TERMS OF USE

Terms of Use

Last updated: February 07, 2022;

The following terms of use, together with any documents and additional terms they expressly incorporate by reference (collectively, the “Terms of Use”), govern your use of: (a) our website offered on or through https://hellocubby.com (the “Cubby Website”); (b) any mobile device software provided by us to you (the “Cubby Application”); (c) any text, pictures, media, data, or other information, materials, or content (collectively, the “Content”) contained on or provided through the Cubby Website or Cubby Application (other than User Data, as defined below); and (d) all other services, including Storage Services (as defined below), provided by us to you through the Cubby Website or the Cubby Application (collectively, the “Cubby Solution”).

These Terms of Use form an agreement between HelloCubby Inc. (“Cubby”, “us”, “we”, “our”) and you. The term “you” or “User” refers to the person browsing, installing, downloading, or otherwise using the Cubby Solution (“use” or “using” in these Terms of Use will mean any of the foregoing).

BY USING THE CUBBY SOLUTION, OR BY CLICKING TO ACCEPT THESE TERMS OF USE, YOU: (A) REPRESENT AND WARRANT THAT: (I) YOU HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION; (II) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS; (III) YOU ARE USING THE CUBBY SOLUTION ON YOUR OWN BEHALF AND ARE THE OWNER OF ALL PROPERTY THAT YOU STORE WITH US; AND (IV) ALL INFORMATION SUPPLIED BY YOU TO US THROUGH THE CUBBY SOLUTION IS TRUE, ACCURATE, CURRENT, AND COMPLETE; AND (B) AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 1. IF YOU DO NOT AGREE TO THESE TERMS OF USE (INCLUDING THE ADDITIONAL USER TERMS REFERENCED BELOW), YOU MUST NOT USE THE CUBBY SOLUTION.

1. Changes to these Terms of Use and the Cubby Solution; Suspension Rights

(a)   Except where prohibited by applicable law, we reserve the right, in our sole discretion, to change any provision of these Terms of Use, including any Additional User Terms (as defined below), at any time. When we change these Terms of Use, we will: (i) place a notice on the Cubby Website or provide a notice through the Cubby Application, send you an email, or notify you by some other means if required by applicable law; (ii) post a new version of these Terms of Use to the Cubby Website or through the Cubby Application; and (iii) update the “Last Updated” date at the top of these Terms of Use. We may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Cubby Solution is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Cubby Solution. Otherwise, your continued use of the Cubby Solution after any changes to these Terms of Use indicates your acceptance of such changes.

(b)   We reserve the right to modify the Cubby Solution at any time, provided that we will endeavour not to materially decrease the level of service or functionality of the then-current version of the Cubby Solution.

(c)   We may, at our discretion, suspend your use of the Cubby Solution: (i) for scheduled maintenance; (ii) if you violate any provision of these Terms of Use; (iii) if we believe that any of your User Account (as defined below) information is not true, accurate, current or complete or your use of the Cubby Solution is not in compliance with these Terms of Use (including the Additional User Terms); or (iv) to address any emergency security or safety concerns. Without limiting any rights which we may otherwise have, we reserve the right to take any action, in our sole discretion, to ensure the security of the Cubby Solution and your User Account, including disabling or terminating your User Account, changing your password, or requesting additional information to authorize transactions on your User Account, at any time in our sole discretion. If we disable access to your User Account, you may be prevented from using the Cubby Solution.

2. User Accounts; Storage Services

(a)   To use certain features of the Cubby Solution, or to access the Storage Services, you must: (i) be an occupant of a building then-currently offering Cubby’s smart locker system (the “Cubby Smart Locker System”); and (ii) successfully sign up for a User account (a “User Account”), which may require the provision of your full name, address (including unit number), email address, phone number, household occupancy information, and password login credentials. Upon the creation of a User Account, you will be able to access Cubby’s valet storage solution, which enables occupants of eligible buildings to deposit items for off-site storage as further described below.

(b)   You agree that Cubby is entitled to act on instructions received through your User Account. Cubby is not responsible for any actions taken or transactions made to or from your User Account, whether by you or any other person using your User Account. You are solely responsible for any and all use of your User Account and all activities that occur under or in connection with your User Account.

(c)   Upon the submission of each Storage Service Request (as defined below), and in consideration for the payment of all applicable Fees (as defined below), Cubby will provide the following services (collectively, the “Storage Services”):

(i)   delivering to a designated locker within the Cubby Smart Locker System (each, a “Designated Locker”) located on-site at the building where the User resides, as identified in the applicable User Account (the “Delivery Address”), the number of empty storage boxes (each, a “Storage Box”) and, if applicable, related packing supplies, specified in the corresponding Storage Service Request, subject always to the availability of storage boxes, packing supplies, and lockers at the applicable Delivery Address;

(ii)   collecting the packed Storage Box(es) from the Designated Locker at the Delivery Address on or around the pick-up date requested by such User through the Cubby Application, subject always to the availability of lockers at the applicable Delivery Address;

(iii)   transporting to, and storing the packed Storage Box(es) in, off-site storage facilities designated by Cubby; and

(iv)   upon the User’s request via the Cubby Application, returning the packed Storage Box(es) to the Designated Locker at the Delivery Address on or around the drop-off date requested by such User through the Cubby Application, subject always to the availability of lockers at the applicable Delivery Address.

(d)   You acknowledge and agree that Cubby’s performance of the Storage Services is dependent on, and you will be responsible for, the performance of the following obligations:

(i)   identifying the number of Storage Box(es) required;

(ii)   retrieving Storage Box(es) from the Designated Locker during designated pick-up windows and properly packing your items in such Storage Box(es) (such packed items, the “User Items”);

(iii)   photographing the User Items;

(iv)   scheduling a pick-up window using the Cubby Application;

(v)   delivering the packed Storage Box(es) to the Designated Locker prior to the scheduled pick-up window;

(vi)   requesting the return of packed Storage Box(es) and scheduling a drop-off window for the return of packed Storage Box(es) using the Cubby Application;

(vii)   retrieving the packed Storage Box(es) from the Designated Locker promptly following the scheduled drop-off window; and

(viii)   returning the empty Storage Box(es) to the Designated Locker within the designated window,

in each case, in accordance with all applicable Additional User Terms.

(e)   Cubby will only pick up Storage Boxes that were supplied by Cubby. You will not use, or deliver to the Designated Locker, loose items, your own storage boxes, or any other storage boxes or other item that you did not receive from Cubby.

(f)   Cubby will not be responsible for any damage caused by or arising from your failure to properly pack User Items. Cubby reserves the right to refuse to accept any Storage Box that appears to be packed improperly, to contain any prohibited items, or otherwise is not in compliance with any Additional User Terms.

(g)   You acknowledge and agree that any dates or times given for delivery, collection, or return of Storage Boxes are estimates and Cubby will not be liable for any delay in such delivery, collection, or return.

3. Acceptance and Cancellation of Storage Service Requests

You agree that your submission of a request for Storage Services through your User Account (each, a “Storage Service Request”) is an offer to purchase Storage Services under these Terms of Use. All Storage Service Requests must be accepted by us via the Cubby Application. We may choose not to accept, or may cancel, any Storage Service Request in our sole discretion, even after we send you a confirmation of your Storage Service Request and details of the Storage Services you have requested. Without limiting the generality of the previous sentence, Cubby may postpone or cancel any delivery, collection, or return of Storage Boxes if Cubby believes, in its sole discretion, that it may endanger any person, including as a result of severe weather conditions or limited access to the Delivery Address.
If we cancel your Storage Service Request, we will have no obligation to provide, and you will have no obligation to pay for, the cancelled portion of the Storage Services.

4. Inspection Rights; Return of User Items

(a)   Cubby will not open any Storage Boxes to inspect the User Items without notifying you in advance, unless: (i) we are required to do so by applicable law, governmental or regulatory authority, or court order; or (ii) we consider it necessary to do so, in our sole discretion, in the event of an emergency, to prevent injury or damage to persons or property, or if we reasonably believe that you have not complied with these Terms of Use.

(b)   Cubby may refuse to accept any Storage Box(es), or may return any Storage Box(es), at your cost, if, in our sole discretion, the storage of any User Items therein would represent a risk to the safety of any person or the security of a storage facility or any other items stored at a storage facility or if such storage is otherwise in contravention of any Additional User Terms.

5. Cubby Policies and Additional Terms

Your use of certain functionalities or services provided in or through the Cubby Solution, including the Storage Services, may be subject to the Cubby policies as set out at Policies URL's (collectively, the “Cubby Policies”) and other terms and conditions presented to you by Cubby or its service providers on or through the Cubby Solution (such terms and conditions, together with the Cubby Policies, as amended from time to time, are the “Additional User Terms”). The Additional User Terms are incorporated herein by reference and form part of these Terms of Use. If there is any conflict or inconsistency between the Additional User Terms and these Terms of Use, then the provisions of these Terms of Use will govern to the extent of such conflict or inconsistency, unless the applicable Additional User Terms expressly state that the conflicting term in these Terms of Use does not apply.

6. Fees

In consideration for Cubby’s performance of the Storage Services, you agree to pay the fees and, if applicable, additional charges set out in Pricing Policy (the “Fees”), in accordance with the invoice and payment terms set out therein. All prices, discounts, and promotions posted on the Cubby Website are subject to change without notice. The Fees do not include applicable taxes, which you are responsible for paying. All such taxes will be added to your total Fees. We reserve the right to correct any errors, inaccuracies, or omissions in the Fees at any time and to cancel any Storage Service Requests arising from such occurrences.

7. Third Party Payment Processor

By submitting a Storage Service Request, you are agreeing to pay the Fees, and all applicable charges and taxes, by credit card. The collection, processing, and clearance of payments, and distribution of funds to Cubby, will be performed by a third-party payment processor (the “Payment Processor”) and will be subject to the terms, conditions and privacy policies, if any, of the Payment Processor in addition to these Terms of Use. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. We reserve the right to correct any errors or mistakes that any Payment Processor makes even if it has already requested or received payment. Cubby’s current Payment Processor is Stripe. For more information on Stripe, and to review Stripe’s terms and conditions, please visit Stripe’s website: https://stripe.com.

8. Term; Termination; Survival

(a)   These Terms of Use will commence on the day you first use the Cubby Solution and will remain in effect until terminated by either party in accordance with the provisions of these Terms of Use (the “Term”).

(b)   Except where prohibited by law, we may terminate these Terms of Use at any time (including if you no longer reside in a building then-currently offering a Cubby Smart Locker System) and with immediate effect by giving notice to you, at our discretion, by email (at your current email address on file with us) or through the Cubby Solution.

(c)   You may terminate these Terms of Use at any time and with immediate effect by deleting your User Account, ceasing use of the Cubby Solution and uninstalling and deleting the Cubby Application and any local Content made available to you through the Cubby Solution. For greater certainty, if you continue to use the Cubby Solution after these Terms of Use have been terminated or have not claimed any Storage Box(es) in accordance with 8(d)(i) below, these Terms of Use will continue to apply.

(d)   Effect of Termination.

(i)   If either party elects to terminate these Terms of Use, you must request the return of all packed Storage Box(es) and schedule a drop-off window for the return of packed Storage Box(es) using the Cubby Application and follow the subsequent steps set out in Section 2(d). Storage Box(es) that are not returned following a request to terminate these Terms of Use will be subject to the applicable Additional User Terms and may be considered abandoned in accordance with such terms or otherwise result in additional charges.  

(ii)   Without limiting the generality of the foregoing, Cubby will have the right to withhold, auction off, or otherwise dispose of or any User Items as set out in the applicable Additional User Terms.

(e)   The following Sections, together with any other provision of these Terms of Use which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination, will survive termination of these Terms of Use for any reason: Sections 5, 7, 8(d), 9, 11, 13 to 24, and this Section 8(e).

9. Ownership of the Cubby Solution

(a)   Neither these Terms of Use nor your use of the Cubby Solution grants you ownership in the Cubby Solution, including any Storage Box(es), or the Content you access through the Cubby Solution. These Terms of Use do not grant you any right to use Cubby’s trademarks or other brand elements. All right, title and interest, including intellectual property rights, in and to the Cubby Solution and all other Content provided by us hereunder, and any updates, modifications, adaptations, translations, customizations or derivative works thereof or thereto, will remain the sole property of Cubby (or our third-party suppliers, if applicable).

(b)   The Cubby Solution and all materials provided by us hereunder are made available or licensed and not “sold” to you.

(c)   All rights not expressly granted to you in these Terms of Use are reserved by Cubby.

10. Right and License to use the Cubby Solution

We grant you a non-exclusive, non-transferable, non-sublicensable and revocable right and licence during the Term to use the Cubby Solution, subject to and in accordance with these Terms of Use.

11. User Data and Privacy

(a)   You grant to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns, a fully paid up, irrevocable, worldwide, non-exclusive, royalty-free, transferable and sublicensable licence to collect, store, and use any Content that you load, transmit to or enter into, or that we collect from, the Cubby Website or Cubby Application (collectively, “User Data”): (i) to develop, enhance and make available the Cubby Solution; and (ii) to produce Content that is not identified as relating to a particular individual or company (such Content, the “Aggregated Data”).

(b)   We and our affiliates and service providers, and each of their and our respective licensees, successors and assigns are free to create, use and disclose Aggregated Data during and after the Term for any purpose and without obligations of any kind.

(c)   Please review our current privacy policy, available at Privacy Policy (“Privacy Policy”), which contains important information about our practices in collecting, storing, using and disclosing information about identifiable individuals (“Personal Information”), and which is hereby incorporated into and forms part of these Terms of Use.

(d)   You understand and agree that you, and not Cubby, are fully responsible for all User Data.

(e)   You represent and warrant to us that: (i) your User Data will only contain information (including Personal Information) in respect of which you have provided all necessary notices and disclosures, obtained all applicable third-party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to make available such User Data on or through the Cubby Solution; (ii) you own or control the appropriate rights in and to your User Data, including any intellectual property owned by third parties; and (iii) you will not submit, upload, or otherwise make available via the Cubby Solution, any User Data that: (A) you do not have the rights necessary to use, transmit, publish, or to grant us the licenses as described herein; (B) infringe, misappropriate, or otherwise violate any intellectual property, publicity or other rights of any third party; or (C) breach or violate any applicable laws or these Terms of Use.

12. Your Responsibilities

Without limiting any User responsibilities set out elsewhere in these Terms of Use (including in any Additional User Terms), you agree to:

(a)   keep your User Account and all other login information confidential and secure, and not to grant access to or otherwise share your User Account with any other person;

(b)   not register for more than one account, register for an account on behalf of an individual other than yourself, or register for an account on behalf of any other person for any commercial purposes;

(c)   keep your address, email address and your contact details associated with your User Account current and accurate; and

(d)   promptly notify us if you become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving your User Account, including any loss, theft, or unauthorized disclosure or use of any User Account credentials.

13. No Unlawful or Prohibited Use

You will not use the Cubby Solution in violation of these Terms of Use, any Additional User Terms, or of any applicable law. You will not, without our prior written permission, use the Cubby Solution for any purpose other than in accordance with these Terms of Use. Without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:

(a)   gain unauthorized access to the Cubby Solution or bypass any measures we may use to prevent or restrict access to the Cubby Solution;

(b)   send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Cubby Solution any Content that: (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter any computer system or data; (ii) is false, inaccurate, intentionally misleading, or impersonates any other person; or (iii) violates any applicable laws or would give rise to civil or criminal liability;

(c)   use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Cubby Solution or any part thereof or otherwise attempt to discover any source code;

(d)   use the Cubby Solution for the purpose of building a similar or competitive product or service;

(e)   violate the terms of use of any third-party website that is linked to the Cubby Solution; or

(f)   authorize, permit, enable, induce or encourage any third party to do any of the above.

14. Security of Communications; Malicious Code and Security

We do not guarantee the confidentiality of any communications made by you through the Cubby Solution. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Cubby Solution nor do we guarantee that the Cubby Solution is compatible with your computer system or mobile device or that the Cubby Solution, or any links from the Cubby Solution, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer systems and mobile devices.

15. Feedback

You agree that nothing in these Terms of Use will restrict our right to use, disclose, publish or otherwise exploit any suggestion or idea provided by you in relation to the Cubby Solution (such suggestions or ideas, “Feedback”), without compensation to you and without any obligation to you.

16. Third-Party Content, Websites or Services

The Cubby Solution may provide or publish links or access to third-party Content, websites, or services. Likewise, we may allow you to use the Cubby Solution from third-party systems. Cubby does not represent that it has reviewed such third-party websites and is not responsible for them or any Content appearing on them. Trademarks displayed in conjunction with such third-party Content, websites, or services are the property of their respective owners. Cubby does not endorse any third-party Content, websites, services, or systems, or guarantee or warrant their quality, durability, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party Content, websites, services, or systems are not under Cubby’s control, and if you choose to access any such Content, websites, or services, or to use the Cubby Solution from such systems, you do so entirely at your own risk. You acknowledge that you may be required to accept terms of use applicable to third-party Content, websites, services, or systems and agree to accept and comply with any such terms of use.

17. Disclaimer

THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS OF USE (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR CONDITION, THE SCOPE AND DURATION OF SUCH WARRANTY OR CONDITION WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE CUBBY SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED OR AS OTHERWISE REQUIRED BY LAW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE CUBBY SOLUTION WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING ANY WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, DURABILITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT, AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE CUBBY SOLUTION IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THIRD-PARTY COMMUNICATIONS AND ANY THIRD-PARTY WEBSITES OR CONTENT ACCESSED THROUGH THE CUBBY SOLUTION.

18. Limitation of Liability

(a)   TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, LICENSEES AND SERVICE PROVIDERS AND ANY SUCCESSORS AND ASSIGNS OF THE FOREGOING (COLLECTIVELY WITH CUBBY, THE “CUBBY PARTIES”) BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR LOST PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OR DAMAGE TO USER ITEMS (SUBJECT TO SECTION 18(c)) OR OTHER PROPERTY, FINES, FEES, PENALTIES OR OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE CUBBY SOLUTION OR THE INABILITY TO MAKE USE OF THE CUBBY SOLUTION, OR THESE TERMS OF USE. IF YOU ARE DISSATISFIED WITH THE CUBBY SOLUTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE CUBBY SOLUTION.

(b)   SUBJECT TO SECTION 18(c), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS OF USE, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE CUBBY SOLUTION, EXCEED THE FEES PAID OR PAYABLE IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

(c)   NOTWITHSTANDING SECTION 18(b), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUBBY’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH ANY LOSS OR DAMAGE TO ANY USER ITEMS WILL BE LIMITED TO THE AMOUNT SPECIFIED IN THE PROTECTION PLAN (AS DEFINED IN THE APPLICABLE ADDITIONAL USER TERMS) APPLICABLE TO THE STORAGE BOX(ES) IN WHICH SUCH USER ITEMS WERE STORED, SUBJECT ALWAYS TO ANY EXCEPTIONS SPECIFIED IN THE APPLICABLE ADDITIONAL USER TERMS. STORAGE OF USER ITEMS THAT EXCEED THE VALUE OF THE APPLICABLE PROTECTION PLAN IS DONE ENTIRELY AT YOUR OWN RISK.

(d)   THE LIMITATIONS ON LIABILITY AND REMEDIES SET OUT IN THIS SECTION 18 ARE A CRITICAL PART OF THESE TERMS OF USE, AND CUBBY WOULD NOT OFFER THE CUBBY SOLUTION (INCLUDING THE STORAGE SERVICES) IN THE ABSENCE OF SUCH TERMS.

19. Force Majeure

Without limiting the foregoing, under no circumstances will Cubby be held liable for any delay or failure in performance of its obligations under these Terms of Use, including in connection with any Storage Services, in any way resulting from acts of nature, forces, or causes beyond our or their reasonable control, including Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, pandemics, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.

20. Indemnification

You will defend, indemnify and hold harmless the Cubby Parties from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with: (a) your User Data; (b) use of the Cubby Solution by you or anyone on your behalf (except to the extent prohibited by law); or (c) your breach of any provision of these Terms of Use. Cubby reserves the right, at its own cost, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defences.

21. General Provisions

(a)   Choice of Law. Except as restricted by applicable law, these Terms of Use will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein (without giving effect to any principles of conflicts of law) and such laws apply to your use of the Cubby Solution, notwithstanding your domicile, residency or physical location. You will only use the Cubby Solution in jurisdictions where the Cubby Solution may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario, Canada in all disputes arising out of or relating to the use of the Cubby Solution. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these Terms of Use. This choice of jurisdiction does not prevent us from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

(b)   Entire Agreement. These Terms of Use (including the Additional User Terms) constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Cubby Solution. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

(c)   Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(d)   Severable. If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Use and all other provisions of these Terms of Use will remain in full force and effect.

(e)   Assignment. You will not assign these Terms of Use to any third party without our prior written consent. We may assign these Terms of Use or any rights under these Terms of Use to any third party without your consent. Any attempted assignment, subcontract, delegation, or transfer in violation of this Section will be null and void. The terms of these Terms of Use will be binding upon permitted assignees. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.

(f)   Subcontractors. We may delegate or subcontract all or any part of our obligations hereunder to any person, including our affiliates, without prior written notice to you. The delegating or subcontracting of all or any part of Cubby’s obligations hereunder will not relieve Cubby from any obligation or liability under these Terms of Use.

(g)   Dispute Resolution. If you believe that Cubby has not adhered to these Terms of Use, please contact Cubby using the contact information listed below. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.

(h)   English Language. It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

22. Contact

If you have any questions or comments regarding these Terms of Use, please contact us at info@hellocubby.com.

23. Apple App Store Additional License Terms

If the Cubby Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use:

The parties acknowledge these Terms of Use are concluded between the parties, and not with Apple. The responsibility for the Cubby Solution and content thereof is governed by these Terms of Use.

Notwithstanding anything to the contrary hereunder, you may use the Cubby Solution only on an iPhone, iPad, iPod touch, or other compatible Apple device that you own or control.

You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Cubby Solution.

In the event of any failure of the Cubby Solution to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Cubby Solution (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Cubby Solution, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Use.

Any claim in connection with the Cubby Solution related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Use, and Apple is not responsible for such claim.

Any third-party claim that the Cubby Solution or your possession and use of the Cubby Solution infringes that third party’s intellectual property rights will be governed by these Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

You represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

You may contact us in writing regarding any notices, questions, complaints or claims with respect to the Cubby Solution. [Note: Notice information to be set out below.]

Name: [X]
Address: [X]
Telephone Number: [X]
Email Address: [X]

Apple is a third-party beneficiary to these Terms of Use and may enforce these Terms of Use against you.

If any of the terms and conditions in these Terms of Use are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement (the current version as of the date these Terms of Use was last updated is located at: http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/) or the App Store Terms of Service (the current version as of the date these Terms of Use was last updated is located at: http://www.apple.com/legal/internet-services/itunes/ca/terms.html), the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

24. Google Play

If the Cubby Application is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use:

You acknowledge that Google is not responsible for providing support services for the Cubby Solution.

If any of the terms and conditions in these Terms of Use are inconsistent or in conflict with the Google Play Developer Distribution Agreement (the current version as of the date these Terms of Use was last updated is located at https://play.google.com/about/developer-distribution-agreement.html), the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.