Terms of Service
These Whatbox Terms of Service (together, the "Agreement") are entered into by Whatbox Inc. ("Whatbox") and the entity or person agreeing to these terms ("Customer") and govern Customer's access to and use of the Services.
This Agreement is effective when Customer clicks to accept it (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.
1. Provision of the Services.
1.1 Services Use. During the term, Whatbox will provide the Services in accordance with the Agreement, including the SLAs, and Customer may use the Services, and integrate the Services into any Customer Application that has material value independent of the Services, in accordance with the Agreement.
1.2 Accounts. Customer must have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. Whatbox has no obligation to provide multiple accounts to Customer.
(a) To the Services. Whatbox may make commercially reasonable updates to the Services from time to time. Whatbox will inform Customer if Whatbox makes a material change to the Services that has a material impact on Customer's use of the Services provided that Customer has subscribed with Whatbox to be informed about such change.
(b) To the Agreement Whatbox may make changes to this Agreement (including the URL Terms) and pricing from time to time. Unless otherwise noted by Whatbox, material changes to the Agreement will become effective 30 days after they are posted, except where required by applicable law, in which case they will be effective immediately. Whatbox will provide at least 30 days' advance notice for materially adverse changes to any SLAs by (i) sending an email to the Notification Email Address or (ii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, Customer may stop using the Services. Customer may also terminate this Agreement for convenience under Section 8.3 (Termination for Convenience). Customer's continued use of the Services after such material change will constitute Customer's consent to such changes. Whatbox will post any modification to this Agreement to https://whatbox.ca/policies/terms.
(c) Discontinuation of Services Whatbox will notify Customer at least 3 months before discontinuing any Service (or associated material functionality) unless Whatbox replaces such discontinued Service or functionality with a materially similar Service or functionality. Nothing in this Section 1.3(c) (Discontinuation of Services) limits Whatbox's ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section 1.3(c) (Discontinuation of Services) does not apply to pre-general availability Services, offerings, or functionality.
2. Payment Terms.
2.1 Prepaid Billing. Unless otherwise specified by Whatbox, Whatbox shall offer the Services on a prepaid basis only. Accordingly, Whatbox shall bill and collect payment for the Services in advance.
(a) Customer is responsible for any Taxes, and will pay Whatbox for the Services without any reduction for Taxes. If Whatbox is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Whatbox, unless Customer provides Whatbox with a timely and valid tax exemption certificate in respect of those Taxes.
(b) Customer will provide Whatbox with any applicable tax identification information that Whatbox may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Whatbox for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
2.3 Payment Disputes & Refunds. Any payment disputes must be submitted before the payment due date. If the parties determine that certain billing inaccuracies are attributable to Whatbox, Whatbox will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Whatbox will apply the credit memo amount to a disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Refunds (if any) are at Whatbox's discretion and will only be in the form of credit for the Services. Nothing in this Agreement obligates Whatbox to extend credit to any party. Refer to the Refund Policy for more details.
2.4 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Whatbox in collecting such delinquent amounts. Further, if Customer's payment for the Services is overdue, Whatbox may Suspend the Services.
2.5 No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for Whatbox to provide a purchase order number on Whatbox's invoice (or otherwise).
3. Customer Obligations.
3.1 Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services comply with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Whatbox of any unauthorized use of, or access to, the Services, Account, or Customer's password of which Customer becomes aware. Whatbox reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Applications, Hosted Data, or Projects.
3.2 Privacy. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services and (b) Whatbox's accessing, storing, and processing of data provided by Customer (including Hosted Data, if applicable) under the Agreement.
3.3 Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the AUP; (iii) in a manner intended to avoid incurring Fees (including creating multiple Customer Applications, Accounts, or Projects to simulate or act as a single Customer Application, Account, or Project (respectively)) or to circumvent Service-specific usage limits or quotas; (iv) in a manner that breaches, or causes the breach of, Export Control Laws; or (v) to transmit, store, or process health information subject to Personal Information Protection and Electronic Documents Act (PIPEDA) regulations.
3.4 Documentation. Whatbox may provide Documentation for Customer's use of the Services.
3.5 Copyright. Whatbox responds to notices of alleged copyright infringement and will terminate the Accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the Copyright Act, R.S.C. 1985, c. C-42.
3.6 Data Backup & Recovery. Customer is responsible for independent backup of data stored on Whatbox's servers; unless Customer has arranged for Services which include backup services in which case data backup will be performed under the terms of the specific data backup plan chosen by Customer. Whatbox shall never be held liable for failure to recover data in the event of any sort of failure, and shall never be held accountable financially or otherwise for loss of data.
4.1 AUP Violations. If Whatbox becomes aware that Customer's or any End User's use of the Services violates the AUP, Whatbox will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Whatbox's request, then Whatbox may Suspend all or part of Customer's use of the Services until the violation is corrected.
4.2 Other Suspension. Notwithstanding Section 4.1 (AUP Violations), Whatbox may immediately Suspend all or part of Customer's use of the Services if (a) Whatbox reasonably believes Customer's or any End User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the Whatbox network or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Whatbox reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions). Whatbox will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, Whatbox will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Protection of Hosted Data
5.1 Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Hosted Data and Customer Applications, and Whatbox owns all Intellectual Property Rights in the Services and Software.
5.2 Protection of Hosted Data. Whatbox will only access or use Hosted Data to provide the Services and technical support to Customer or as otherwise instructed by Customer and will not use it for any other Whatbox products, services, or advertising. Whatbox has implemented and will maintain safeguards to protect Hosted Data, as further described in the Security Policy.
6. Customer Support
Customer understands that technical support provided by Whatbox is on an as-is, as-available basis. Whatbox makes no guarantees that technical support will be available or able to resolve Customer's problem.
7. Confidential Information.
7.1 Obligations. The recipient will only use the disclosing party's Confidential Information to exercise the recipient's rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.
7.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.
8. Term and Termination.
8.1 Agreement Term. The term of this Agreement (the "Term") will begin on the Effective Date and continue until the Agreement is terminated as stated in this Section 8 (Term and Termination).
8.2 Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
8.3 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and, upon termination, must cease use of the applicable Services. Whatbox may terminate this Agreement for its convenience at any time with 30 days' prior written notice to Customer.
8.4 Termination Due to Applicable Law; Violation of Laws. Whatbox may terminate this Agreement immediately on written notice if Whatbox reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Whatbox to violate any applicable law(s).
8.5 Effect of Termination. If the Agreement is terminated, then (a) all rights and access to the Services will terminate (including access to Hosted Data, if applicable), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Whatbox are immediately due upon Customer's receipt of the final electronic bill or as stated in the final invoice.
9. Representations and Warranties.
Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.
SERVICES PROVIDED BY WHATBOX ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, WHATBOX DOES NOT MAKE AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (A) ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES OR SOFTWARE AND (B) ANY REPRESENTATIONS ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES.
11. LIMITATION OF LIABILITY.
11.1 LIMITATION ON INDIRECT LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 11.3 (UNLIMITED LIABILITIES), NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT FOR ANY (A) INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR (B) LOST REVENUES, PROFITS, SAVINGS, OR GOODWILL.
11.2 LIMITATION ON AMOUNT OF LIABILITY. EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT IS LIMITED TO THE FEES CUSTOMER PAID DURING THE 12-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY OR 100 CANADIAN DOLLARS (OR THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW), WHICHEVER IS LESS.
11.3 UNLIMITED LIABILITIES. NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS EITHER PARTY'S LIABILITY FOR:
(A) ITS FRAUD OR FRAUDULENT MISREPRESENTATION;
(B) ITS OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION);
(C) ITS INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS;
(D) ITS PAYMENT OBLIGATIONS UNDER THE AGREEMENT; OR
(E) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS WHATBOX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, OBLIGATIONS, LOSSES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) INCURRED BY WHATBOX ARISING FROM OR DUE TO CLAIMS MADE BY THIRD PARTIES (INCLUDING CUSTOMERS OF THE CUSTOMER) THAT ARE RELATED TO OR ARISING OUT OF:
- THE CUSTOMER'S USE OF AND ACCESS TO THE SERVICE
- THE CUSTOMER'S VIOLATION OF ANY TERM OF THE TERMS
- THE CUSTOMER'S VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT
- ANY CLAIM THAT THE CUSTOMER'S HOSTED DATA CAUSED DAMAGE TO A THIRD PARTY
13.1 Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Whatbox must be sent to email@example.com. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.
13.2 Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.
13.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
13.4 Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.
13.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
13.6 Subcontracting. Whatbox may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
13.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
13.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
13.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
13.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
13.11 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
13.12 Governing Law. This Agreement will be construed in accordance with and governed by the laws of the province of Ontario and the federal laws of Canada.
13.13 Amendments. Except as stated in Section 1.3(b) (Modifications: To the Agreement), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
13.14 Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights; Protection of Hosted Data), Section 7 (Confidential Information), Section 8.5 (Effect of Termination), Section 11 (Disclaimer), Section 12 (Limitation of Liability), Section 13 (Indemnification), and Section 14 (Miscellaneous).
13.15 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. The URL Terms are incorporated by reference into the Agreement. After the Effective Date, Whatbox may provide an updated URL in place of any URL in this Agreement.
13.16 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): (1) the Agreement (excluding the URL Terms) and (2) the URL Terms.
13.17 Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.
13.18 Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.
13.19 Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
- "Account" means Customer's Whatbox account.
- "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
- "AUP" means the then-current acceptable use policy for the Services stated at https://whatbox.ca/policies/acceptable_use
- "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- "Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Hosted Data is considered Customer's Confidential Information.
- "Control" means control of greater than 50 percent of the voting rights or equity interests of a party.
- "Customer Application" means a software program that Customer creates or hosts using the Services.
- "Data Handling Policy" means the then-current policy for handling Hosted Data stated at https://whatbox.ca/policies/data_handling
- "Documentation" means the Whatbox documentation (as may be updated from time to time) in the form generally made available by Whatbox to its customers for use with the Services at https://whatbox.ca/wiki.
- "End Users" means the individuals who are permitted by Customer to use the Services. For clarity, End Users may include employees of Customer Affiliates and other authorized third parties.
- "Fee Accrual Period" means a calendar month or another period specified by Whatbox.
- "Fees" means the applicable fees for each Service or Software plus any applicable Taxes. The Fees for each Service are stated at https://whatbox.ca/plans (incorporated into the Agreement by this reference).
- "High Risk Activities" means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
- "Hosted Data" means data provided to Whatbox by Customer or End Users through the Services under the Account.
- "including" means including but not limited to.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
- "Legal Process" means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
- "Liability" means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
- "Notification Email Address" means the email address(es) designated by Customer in the Admin Console.
- "Project" means a collection of Whatbox Cloud Platform resources configured by Customer via the Services.
- "Refund Policy" means the then-current policy for refund eligibility stated at https://whatbox.ca/policies/refund
- "Security Policy" means the then-current policy for protecting the security and privacy of Customers and End Users stated at https://whatbox.ca/policies/security
- "Services" means the then-current services described as computer data storage and content distribution.
- "SLA" means each of the then-current service level agreements at https://whatbox.ca/policies/sla
- "Software" means any downloadable tools, software development kits, or other such computer software provided by Whatbox in connection with the Services, and any updates Whatbox may make to such Software from time to time.
- "Suspend" or "Suspension" means disabling or limiting access to or use of the Services or components of the Services.
- "Taxes" means all government-imposed taxes, except for taxes based on Whatbox's net income, net worth, asset value, property value, or employment.
- "Term" has the meaning stated in Section 8.1 (Agreement Term) of this Agreement.
- "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
- "Traffic Accounting" means the traffic accounting processes described at https://whatbox.ca/policies/traffic
- "URL Terms" means, collectively, the AUP, SLA, Data Handling Policy, Security Policy, Traffic Accounting, and Refund Policy.