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 shall be effective and Customer agrees to be bound by its terms when Customer accesses the Box Service (defined below) and clicks the acceptance tab and/or submits any Order(s) for the Box Service (“Agreement Effective Date”). If Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that Customer has the legal authority to bind that company or 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 meanings:
“Account(s)” means all Content storage account(s) created by or on behalf of Customer (including accounts created by or for its Administrators and Managed Users) within the Box Service.
“Administrator(s)” means the person(s) designated by Customer to have authority to utilize the Management Console to create and manage Accounts associated with Customer.
“API” means the application programming interface used by Customer to access certain enterprise functionality provided by the Box Service.
“Box Service” means the hosted storage solution provided by Box that permits online Content storage, sharing and processing, including, individually and collectively, the API, the Box Software and any Documentation.
“Box Software” means software that allows an End 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 an End User’s device or that is otherwise accessed by End Users from the Customer’s or End 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 using the Box Service.
“Documentation” means any written or electronic documentation specifying the functionality of the Box Service provided or made available by Box to Customer or its End Users.
“End 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.
“External User” means an individual invited by Customer to collaborate with a person who is a Managed User, and is not in the same domain as Customer.
“Fee(s)” means the amounts payable to Box as specified in the applicable Order.
“Initial Term of Agreement” has the meaning set forth in Section 10.1.
“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 an individual who has been given Account access by an Administrator.
“Management Console” means the functionality for managing user access, security and other
administrative functionality for Accounts associated with the Box Service provided to Customer.
“Order” means a Box quote accompanied by a purchase order or other ordering document issued by Customer to Box under this Agreement or to a Box authorized reseller that is accepted and provisioned by Box as set forth in Section 2.2.
“Service Level Commitment” means any service level commitments set forth in Exhibit B, if any, 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 and www.box.com.
“SLC Credits” has the meaning set forth in Exhibit B.
“Subscription Term” has the meaning set forth in Section 2.4.
“Term of Agreement” has the meaning set forth in Section 10.2.
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 Administrators to access and use the Management Console to create and administer Accounts registered to Customer; (b) allow Managed Users and External Users to store and retrieve Content through the Box Service solely through any Account registered to Customer; and (c) make a reasonable number of copies of the API, the Box Software and any Documentation 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 End Users.
2.2 Orders; Delivery. Customer may from time to time place Orders for access to the Box Service, each subject to acceptance and provisioning by Box. Orders shall be deemed accepted by Box when access to the Box Service has been provisioned or by otherwise informing Customer of Box’s acceptance of an Order (“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 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 Subscription Term; Access for Retrieval of Content. Each Order may specify the length of Customer’s access to the Service (“Subscription Term”), which shall commence on the corresponding Order Effective Date and continue for the period specified therein.
2.4 Upgrade Option. During the Term of this Agreement, Customer may upgrade or expand the Box Service originally obtained under an Order so as to obtain additional End User access, or features and functionality (“Box Service Upgrade”) at pricing and terms to be mutually agreed upon by the Parties. Fees for such upgrades will be invoiced to Customer, prorated on an annual basis to be coterminous with the applicable Order.
2.5 End User Conduct; Restrictions on Use of the Box Service. Customer shall be responsible for the End User’s compliance with this Agreement and for the quality, accuracy and legality of the Content. Customer shall not and shall ensure that its End Users do not: (a) use the Box Service in any manner or for any purpose other than as expressly permitted by this Agreement, (b) sell, lend, rent, resell, lease, or sublicense the Box Service to any third party; (c) modify, alter, tamper with, repair or otherwise create derivative works of any software included in or used to provide the Box Service; (d) reverse engineer, disassemble or decompile the Box Service, or attempt to derive source code e from the Box Service; (e) remove, obscure or alter any proprietary right notice related to the Box Service; (e) use the Box Service to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; (f) store or transmit Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, or libelous material, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (g) transmit any Content that contains Malicious Code; (h) interfere with or disrupt servers or networks connected to the Box Service or other Box’s users’ access to the same, or violate the regulations, policies or procedures of such networks; (i) access or attempt to access Box’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means; or (j) (f) access or use the Box Service in a way intended to avoid incurring fees or exceeding usage limits or quotas. The Box Service is subject to bandwidth and/or storage capacity limits as additionally specified in the applicable Box quote. Without limiting any other remedies under this Agreement if Customer exceeds the applicable storage capacity limit, reasonable restrictions will be placed on Customer’s Account until any such excess capacity is mitigated or eliminated by Customer.
2.6 Suspension of Service. Box reserves the right, at any time and in Box’s reasonable discretion, to temporarily suspend Customer’s or an End User’s access to the Box Service due to: (a) Scheduled Downtime and Recurring Downtime (as defined in Exhibit B); (b) unplanned technical problems and outages; (c) inordinate burden on Box’s system resources resulting from capacity or usage of the Box Service by Customer or its End Users e.g. exceeding 1TB bandwidth per End User per month; (d) the suspicion or detection of any Malicious Code or device in Customer’s or an End User’s use of the Box Service; and (e) violation of any Policy or other obligation by Customer or any of its End Users under this Agreement. If, in Box’s reasonable determination, the suspension might be indefinite and/or Box has elected to terminate Customer’s or an End User’s access to the Box Service or the Account pursuant to Subsections (c), (d) or (e) hereinabove, Box will notify Customer through the Box Service as soon as reasonably possible. Any such suspensions based on repairs, technical problems, outages or maintenance services will be subject to the Service Level Commitments if any purchased by Customer.
2.7 Updates to the Service. Notwithstanding anything to the contrary in this Agreement or the Service Level Commitments, Box reserves the right, in its sole discretion, to make necessary unscheduled deployments of updates or enhancements to the Box Service at any time. Customer acknowledges and understands that during and following such deployments, certain functionality of or relating to the Box Service may be unavailable and outages may occur.
Section 3. Non-Box Applications and Services.
Any third-party applications and/or services (**“Third-party Products”**) made available through the Box Service are solely for the convenience of Box’s customers. 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 11.3 (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 SAS 70 Type II audit certification or its equivalent during the Term of Agreement and will provide a copy to Customer once per year upon prior written request. Box shall have no liability to Customer or any third party for any reason as a result of any unauthorized disclosure or access to Customer’s Account or Content as a result of Customer’s misuse, loss or theft of any password or username.
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 personal 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.
Section 5. Customer Responsibilities
5.2 Managed Users. Customer will have the right to appoint a Managed User for each Account established through the Management 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 his Agreement.
5.3 Content. Customer will: (a) ensure that the Content complies with the Policies and any and all applicable laws, and regulations; (b) promptly handle and resolve any notices and claims relating to the Content including; (c) 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 (d) maintain appropriate security, protection and backup copies of the Content, which may include (i) the use of encryption technology to protect the Content from unauthorized access and (ii) routine archiving of the Content. Box will have no liability of any kind as a result of Customer’s deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
5.4 Notification of Unauthorised 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 End Users, Customer will take all steps necessary to terminate such unauthorized use. Customer will provide Box with such cooperation and assistance related to any such unauthorized use as Box may reasonably request.
Section 6. Box Obligations
6.1 Support Services. Box will provide commercially reasonable support services to assist Customer in the set-up, configuration and use of the Box Service. 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 electrical, mechanical or other work with hardware, accessories or other devices associated with the use of the Box Service; (d) any work with any third party equipment, software or services; or (e) any professional services associated with the Box Service, including, without limitation, any custom development, data modeling, training and knowledge transfer. Upon Box’s request, Customer will provide Box with remote access to Customer’s computer systems as reasonably required for Box 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. If Customer has not subscribed to and paid for the Service Level Commitments under the applicable Order, the obligations set forth therein will not apply. The sole and exclusive remedy for any breach of any Service Level Commitment shall be as set forth in Exhibit B.
Section 7. Proprietary Rights
7.1 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 or disclose the Content solely to provide the Box Service to Customer or any End User or to comply with any request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law.
7.2 Ownership by Box. As between Box and Customer, Box or its licensors own and reserve all right, title and interest in and to the Box Service and all hardware, software and other items used to provide the Box Service, other than the rights explicitly granted to Customer in Section 2 to use the Box Service. 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. In the course of this Agreement, Customer may provide comments, suggestions and recommendations to Box with respect to the Box Service (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to the Box Service) (collectively, “Feedback”). Box shall have a word-wide, royalty free, irrevocable, perpetual license to use and incorporate any Feedback into the Box Service.
Section 8. Government Users
If Customer is a U.S. government entity, 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 end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
Section 9. Fees and Payment
9.1 Fees. Customer shall 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 Term or Box Service Upgrade, Customer shall pay Box the then-current list price for such extension or Box Service Upgrade, unless otherwise mutually agreed in writing by the Parties. 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. The Fees for Service are set forth in the applicable Order. Any increase in the Fees shall take effect at the beginning of Customer’s next Subscription Term, or such later date as may be specified in the applicable Order.
9.2 Invoicing and Payment Terms. Unless otherwise specified in the applicable Order, all Fees shall be due and payable 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 agree to 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.
9.3 Taxes. Fees are exclusive of Taxes and Customer shall 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. If Customer is required to pay or withhold any Tax in respect of any payments due to Box hereunder, Customer shall gross up payments actually made such that Box shall receive sums due hereunder in full and free of any deduction for any such Tax. 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.
9.4 Purchases Through Authorised Box Resellers. The terms of this Agreement related to pricing, payment or Taxes shall not apply to any Customer Orders placed through authorized Box reseller (“Box Reseller”) where Customer pays the applicable fees directly to such Box Reseller. Customer shall establish such terms independently with the Box Reseller.
Section 10. Term and Termination
10.1 Term of Agreement. This Agreement will commence on the Agreement Effective Date and will continue for the period of 1 year thereafter (“Initial Term of Agreement”).
10.2 Renewal. Unless otherwise terminated as provided for herein, this Agreement will automatically renew following the Initial Term for consecutive 1 year periods unless either Party provides the other Party with its intent not to renew the then-current Term of Agreement at least 30 days prior to the end of the then-current Term of Agreement. The Initial Term of Agreement and any subsequent renewal terms are collectively referred to herein as the “Term of Agreement.” For the avoidance of doubt, any discounts offered by Box to Customer during a given year will not renew during any renewal term unless agreed to by the Parties in writing.
10.3 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 will constitute a material breach of this Agreement. Notwithstanding the foregoing, Box may terminate this Agreement or any Order effective immediately upon written notice to Customer as a result of Customer’s breach of Sections 2, 4.1, 5.1, 5.3, 5.4, or 5.5.
10.4 Post-Termination Obligations. Upon termination 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, destroy all copies of the API, the Box Software and any Documentation and Confidential Information of Box, including any Documentation in written or electronic form and any 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 and any written or electronic documentation and Confidential Information of Box have been destroyed. For 30 days following the expiration of the Termination of the Agreement and/or applicable Subscription Term, 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 shall have no obligation to maintain the Content and will delete the Content unless legally prohibited.
10.5 Surviving Provisions. Upon any termination of the term of this Agreement hereunder, the following sections will survive: Sections 1, 2.5, 4.1 (with respect to Customer’s obligations thereunder), 7, 9, 10.4, 10.5, 11.4, 12, 13, 14 and 15.
Section 11. Warranty and Disclaimer
11.1 Box Service Warranty. Box warrants that the Box Service will perform substantially in accordance with the functions specified in the Documentation. In the event of a breach of this warranty Customer shall be entitled to (a) a service level credit, if any, for any downtime incurred in connection with Customer’s use of the Box Service, and/or (b) to terminate this Agreement if the Box Service fails to perform substantially in accordance with the Documentation after providing 30 days’ prior written notice of such failure to Box in which case Customer shall be entitled to a pro-rated refund of the corresponding unused pre-paid fees by Customer to Box for the Box Service.
11.2 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.
11.3 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 this Agreement.
11.4 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION 11, TO THE MAXIMUM EXTENT PERMITED BY APPLIACABLE LAW, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, AND ANY IMPLIED WARRANTY OF MERCHANTABILITY, 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.
Section 12. Indemnification
12.1 Indemnification by Box. Box shall 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) excluding any infringement or misappropriation arising solely from User Content or the use of the Box Service in connection with any other device or process not supplied by Box (“Claim Against Customer”), and shall 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. 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 shall defend Box against any third party claim that User Content, or Customer’s use of the Box Service in breach of this Agreement, 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 Box’s actions) or violates applicable law (“Claim Against Box”), and shall 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 indemnification, a 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 exclusive remedy against, and the Indemnifying Party’s sole liability to, the other party for any type of claim under this Section 12.
Section 13. Limitation of Liability
13.1 Limitation of Liability. EACH PARTY’S LIABILITY FOR A CLAIM OF ANY NATURE ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO BOX FOR THE SPECIFIC USE OF THE BOX SERVICE GIVING RISE TO SUCH CLAIM, AND IN NO EVENT SHALL EITHER PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE LESSER OF: (A) THE TOTAL FEES PAID BY CUSTOMER TO BOX UNDER THIS AGREEMENT, OR (B) USD $500,000.
2. Disclaimer of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
Section 14. Confidentiality
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 leveled “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 shall 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 and designs, technology and technical information, business and marketing plans, and business processes. Confidential Information other than Content, shall not include information that as shown by the Receiving Party’s records was: (a) already known to Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving party has become, generally available to the public; or (d) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
14.2 Protection. The Receiving Party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The Receiving Party may use 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. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a similar duty of confidentiality as that of the Receiving Party.
14.3 Permitted Disclosure. Neither Party shall disclose 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 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 noticed 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 or accountants of the parties; (c) in confidence, to accountants, banks, and financing sources and their advisors; (d) in connection with the enforcement of this Agreement or rights under this Agreement; or (e) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
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 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, Box may, during Term of Agreement, 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.
15.3 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 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 email@example.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Box, 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.
15.4 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.
15.5 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 upon prior written notice to Customer; Customer’s consent shall not be required in the event of a merger or sale of substantially all of the assets of Box wherein (a) such merger or sale does not materially increase the burdens imposed on Customer and (b) 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.
15.6 Integration. 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.
15.7 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.
15.8 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules. If any dispute, controversy or claim cannot be settled by the Parties within 30 days of written notice from either Party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to this Agreement, and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as noncontractual claims, 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 (**“Rules”**) by a single arbiter who will be (a) fluent in written and spoken English and (b) skilled and experienced in product distribution. The place of such arbitration will be in Palo Alto, California, U.S.A. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, nonappealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and judgment may be entered upon the arbitral award in any court of competent jurisdiction. The arbiter will issue a written opinion setting forth the arbiter’s decision and the reasons therefor within 30 days after the arbitration proceeding is concluded. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief with respect to its intellectual property rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to this Agreement will be subject to the jurisdiction of the state and federal courts of Santa Clara County, California, U.S.A.
15.9 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 (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God or other similar causes), 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 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.
(A Word version of this Agreement may be found at: https://sales.box.com/s/rxx711t4qv28hx0b0x8y)
ADDITIONAL SPECIFICATIONS FOR ACCOUNTS
Box will provide Customer with access to storage on Box servers connected to the Internet, in the amount specified in the applicable Order, subject to the terms and conditions of the Agreement. Customer will subdivide this storage among Accounts, creating up to the total number specified by the applicable Order, and assign them to End Users. End Users will have access to all features and privileges that Box generally makes generally available to its commercial user base of the Box Service as of the Effective Date, except (a) where such features and privileges are assigned under the Agreement to Administrator, in which event the terms of the Agreement will control; or (b) where such terms specifically conflict with the Agreement, in which case the Agreement supersedes those features/privileges. Managed Users may (i) upload and download files of any type, subject to the terms and conditions of the Agreement; (ii) access their stored files from any computer or Internet-enabled device with a web browser, without the need to install software; and (iii) share specific files or folders with others via a public URL.
Box will provide the Administrator with a login and password (which may be changed by the Administrator after initial login) for the Management Console. The Administrator will have the right to access the Management Console from a web browser. The Administrator will provide Box with an initial list of End User login and password information, for whom Box will create Accounts. Thereafter, the 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 Managed User Account is established, he/she may change their assigned password. Should a Managed User forget his/her password, the Administrator will have the right to reset it from the Management Console. However, Accounts for Managed Users may only be created through the End User Account. The Administrator will have the right to establish an upper limit on allowed usable storage per Account, on a case-by-case basis, up to the maximum capacity permitted under the Agreement, by an Order or as otherwise specified by Box. The Administrator will have the right to log into any of the Accounts at any time by clicking on a “View Account” button in the Management 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 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
Commencing on the effective date of the applicable Subscription Term, when purchased by Customer on the applicable Order, Box shall provide Service Level Credits and Support Services (as defined in the Agreement) in accordance with the Service Level Commitments Terms as defined at the Site. In the event of any conflict between the Agreement and the Service Level Commitment Terms, the Service Level Commitment Terms shall prevail.
B.1 Exhibit Definitions
“Box User Community” means Customer employees and third party business partners.
“Business Day(s)” means the Box support team’s standard working day (excluding public holidays), as further defined in section B.5.
“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 shall be defined as all users who input, extract or view data in the Box Service.
“Customer User Community” means all users who input, extract or view data in the Box Service. Box User Community may include Customer employees as well as third party business partners.
“Errors” means the material failure of the Box Service to conform to its functional specifications. Errors resulting from Customer’s improper use of the Box Service or Customer’s use of the Box Service with any hardware or software not identified as compatible by Box will not be considered Errors.
“Procedural Issues” means those issues that are to be addressed by Customer through adjustment of a specific business process to accomplish work in the Box Service. “Request” means a modification to the Box Service outside of the scope of the functional specifications.
“Scheduled Available Time” means 24 hours a day, 7 days a week excluding Scheduled Downtime and Recurring Downtime (each as defined in section B.4.2).
“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.
B.2 Scope of Service Level Commitments
The scope of this Exhibit is to define targeted service levels for the Box Service. This Exhibit does not extend to ongoing test or training instances provided to Customer by Box, or to services provided to Box or Customer by third parties, although cooperation will be sought in meeting the response levels embodied within the spirit of the Agreement.
B.3 Service Level Management
B.3.1 Hosted Facility
The Box hosted facility is located in an unmarked and confidential building. Video surveillance and security personnel continually monitor this facility. The Box Service environment is housed in a dedicated and secure cage within this facility. The Box hosted facility utilizes state-of-the-art biometric security to enforce physical access limitations to the Box Service environment. Access to this hosted facility is restricted to authorized operations personnel. Access to the Box Service cage within the hosted facility is also restricted to authorized operations personnel. Box utilizes granular levels of data security in all layers of the network, system and application environments to ensure that the safety and integrity of Customer’s data is not compromised. Security policies and procedures of the Box Service environment are constantly updated and the operations personnel monitor the security.
B.3.2 Proactive Monitoring
The Box Service environment is closely monitored with proactive solutions. Operations personnel are notified by the proactive monitoring solutions if there are any material Errors in the systems, Box Service, applications or network.
B.3.3 Operational Problem Resolution
Upon Error detection, the Box operations staff notifies the Box support staff, and proactive Customer notification occurs at this time if significant Customer impact has resulted or is expected. The Box operations staff then immediately works to resolve the cause of Error notification.
B.4 Guaranteed Availability Times
B.4.1 Guaranteed Up Times
Upon acceptance of an Order by Box, the Box Service will be available to Customer for 99.9% of all Scheduled Available Time, as calculated on a monthly basis and excluding Scheduled Downtime and Recurring Downtime as defined below, or circumstances beyond Box’s reasonable control (including, without limitation, any force majeure events described in the Agreement). Box cannot guarantee the performance and/or availability of local ISPs employed by Customer, or any network beyond the demarcation or control of Box.
Downtime refers to any periods within the Scheduled Available Time (excluding Scheduled Downtime and Recurring Downtime) during which the applications, systems and networks used to offer the Box Service are unavailable because of any outage that is unplanned. Scheduled downtime for planned upgrades and maintenance (**“Scheduled Downtime”**) will be detailed to Customer, and Box will use commercially reasonable efforts to provide at least 24 hours’ prior notice of such upgrade and maintenance. Wherever possible, this will be targeted for Sundays or off-peak hours and limited to a maximum of 4 hours. Any overrun beyond the planned completion time will be considered Downtime. Without limiting the foregoing, recurring Downtime of 4 hours per month on the third Saturday of the month from 12:00 A.M. to 4:00 A.M. PST (**“Recurring Downtime”**) is reserved by Box for routine maintenance to ensure facilitation of a solution.
|Uptime achieved||Credit available|
|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.% 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%|
B.4.5 Availability of Credits
Customers who are late on payments for any Box services or products are not eligible to receive SLC Credits. SLC Credits are issued as Box Service credits on future billing cycles or as a refund against annual fees paid. All SLC Credits for which Customer is eligible will be applied to Customer’s account or refunded, as applicable, within 30 days following the month in which Customer is eligible for such SLC Credits or refunds. In no event will SLC Credits in any month exceed 100% of Customer’s Fees for the month in which the refund or SLC Credits are paid.
B.5 Support Services
Box phone and email support will be operational 24 hours a day, Monday through Sunday, excluding Box corporate holidays and national U.S. holidays. The Customer User Community will address all problems through the Customer Core Group. The Customer Core Group will:
1. Validate and recreate Errors;
2. Resolve Procedural Issues;
3. Provide first-level User Administration Support;
4. Report all unresolved problems to Box Support; and
5. Provide additional information for testing and analysis purposes to assist with issue resolution.
B.5.1 Case Prioritization
Cases accepted by the support team will be classified as an Error or a Request and assigned a priority. The following priorities and their meanings are used in the Agreement:
1. Level 1 – Major Business Impact – Critical – Box Service/Function Down. This is the highest category and indicates that the business operations are halted, the Box Service is
down, and Customer is unable to perform its primary business function.
2. Level 2 – Significant Business Impact – Major – Functionality Impaired. Used to denote problems that have a significant impact on Customer’s ability to conduct part of its
business, but does not impair mission-critical business functions.
3. Level 3 – Restricted Business Impact – Significant – Minor Functionality Impairment. Used to describe calls that are restricted to a single user or, if more than one user is affected,
where a workaround is available allowing Customer to continue to conduct business.
4. Level 4 – No Business Impact – General Questions/Issues – Basic Support Question. These calls relate to faults or requests that have no discernible impact on Customer’s ability to conduct normal business.
B.5.2 Response Times
All critical and high-priority issues will receive an acknowledgement within 1 hour of receipt (Level 1) or within 4 hours of receipt (Level 2) during operational support hours. This will include the priority assigned to the case, any actions taken, immediate resolution if available, and any escalation plans. All Level 3 and Level 4 cases will receive an acknowledgment as specified below.
|Priority Level||Acknowledgement Time|
|Level 1 – Major||Within 1 hour of receipt of notification of issue|
|Level 2 – Significant||Within 4 hours of receipt of notification of issue|
|Level 3 – Restricted||Within 1 hour of receipt of notification of issue|
|Level 4 – No Impact||Within 5 Business Days of receipt of notification of issue or the next major release|
B.5.3 Resolution Times
In view of the variety of issues that can arise, there can be no guarantee of fix times, although every effort will be made to minimize disruption to the availability of the Box Service. The target time for problem resolution is:
|Priority Level||Acknowledgement Time|
|Level 1 – Major||Within 24 hours of acknowledgement|
|Level 2 – Significant||Within 1 Business Day of acknowledgement|
|Level 3 – Restricted||Within 5 Business Days of acknowledgement|
|Level 4 – No Impact||Will be determined by action plan|
Error correction is subject to verification and reproduction of the Error by Box, with Customer’s reasonable assistance verifying and reproducing the Error. Error correction may include a temporary workaround, patch or bypass supplied by Box, or a computer or operating routine by Customer, in order to diminish or avoid the effect of the Error. Once Box has identified corrective measures to fix the Error, Customer will be required to test and accept the fix, work on data issues if data has been impacted, and agree upon a mutually agreeable time when the fix can be implemented on the production platform.
Box Service Agreement