall be to terminate your subscription to the Nubix Products and Services, and Nubix will not have any liability.

12.2  You warrant that You have validly entered into this Agreement and have the legal power to do so.

12.3  NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT EITHER PARTY'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

12.4  NUBIX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE NUBIX PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUBIX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE NUBIX THE NUBIX PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE NUBIX PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE NUBIX PRODUCTS AND SERVICES WILL BE ACCURATE.

12.5 Nubix does not warrant the compatibility of any of its Products and Services with software, hardware, or other products or services from others.  In particular, Nubix does not warrant that the Edge Apps will be compatible with all devices. Other applications may interact with the Edge Apps in unpredictable ways, and Nubix does not warrant against malfunctions or errors caused by such interactions. Nubix grants to you a limited, revocable, non-exclusive, non-transferable license to use an object code copy of the Edge Apps for one registered account on Edge devices owned or leased solely by you for your use in connection with the Services, but the same will be subject to these Terms, including the Policies.

13. Limitation of Liability

13.1  SUBJECT TO SECTION 12.3, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT ATTRIBUTABLE TO THE NUBIX PRODUCTS AND SERVICES PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT ATTRIBUTABLE TO THE NUBIX PRODUCTS AND SERVICES PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE "FEES FOR USE OF THE NUBIX PRODUCTS AND SERVICES" SECTION ABOVE.

13.2  SUBJECT TO SECTION 12.3 ABOVE, NEITHER PARTY (NOR A PARTY'S SUBSIDIARIES AND AFFILIATES) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY THE OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

13.3  THE LIMITATIONS ON LIABILITY IN PARAGRAPH 13.2 ABOVE SHALL APPLY WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

14. Indemnification

14.1  Notwithstanding Section 13 above, you shall defend and hold Nubix harmless against any claim, demand, suit or proceeding made or brought against Nubix by a third party arising from or in any way related to (a) your breach of the Terms, (b) your use of the Nubix Products and Services, (c) your violation of applicable laws, rules or regulations in connection with the Nubix Products and Services, or (d) your Content or your Application ("Claim Against Nubix"), and shall indemnify Nubix for any damages, attorney fees and costs finally awarded against Nubix as a result of, and for amounts paid by Nubix under a court-approved settlement of a Claim Against Nubix, and Nubix will (a) promptly give you written notice of the Claim Against Nubix, (b) give you sole control of the defense and settlement of the Claim Against Nubix (provided that you may not settle or defend any Claim Against Nubix unless it unconditionally releases Nubix of all liability), and (c) provide to you all reasonable assistance, at your expense.

14.2  Nubix shall defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of the Nubix Products and Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give Nubix written notice of the Claim Against You, (b) give Nubix sole control of the defense and settlement of the Claim Against You (provided that Nubix may not settle or defend any Claim Against You unless it unconditionally releases you of all liability), and (c) provide to Nubix all reasonable assistance, at Nubix's expense. In the event of a Claim Against You, or if Nubix reasonably believes the Nubix Products and Services may infringe or misappropriate, Nubix may in its discretion and at no cost to you (i) modify the Nubix Products and Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the Nubix Products and Services in accordance with this Agreement, or (iii) terminate your subscription for such Nubix Products and Services upon 30 days' written notice and refund you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.

15. Copyright Policy

You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is Nubix 's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. 

16. Other Content

16.1  The Nubix Products and Services may include hyperlinks to other web sites or content or resources or email content. Nubix may have no control over any web sites or resources which are provided by companies or persons other than Nubix.  You accept such information as is and at your own risk.

16.2  You acknowledge and agree that Nubix is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

16.3  You acknowledge and agree that Nubix is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

17. Non-GA Products and Services

From time to time Nubix may invite you to try, at no charge, Nubix products or services that are not generally available to Nubix customers ("Non-GA Products and Services"). You may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA Services are not considered "Nubix Products and Services" hereunder and are provided "AS IS" with no express or implied warranty. Nubix may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.

18. General Legal Terms

18.1  The Terms, including all Order Forms and the Policies, constitute the whole legal agreement between you and Nubix and govern your use of the Nubix Products and Services (but excluding any services which Nubix may provide to you under a separate written agreement), and completely replace any prior agreements between you and Nubix in relation to the Nubix Products and Services. No modification, amendment, or waiver of any provision of thee Terms shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of the Terms and any Order Form, the terms of such Order Form shall prevail.

18.2  There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

18.3  If Nubix provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

18.4  You agree that Nubix may provide you with notices by email, regular mail, or postings on the Nubix Products and Services. By providing Nubix your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.

18.5  You agree that if Nubix does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Nubix has the benefit of under any applicable law), this will not be taken to be a formal waiver of Nubix 's rights and that those rights or remedies will still be available to Nubix.

18.6  The Terms, and your relationship with Nubix under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Nubix agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms.

18.7  Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of your use of the Nubix Products and Services upon written notice to the assigning party.

18.8 California Consumer Notice: Under California Civil Code Section 1789.3, California users may be entitled to the following consumer rights notice:

California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

18.9 It is the intent of the parties to be bound by all of these Terms, including the referenced Policies, but if any term or policy is or becomes illegal or otherwise unenforceable, you consent to and request that such term or policy be interpreted and applied, as permitted by law, as closely as possible to the original language herein or in the Policies.  If any term or policy cannot be so interpreted or applied without its being illegal or unenforceable, it shall be severed from these Terms and Policies, and the remainder will be enforced to the fullest extent permitted by law.