PLEASE READ CAREFULLY: THIS MASTER SERVICES AGREEMENT is between Pagoda Box, Inc. ("Pagoda Box") and the individual or entity ("Customer", "you", "yours", etc.) for certain computer infrastructure and related services, including the Pagoda Box website, the Pagoda Box cloud computing platform, the Pagoda Box Application Programming Interface ("API") , the Customer Dashboard (as defined herein), and any other software or services offered by Pagoda Box in connection with any of those (the "Pagoda Box Services" or the "Services"). The Customer's use of and access to the Services is governed by the Master Services Agreement which includes the Terms of Service, Service Level Agreement, Privacy Agreement, IP Address Policy, Pagoda Box Acceptable Use Policy and relevant appendices (which may include without limitation the international-related addendum, if any, that applies) (collectively, the "MSA").
BY INSTALLING OR USING THE SERVICES, THE CUSTOMER AGREES:
- THAT THE CUSTOMER HAS ACCEPTED THE MSA IN ITS ENTIRETY;
- TO BE BOUND BY THE MSA AS AMENDED FROM TIME TO TIME AS PROVIDED IN THESE TERMS OF SERVICE ; AND
- THAT THIS MSA CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN PAGODA BOX AND CUSTOMER. IF THE CUSTOMER IS AN INDIVIDUAL, THE INDIVIDUAL REP
IF YOU OR THE ENTITY YOU REPRESENT DO NOT AGREE WITH ALL THE TERMS OF THIS MSA OR DO NOT AGREE TO BE BOUND BY THIS MSA, YOU MAY NOT INSTALL OR USE THE SERVICES.
- Application means a collection of webpages, databases, web templates, images, content, and source code files that generates and/or constitutes a single website or web application. Applications are created by Customers and are hosted and/or managed using the Pagoda Box Services, including the Customer Dashboard.
- Information means billing information, contact information, payment information and such other information defined as "Account Information" in the Customer Dashboard.
- Affiliate means any legal entity that a party controls, that controls a party, or that is under common control with a party. For purposes of this definition, "control" shall mean beneficial ownership of the securities entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, of the election of the corresponding management authority) in the entity of (i) more than fifty percent (50%) of the securities or (ii) such lesser percentage of securities as is the maximum ownership permitted in the country where the entity exists.
- Date means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is June 6, 2014, then the Anniversary Billing Date is the sixth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the 28th of each month (i.e. if the Anniversary Billing Date is the 30th, then the Anniversary Billing Date shall be the 28th of each month).
- AUP means the Acceptable Use Policy which is located at www.pagodabox.io/legal (or such other location as Pagoda Box may designate from time to time).
- Customer means the individual or entity who agrees to the terms of the MSA by clicking or checking the box presented with the MSA, installing and/or using the Services.
- Content means all data, software and information, including, without limitation, data text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Affiliates.
- User means a Third Party which is an end user of a Customer Offering.
- Offering means services created by Customer based in whole or in part on the Services which are used by Third Parties.
- Dashboard means the portal at dashboard.pagodabox.io (or such other location as Pagoda Box may designate from time to time) or the same information as available through the Pagoda Box Application Programming Interface.
- Date means the date on which the Customer accepts the MSA by clicking or checking the box presented with the MSA, installing and/or using the Services.
- Feedback means any and all suggestion, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to Pagoda Box either directly or indirectly via a Pagoda Box-controlled web site.
- Flow-Through Provisions mean the terms of agreements for services provided by Third Parties which are included in the MSA as required by providers of Third Party Services. The Flow-Through Provisions apply only to the relevant services provided by Third Parties. Such services provided by Third Parties are part of the Services and are subject to the terms of the MSA as well as the Flow-Through Provisions.
- Services means the Services that Pagoda Box offers on an hourly basis.
- Policy means the policy governing the use and provision of any IP Addresses which is located at www.pagodabox.io/legal (or such other location as Pagoda Box may designate from time to time).
- MSA has the meaning set forth in the recitals.
- Order means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the Customer Dashboard or such other method designated by Pagoda Box from time to time. Orders do not apply to Third Party Services.
- PII means information that can be used to identify, contact, or locate a single person or that can be used with other sources to uniquely identify a single individual.
- Agreement means the terms governing the use of PII which is located at www.pagodabox.io/legal (or such other location as Pagoda Box may designate from time to time).
- Network means the term as described in the AUP
- Network means the term as described in the AUP.
- Services has the meaning set forth in the recitals.
- Agreement means the Service Level Agreement which is located at www.pagodabox.io/legal (or such other location as Pagoda Box may designate from time to time).
- Site means www.pagodabox.io (or such other location as Pagoda Box may designate from time to time).
- Credits mean the credits awarded by Pagoda Box, generally awarded at our discretion for service downtime as described in the Service Level Agreement.
- Box has the meaning set forth in the recitals.
- Term means the term as set forth in Section 16.
- Party means an individual or an entity which is not a Customer, Pagoda Box, an Affiliate of Pagoda Box or an Affiliate of Customer.
- Services mean services which are provided by Third Parties directly to Customer. The definition of Services does not include Third Party Services.
- TOS means the terms of service for the Services.
- Agreements mean agreements for Third Party Services which are directly between the Customer and the provider of the Third Party Services. These agreements are separate and independent from the MSA and Pagoda Box is not a party to these agreements.
2. PAGODA BOX'S OBLIGATIONS.
- 2.1 Provision of Services. Contingent on Pagoda Box's acceptance of an Order and subject to the terms of the MSA, Pagoda Box agrees to use reasonable commercial efforts to provide the Services subject to the terms of Service Level Agreements. Pagoda Box retains the right to reject the request for Services by any individual or entity in its sole discretion. Pagoda Box may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Customer Dashboard. It is the Customer's responsibility to review the Customer Dashboard for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and Pagoda Box is not responsible for the provision of Third Party Services.
- 2.2 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this MSA.
- 2.1 Provision of Services. Contingent on Pagoda Box's acceptance of an Order (which acceptance can be revoked at any time in Pagoda Box's sole discretion as set forth herein) and subject to the terms of the MSA, Pagoda Box agrees to use reasonable commercial efforts to provide the Services subject to the terms of this MSA, the Service Level Agreements, Privacy Agreement and other relevant documents available at www.pagodabox.io/legal (or such other location as Pagoda Box may designate from time to time). Pagoda Box retains the right to reject the request for Services by any individual or entity in its sole discretion. Pagoda Box may change, discontinue, add, modify, re-price or remove features or functionality from the Services or make changes to any legal policy or document upon notice to Customer provided through the Customer Dashboard. It is the Customer's responsibility to review the Customer Dashboard for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and Pagoda Box is not responsible for the provision of Third Party Services. 2.2 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this MSA. Customer will be personally liable for any breach by a legal entity on whose behalf Customer enters into the MSA.
2. PAGODA BOX'S OBLIGATIONS.
- 3.1 Collection of PII. The collection and use of PII is governed by the Privacy Agreement.
4. USE OF AND ACCESS TO THE SERVICES.
- 5.1 Fees: Payment for all fees for the provision of Services such as servers, virtual servers, shared storage and backups shall be due on the next Anniversary Billing Date. One time fees, such as setup fees, bandwidth, storage, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by Pagoda Box through the Customer Dashboard. 5.2 Payment Methods: The payment shall be made by the credit card (or other acceptable method of payment, in Pagoda Box's sole discretion) (the "MOP") maintained on file with Pagoda Box. Customer is responsible to update the MOP periodically and failure to do so may result in the termination of this Agreement and the termination of any Applications owned by Customer in Pagoda Box's sole discretion. Pagoda Box is authorized to charge the MOP on file automatically each month on the Anniversary Billing Date for all fees incurred by Customer since the prior Anniversary Billing Date and such authorization may be revoked only prospectively as to fees not yet incurred by Customer. 5.3 Taxes: All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Any sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party's taxes based on income. If withholding tax applies to any payments for Services made under this MSA, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide Pagoda Box with an official receipt for any such taxes withheld and must notify Pagoda Box prior to payment that withholding tax is required to be paid and Customer shall pay to Pagoda Box any additional amount to ensure that Pagoda Box receives the full amount of the invoice. If Pagoda Box has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides Pagoda Box with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis. 5.4 SLA Credits: SLA Credits, if issued to Customer's account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the MSA. 5.5 Additional Fees. The Customer's failure to pay any fees on the due date shall result in incurring a late fee of $5 per Application. If Pagoda Box has suspended the Customer's access to the Services over the Public Network as provided in Section 15, the Customer shall incur a $5 per Application reconnection fee. Such fees shall be due upon receipt, and Pagoda Box will not reconnect any Services to the Customer until full payment of such fees plus any and all amounts then due for the Services. 5.6 Refunds & Disputes: All fees paid for Services to Pagoda Box are non-refundable. If the Customer believes that the bills are in error, the Customer's sole and exclusive remedy is to seek SLA credits by sending an email to firstname.lastname@example.org within 30 days of the receipt of the disputed bill, which will open a billing ticket to give notice to Pagoda Box. Any invoice not disputed by Customer in accordance with this section within 30 days of receipt of the invoice shall be deemed conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to Pagoda Box and any such chargeback will result in an additional payment to Pagoda Box of up to $500 which is a reasonable estimate of Pagoda Box's additional administrative costs to contest any such chargeback. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys' fees, court costs and collection agency fees) incurred by Pagoda Box in enforcing collection of fees.
- 6. OWNERSHIP OF SITE: Customer hereby acknowledges and agrees that Pagoda Box (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by Pagoda Box, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and Pagoda Box, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Pagoda Box or its licensors.
- 7. SECURITY: Pagoda Box agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup of the Customer Content. Pagoda Box will take commercially reasonable steps to maintain the confidentiality of the Customer Content in performing data backup services, which backup services are not redundant, and not geographically distributed. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
- 8. INDEMNIFICATION BY CUSTOMER: Customer hereby agrees to indemnify, defend and hold harmless Pagoda Box and its parents, Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the "Pagoda Box Parties") (Pagoda Box and each of the Pagoda Box Parties, an "Indemnified Party"), from and against any and all liability (including, without limitation, attorneys' fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged suit, claim, damages, harm, or other responsibility whatsoever ("Claim") arising out of: (a) Customer's use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any breach or alleged breach by Customer or Customer End Users of a Third Party's rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party's copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by Pagoda Box prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Pagoda Box or any Pagoda Box Party without the prior written consent of Pagoda Box and/or the applicable Pagoda Box Party(s). Customer and Customer's counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Pagoda Box or the Pagoda Box Parties in the defense or settlement of any such matter.
- 9. DISCLAIMER OF WARRANTIES: EXCEPT AS REQUIRED BY LAW CUSTOMER'S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER'S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY PAGODA BOX "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. PAGODA BOX; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS AND CUSTOMER END USERS' USE OF THE SERVICES.
- 10. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL PAGODA BOX BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF PAGODA BOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 11. LIMITATION OF LIABILITY. PAGODA BOX WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, PAGODA BOX IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, PAGODA BOX'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE THREE MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO PAGODA BOX'S LIABILITY.
- 12. ALLOCATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH PAGODA BOX WOULD NOT HAVE ENTERED INTO THIS MSA. PAGODA BOX'S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
- 13. TRADEMARKS. Customer hereby grants to Pagoda Box a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Customer's trademarks, marks, logos or trade names in connection with Pagoda Box's provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by Pagoda Box or its designees. The license granted in this Section 14 will include the right of Pagoda Box to sublicense its Affiliates and any Third Parties providing all or part of the Services on behalf of Pagoda Box to achieve the foregoing.
14.1 Suspension. Pagoda Box may suspend provision of Services to Customer without liability if: (i) Pagoda Box reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer does not cooperate with Pagoda Box's investigation of any suspected violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (iii) Pagoda Box reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer's consent or in violation of the MSA; (iv) Pagoda Box reasonably believes that suspension of the Services is necessary to protect Pagoda Box's network or other Pagoda Box customers; (v) a payment for the Services is overdue by more than 10 days including the Anniversary Billing Date (and in addition, Pagoda Box may, in Pagoda Box's sole discretion, continue to make the Services available through the Public Network and may suspend such access to the Private Network if the fees are not paid within 10 days of the due date); (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other Pagoda Box customer, (vii) Pagoda Box reasonably believes that the use of the Services by Customer may subject Pagoda Box, its Affiliates, or any Third Party to liability; or (viii) suspension is required by law, statute, regulation, rule or court order. Pagoda Box will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless Pagoda Box determines, in Pagoda Box's reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Pagoda Box or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of the Flow-Through Provision shall be treated the same as a violation of the MSA for this provision. If Pagoda Box suspends the Customer's right to access or use any portion or all of the Service:
- a. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;
- b. Customer remains responsible for any applicable fees and charges for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
- c. Customer will not be entitled to any SLA Credits under the Service Level Agreement for any period of suspension; and
- d. At Pagoda Box's sole discretion, Pagoda Box may terminate Customer's access to Customer Content stored in the Services during a suspension, and Pagoda Box shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
- 16.1 Term. Except in the case of Hourly Services which are provided based on the number of hours in the Order or as otherwise agreed to by the parties in writing, the term shall commence on the Effective Date and is automatically renewed each Anniversary Billing Date until terminated as provided below.
- 16.2 Termination for Convenience. Customer may terminate the MSA for convenience at any time as provided in Section 4.1 through the Customer Dashboard. If Customer terminates this MSA for convenience, Customer shall pay Pagoda Box all amounts that would be due on the next Anniversary Date. Pagoda Box may terminate the MSA for convenience upon providing Customer with notice of non-renewal at least 10 days prior to the expiration of the Initial Term or any Renewal Term.
- 16.3 Termination for Breach. Pagoda Box may terminate the MSA immediately upon notice provided through the Customer Dashboard if: (i) Pagoda Box discovers that the information Customer provided to Pagoda Box about Customer's proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the MSA, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the MSA, install or accept Services on behalf of the person represented to be the Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 10 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this MSA and fails to remedy any violation within 10 days of Pagoda Box's written notice; (v) Customer or Customer End User violates the AUP; (vi) Customer's account has been suspended for 30 days or more; (vii) Customer has multiple violations of the MSA; or (viii) Customer fails to comply with any other provision of this MSA and does not remedy the failure within 30 days of Pagoda Box notice to Customer describing the failure. Pagoda Box will give Customer written notice of termination under this paragraph unless Pagoda Box determines, in Pagoda Box's reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect Pagoda Box or its other customers from operational, security, or other risks. A breach of the Flow- Through Provision shall be deemed to be a breach of the MSA.
- 16.4 Access to Customer Content. The deletion of Customer Content is automatic upon termination or expiration of the MSA. Consequently, unless Pagoda Box determines otherwise, Customer will not have access to Customer Content, and Pagoda Box may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this MSA.
- 16.5 Effect of Termination. Upon expiration or termination of the MSA, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by Pagoda Box and any other materials provided to Customer by Pagoda Box in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. Pagoda Box will have no obligation to provide any transition services or access to data except as expressly stated in Section 16.4 above.
17. U.S. GOVERNMENT CUSTOMERS AND U.S. GOVERNMENT RIGHTS. Pagoda Box provides the Services for ultimate federal government end use solely in accordance with the following license rights to use, modify, reproduce, release, perform, display, or disclose: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this MSA. This customary commercial license is provided in accordance with the Federal Acquisition Regulation ("FAR") at 48 C.F.R. 12.211 (Technical Data) and FAR 12.212 (Software) for civilian agencies of the federal government, and, for Department of Defense transactions, the Defense Federal Acquisition Regulation Supplement ("DFARS") at 48 C.F.R. 252.227- 7015 (Technical Data â€“ Commercial Items), 48 C.F.R. 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). This U.S. Government Rights clause, consistent with 48 C.F.R. 12.211, 48 C.F.R. 27.212 (federal civilian agencies) or 48 C.F.R. 227.7202-4 (DoD agencies) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in computer software, computer software documentation or technical data related to the Pagoda Box Commercial Computer Software and Commercial Computer Software Documentation licensed under this MSA or in any contract or subcontract under which this Pagoda Box Commercial Computer Software and Commercial Computer Software Documentation is acquired or licensed. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Pagoda Box to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in writing and agreed to by Pagoda Box in any applicable contract or agreement.
18. THIRD PARTIES. Unless otherwise agreed, Pagoda Box will provide support only to Customer, not to Customer End User, Customer Affiliate, Third Party or Third Party Affiliate to whom Customer provides access to use the Services or the Customer Offering. There are no Third Party beneficiaries to the Agreement, meaning that Third Parties do not have any rights against either Pagoda Box or Customer under the MSA.
- 19.1 Changes to the MSA. As noted in the recitals, Pagoda Box may modify the terms and conditions of this MSA as provided below. Pagoda Box will notify its Customers through the Customer Dashboard of any such modifications and all modifications shall be effective upon their posting on the Customer Dashboard. It is the Customer's responsibility to review the Customer Dashboard for such modifications on a frequent basis. If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the MSA must be approved in writing by Pagoda Box.
- 19.2 Certain Employment Issues. If Customer's employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against Pagoda Box under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify Pagoda Box from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with Pagoda Box's standard generally-applicable policy.
- 19.3 Notices. Customer communications regarding the Services should be submitted in a ticket through the Pagoda Box dashboard except for the following types of notices: for breach, indemnification, or other non-routine legal matters, Customer should send it by electronic mail and first-class United States mail to:
Pagoda Box, Inc.
C/O Legal Department
237 North 2nd East Suite:106
Rexburg, ID 83440
Pagoda Box's communications regarding the Services and legal notices will be sent through the Customer Dashboard. Notices are deemed received as of the time delivered. Notices must be given in the English language.
- 19.4 Export Matters. If Customer chooses to use these Services, Customer does so on its own initiative and is responsible for compliance with applicable laws. Customer agrees to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer's use of these Services and to not, in violation of any laws, transfer, or authorize the transfer, of any Services (a) into any U.S. and/or U.N. embargoed countries or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. By using these Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations. Customer assumes responsibility for compliance with laws and regulations applicable to export, re-export or import of products, technology or technical data provided hereunder and for obtaining required export and import authorizations. Customer will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations ("ITAR Data") or other applicable laws unless Pagoda Box has agreed to the transfer and (i) Customer has provided Pagoda Box not less than 10 days' prior written notice that ITAR Data will be transferred to or through the Services, (ii) Customer has received prior written authorization from the U.S. Government to transfer the ITAR Data to Pagoda Box, and (iii) Customer agrees to provide Pagoda Box with all necessary assistance to enable Pagoda Box to obtain such U.S. Government permission. Customer is responsible, and will reimburse Pagoda Box, for all costs, expenses or damages incurred by Pagoda Box in connection with Customer transfer of ITAR Data.
- 19.5 Assignment/Subcontractors. Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without Pagoda Box's prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. Pagoda Box may assign the MSA to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of Pagoda Box to such entity and such entity agrees in writing to be bound by the terms of the MSA. This MSA will be binding on and inure to the benefit of Customer's and Pagoda Box's respective permitted successors and permitted assigns. However, Pagoda Box may use Third Parties or Affiliates to provide all or part of the Services. This provision does not apply to the Third Party Services which are governed by separate agreements.
- 19.6 Force Majeure. Except for its rights in Sections 15 or 16, neither Pagoda Box nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond either party's control, such as significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry; provided however if the force majeure event continues beyond thirty (30) days, the performing party may terminate the MSA.
- 19.7 Feedback. Pagoda Box shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to Pagoda Box all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide Pagoda Box with any assistance Pagoda Box may require to document, perfect, and maintain Pagoda Box's rights in the Feedback.
- 19.8 Governing Law, Lawsuits. The MSA is governed by the laws of the State of Idaho, exclusive of any Idaho choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The application to the MSA of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the MSA shall be in the state or federal courts in Madison County, Idaho, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
- 19.9 Relationship of the Parties. The parties' relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a Third Party.
- 19.10 No Waiver. Pagoda Box's failure to exercise or delay in exercising any of its rights under this MSA will not constitute a waiver, forfeiture, or modification of such rights. Pagoda Box's waiver of any right under this MSA will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. Pagoda Box's waiver of any right under this MSA must be in writing.
- 19.11 Survival. All provisions that by their nature are intended to survive expiration or termination of the MSA shall survive expiration or termination of the MSA.
- 19.12 Integration. This MSA is the complete and exclusive agreement between Customer and Pagoda Box regarding its subject matter and supersedes and replaces any agreement, understanding, or communication, whether written or oral, prior or contemporaneous.
- 19.13 Severability. If any part of this MSA is found unenforceable by a court or other tribunal, the rest of the MSA will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this MSA.
- 19.14 Language. The official language of the MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.
- 19.15 Application Type & Limitations. "Tinker" applications that remain unused for 30 days will be removed from Pagoda Box. Usage is determined by managing team members "waking" the application; accomplished by accessing the application through a browser and verifying the visiting user is not a robot. Upon verification, the application is "awakened" and considered "in use".
SERVICE LEVEL AGREEMENT
The SLA is incorporated into the MSA and applicable to all Services delivered to Customers. This SLA does not apply to the availability of Third Party Services which are subject to the TPS Agreements and does not apply to Third Parties or to Customer End Users. The issuance of SLA Credits (defined below) is the sole and exclusive remedy of Customer and Pagoda Box's sole and exclusive obligation, for any failure by Pagoda Box to satisfy the requirements set forth in this SLA.
- 1. Documentation: Free technical documentation is available through the Pagoda Box Support Site located at www.pagodabox.io/docs.
Support Requests: Pagoda Box provides support coverage from 8am - 5pm Mountain Time, Monday - Friday, excluding US Holidays. Support inquiries may be submitted at any time via the Pagoda Box dashboard.
The following support requests are covered under General Support:
- General how-to questions, and providing pointers to documentation
- Installation and Configuration Questions
- Troubleshooting issues preventing an application from running on Pagoda Box
- Troubleshooting features showing erratic or faulty behavior on Pagoda Box, independent of the user's application code
The following support requests are not covered under General Support:
- General debugging of user applications
- Writing application code for Pagoda Box compatibility
- Modifying third party or Open Source software for Pagoda Box compatibility
- 3. Outages. Pagoda Box servers and networks are monitored 24x7x365 by automated systems. Outages affecting the Services are diagnosed and corrected as quickly as possible. Automated recovery processes resolve many of the issues affecting Customer uptime, however individual applications may not be repaired, and remain the Customer's responsibility.
- 4. Data Backup: Customers may manually Save and Revert to Data Backups via the Customer Dashboard. Automated Data Backups are not currently available through Pagoda Box. Data Backups will be performed to a shared Managed Backup Infrastructure, and will be retained until deleted by the Customer. Customer is solely responsible for ensuring that data is backed up in the event of an outage. There is no resolution guarantee and no guarantee of backup integrity.
- 5. Uptime and Monitoring: Historical uptime, outage, and monitoring information is available at status.pagodabox.io. We provide this information so that Customers may use it, to the extent that it is helpful, to make their own, independent judgments about Pagoda Box's relative reliability. We cannot, however, guarantee that our future performance in these categories will equal our historical performance. We can only guarantee that our uptime will be commercially reasonable under the circumstances, and that we will always use our best efforts to minimize downtime.
- 6. SLA Guarantee: If it seems appropriate to us to do so, we may elect to take measures to compensate our Customers for downtime or outages, whether or not the particular incident exceeded our promise of commercially reasonable uptime. In doing so, we are not necessarily agreeing that the downtime or outage was our fault, was unreasonable, rendered the Services unfit for any particular purpose, or that there is or was otherwise any flaw in our Services or the delivery thereof. Any such compensation awarded will be made solely in the form of SLA Credits, and will remain in our sole and exclusive discretion.
- 7. Maintenance: "Maintenance" means: A) PAGODA BOX MAINTENANCE WINDOWS: upgrades or repairs to shared infrastructure, such as core routing or switching infrastructure that we scheduled at least 72 hours in advance and that occurs during off peak hours in the time zone where the data center is located; B) SCHEDULED CUSTOMER MAINTENANCE: maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades; C) EMERGENCY MAINTENANCE: critical unforeseen maintenance needed for the security or performance of your configuration or Pagoda Box's network. We require that all servers remain patched to the approved Pagoda Box patch level. You are not entitled to SLA Credits for downtime or outages resulting from Maintenance.
Limitations on Credits
- 8. Cumulative Dollar Amount: Notwithstanding anything in this SLA to the contrary, the maximum total credit awarded by Pagoda Box for any calendar month will not exceed 50% of your monthly recurring fee for the affected hosted system.
- 9. Force Majeure/Extraordinary Events: Pagoda Box will not award credit for downtime or outages resulting from an event of Force Majeure (as described in Section 19.6 of the TOS), denial of service attacks, virus attacks, hacking attempts, and/or any other circumstances that are not within our control.
- 10. Your Breach of the Agreement: You cannot receive a credit if you are in breach of the Agreement at the time of the occurrence of the event giving rise to the credit until you have cured the breach. You cannot receive a credit if the event giving rise to the credit would not have occurred but for your breach of the Agreement.
- 11. Disabling or Removing of Monitoring or Security Services, Interference with Services: You must notify us in advance if you plan to disable, block, or remove any monitoring or security element of your hosting service for more than thirty (30) minutes. We will not issue you any credit for events that might have been avoided or mitigated if you had not disabled, blocked or removed our monitoring or security elements, or otherwise interfered with our ability to provide the Services.
- 12. Data Center Upgrades: Softlayer is constantly upgrading data center facilities, and in order for you to benefit from these upgrades, you agree that we may relocate your servers within Softlayer data centers, make changes to the provision of the Services, URLs and your IP addresses and may establish new procedures for the use of the Services. In each case we will give you reasonable advance notice and use all reasonable endeavors to minimize the effect that such change will have on your use of the Services.
ACCEPTIBLE USE POLICY
General Statement: Pagoda Box is dedicated to the use of the Internet to improve the lives of individuals throughout the world. Our goal is to deliver enterprise quality on-demand IT Services to all of our Customers at a reasonable price and make available the benefits of the Internet as broadly as possible. The purpose of this AUP is to inform all Customers of the acceptable uses of the Services. Pagoda Box is committed to encouraging the use of the Internet through its Services and Third Party Services, but such use must be consistent with the laws and regulations governing use of the Internet and must protect the right of its other customers to use its Services. The AUP is designed to achieve these goals. Customer agrees to comply with the AUP and is responsible for the use of the Services and Third Party Services by all entities and individuals whom Customer permits to use the Services, Third Party Services or the Customer Offering. In addition to its rights under Section 19.1 of the Terms of Service, Pagoda Box has the right to change or modify the terms of the AUP at any time, effective when posted to the Customer Dashboard. Customer's use of the Services or Third Party Services after changes to the AUP are posted shall constitute acceptance of any changed or additional terms.
Public Network: The Public Network of Pagoda Box provides public Internet access to Customer servers and data storage services on Pagoda Box's network. All Customers are granted equal access to the Public Network.
Private Network: The Private Network of Pagoda Box provides Customer with secure private network connectivity from Customer's private back end network directly to Customer servers and data storage devices on Pagoda Box's internal network and to other Services. Customer may use the Private Network to upload/download content, administer Customer servers and data storage devices, transmit information between Customer servers and data storage devices, transmit information between Customer's private back end servers and Customer servers and data storage devices provided by Pagoda Box, administer the Customer Content, retrieve data, access server consoles, and otherwise manage the Customer Content. The Private Network can also be utilized for access during periods of temporary suspension of Services to Customer as provided under the MSA.
IP Addresses: The IP Address Policy (as described in the Terms of Services) which may be changed from time to time at Pagoda Box's sole discretion, is incorporated into this MSA by reference. Customer acknowledges and agrees to adhere to the IP Address Policy. All External IP Addresses assigned to Customer are owned and managed by Softlayer, and all internal IP Addresses assigned to Customer are owned and managed by Pagoda Box. Such IP Addresses are non-transferable, and Customer retains no ownership or transfer rights to such IP Addresses. All IP Addresses are assigned by the Pagoda Box engineering team on a per VLAN, per server basis. Attempted use by Customer of any unallocated IP Address or any IP Addresses on VLANs not assigned to Customer is a violation of this AUP.
Prohibited Uses: The following list provides a number of general prohibited uses of the Services and/or Third Party Services that are violations of this AUP. Please note that the following list does not represent a comprehensive or complete list of all prohibited uses.
1. Unlawful Activities. The Services and/or Third Party Services shall not be used in violation of any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule. This includes, but is not limited to:
- a) Child pornography
- b) Unlawful gambling activities
- c) Threats, harassment and abuse of any individual, organization or business
- d) Fraudulent activities
- e) Terrorist websites or other sites advocating human violence and hate crimes based upon religion, ethnicity or country of origin
- f) Unlawful high yield investment plans, Ponzi schemes or linking to and or advertising such schemes
- 2. Pornography and Child Pornography: In particular, the Services and/or Third Party Services shall not be used to publish, submit, receive, upload, download, post, use, copy or otherwise produce, transmit, distribute or store pornography or child pornography.
- 3. Unsolicited Email: The use of the Services and/or Third Party Services to send or receive mass unsolicited email ("SPAM"). This prohibition includes the direct sending and receiving of such messages, support of such messages via web page, splash page or other related sites, or the advertisement of such services. The falsifying of packet header, sender, or user information whether in whole or in part to mask the identity of the sender, originator or point of origin or knowingly deleting any author attributions, legal notices or proprietary designations or labels in a file that the Customer mails or sends.
- 4. Email Bombing: The sending, return, bouncing or forwarding of email to specified user(s) in an attempt to interfere with or overflow email services.
- 5. Proxy Email: The use of the Services and/or Third Party Services as a proxy email server to forward email to unrelated Third Parties.
- 6. UseNet SPAM: The use of Services to send, receive, forward, or post UseNet unsolicited email or posts. This includes UseNet services located within the Pagoda Box network or unrelated networks of Third Parties.
- 7. Hacking: The use of the Services and/or Third Party Services or hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and control devices, software or data without express authorization of the owner of the system or network.
- 8. Threatening Material or Content: The Services and/or Third Party Services shall not be used to host, post, transmit, or retransmit any content or material that harasses, or threatens the health or safety of others. In addition, Pagoda Box reserves the right to decline to provide Services and/or Third Party Services if the content is determined by Pagoda Box to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the use of violence or otherwise harmful to others.
- 9. Violation of Intellectual Property Rights: The Services and/or Third Party Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise reproduce, transmit, retransmit, distribute or store any content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of Pagoda Box or any other party, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation. Please file complaints or counter notifications related to copyright or trademark claims via electronic mail sent to email@example.com.
- 10. Distribution of Malware: The storage, distribution, fabrication, or use of malware, including without limitation, virus software, root kits, password crackers, adware, key stroke capture programs and other programs normally used in malicious activity is prohibited. The use of such programs in the normal ordinary course of business, however, may be requested by Customer and approved by Pagoda Box on a case by case basis. Example: Security company using the Services to analyze the latest root kit for new security analysis/software.
- 11. Phishing: Any activity designed to collect personal information (name, account numbers, usernames, passwords, etc.) under false pretense. Splash pages, phishing forms, email distribution, proxy email or any activity related to phishing activities may result in the immediate suspension of Customer's account.
- 12. Violation of Agreements relating for Third Party Services. Any activity which violates any TPS Agreements.
- 13. Denial of Service. Any activity to implement or assist in the implementation of denial of service attack. Pagoda Box absolutely prohibits the use of Services for the origination, propagation or control of denial of service attacks ("DoS") or distributed denial of service attacks ("DDoS"). Customers may not utilize the Services to perform DoS or DDoS mitigation activities (such as service proxying or data scrubbing) which may result in attracting inbound denial of service attacks toward the Services. Any relation to DoS or DDoS type activity is a direct violation of Pagoda Box's AUP.
Reporting Violation of the Acceptable Use Policy: Pagoda Box accepts reports of alleged violations of this AUP via email sent to firstname.lastname@example.org. Reports of alleged violations must be verified and must include the name and contact information of the complaining party, and the IP address or website allegedly in violation, and a description of the alleged violation. Unless otherwise required by law, such as the DMCA, Pagoda Box owes no duty to Third Parties reporting alleged violations. Pagoda Box will review all verified Third Party reports and will take such actions as it deems appropriate in its sole discretion.
Pagoda Box will comply with and respond to valid (as Pagoda Box determines in its sole discretion) subpoenas, warrants, and/or court orders. If permitted by applicable law or regulation, Pagoda Box will forward such subpoenas, warrants, and/or orders to Customer and Customer may respond; however, Pagoda Box reserves the right to respond to any such subpoena, warrant and/or order if it is the named party in such subpoena, warrant, and/or order.
Normal Methods of Resolution for Violations of Pagoda Box's Acceptable Use Policy
The goal of our Normal Methods of Resolution is to mitigate service interruptions while resolving potential violations under this AUP. Our sales, support and abuse staffs are dedicated to working with the Customer in resolving potential violations, and are available via support ticket / email. The Normal Methods of Resolution below is provided for informational purposes only and forms the framework and guidance with respect to resolving potential violations. However, Pagoda Box reserves the right to take immediate action to address any violation of its Acceptable Use Policy at any time in its sole discretion, and you should not assume that any particular violation of the AUP will be handled as set forth below. Even for violations that are handled in accordance with these procedures, timing, order, and speed of these procedures for resolution may differ according to the degree of the violation, the nature of the violation, involvement of law enforcement, involvement of third party litigation, or other related factors.
- Step 1: First alleged violation of AUP: a ticket will be generated under Pagoda Box to provide the Customer's master user with information regarding the potential violation of Pagoda Box's AUP. This is often a fact-finding email requiring further information or notifying Customer of the potential violation and the required actions to resolve the issue.
- Step 2: Acknowledgment of violation of AUP: a ticket is generated under the Customer's user account with information specific to the violation. This ticket will also include any additional facts about the situation and will notify Customer of the action required to resolve the violation.
- Step 3: Violation of AUP disregarded, not properly addressed, or continuing violation if a ticket has been disregarded, not properly addressed, or resolved by the Customer for a specified period of time: Pagoda Box engineers will turn the public network port to the specified dedicated services off. Access to the dedicated services may then be achieved through the secure private service network for Customer resolution. As soon as the violation is addressed, the public access shall be restored and service will continue as normal.
- Step 4: Failure to address violation and resolve violation: if Customer fails to address the violation AND fails to resolve the violation, a suspension of services shall occur. This is a last resort for Pagoda Box and only results when the Customer completely fails to participate in Pagoda Box's resolution process. A permanent suspension of services includes reclamation of all dedicated services and the destruction of Customer's data.
Disclaimer: Pagoda Box retains the right, at its sole discretion, to refuse new service to any individual, group, or business. Pagoda Box also retains the right to discontinue service to Customers with excessive and/or multiple repeated violations.
Pagoda Box considers user privacy paramount, and Pagoda Box utilizes great care in keeping the information of the users of the Site (including Customers) ("Users" or "You") private and secure. To demonstrate our firm commitment to privacy, the following agreement has been created to explain our policies and procedures in relation to all data collected. In this Privacy Agreement ("PA") we describe the information that we collect; how we use, disclose, and share your information; and how we protect your information. Capitalized terms not defined in the PA are defined in the Terms of Service. This PA does not apply to Third Party Services which are governed by their own privacy policies.
Types of Data Collected
Pagoda Box collects data related to our users through the following methods:
- Automated means such as communication protocols and cookies
- Online registration and online signup forms
- Sales inquiries and transactions
- Online Customer communications
- Offline communications and interactions
- Third party sources of information
Depending upon the method of collection and use, the data collected may include information about the User from forms, registrations and transactions (such as name, title, address, company, phone number and e-mail address), financial/transaction information (such as credit card, card verification value (cvv), and payment information), information about use of Site (such as electronic communications protocols, web pages visited, and cookies) and User preferences and privileges.
Electronic Communications Protocols and Cookies
Pagoda Box may receive data from you as part of the communication connection itself through the standard electronic greeting between your computer and our servers. This information often consists of network routing (where you came from), equipment information (browser type), internet protocol address, date and time. At this time our server will also query your computer to see if there are "cookies" previously set by pagodabox.io to facilitate log in or other site navigation procedures. A "cookie" is a small piece of information sent by a web server to store in a web browser so it can later be read back from that browser.
Cookies on the Site may collect the following information: a unique identifier, User preferences and profile information used to personalize the content that is shown, and User information to access Pagoda Box's user forums. Some cookies used by pagodabox.io may remain on the user's computer after they leave the Site, but the majority is set to expire within sixty ("60") minutes. Cookies may also be of benefit to you by creating a more streamlined login process, keeping track of shopping cart additions or preserving order information between sessions. In the future, as we enable further customization of the Site, cookies will help in ensuring that information provided to you will be the most relevant to your needs.
Browsers provide you with information and control over cookies. You can set your web browser to alert you when a cookie is being used. You can also get information on the duration of the cookie and what server your data is being returned to. You then have the opportunity to accept or reject the cookie. Additionally, you can set your browser to refuse all cookies or accept only cookies returned to the originating servers. You can generally disable the cookie feature on their browser without affecting their ability to use the Site, except in some cases where cookies are used as an essential security feature or to provide functionality necessary for transaction completion.
We may also engage Third Parties to track and analyze non-personally and personally identifiable website data. To do so, we may permit Third Parties to place cookies on devices of Users of our Site. We use the data collected by such Third Parties to help us administer and improve the quality of the Site and to analyze Site usage.
By using the Pagoda Box Services, Customer represents and warrants that Customer is familiar and will comply with any and all state, federal, or international laws, rules, regulations, decisions, or other principles related to PII or other regulated information which is contained or stored in, processed by, or obtained by any Application or Customer Content which utilizes the Services. Customer will indemnify Pagoda Box, its officers, employees, shareholders, contractors, and others from and against any suit, claim, damage assessment, or other liability of any kind or sort whatsoever (including without limitation legal fees and costs), which derives in whole or in part from Customer's use of the Services to collect, process, use, store, maintain, or otherwise handle PII or other regulated information.
The Data We Collect and How We Use It
Pagoda Box collects data from users for the following purposes:
- To engage in transactions for service. Name, address, email, purchase details, and credit card/payment information may be collected and stored as part of the transaction history. The majority of the data collected under this category is contact information. Pagoda Box may need to share some of this data (address, payment) with credit card clearing houses, banking institutions, and other similarly situated Agents, who may require the information in order to complete the transaction (as used here, "Agents" are persons or companies who act on behalf of or under the direction of Pagoda Box).
- To provide future service and support. Information collected for this purpose is both contact data and information related to products and service/support requested. This information is also used to provide service, product update, and similar notices.
- To select content, data may be collected to help create Site content and navigation that is most relevant and user friendly. This includes data collected as a result of site navigation, as well as data provided in forms.
- To respond to user inquiries and requests for information. This data includes registrations for online newsletters, opt-in mailing lists and specific requests for further information.
- To respond to law enforcement organizations, government officials, third parties when compelled by subpoena, court order, or applicable law, or to report or prevent suspected fraudulent or illegal activity in the use of the Services. Pagoda Box will notify Customer of the information request or submission as, and if, allowed.
- To our contractors who provide services or perform functions on our behalf.
- If we are acquired by or merged with another company, if substantially all of our assets are transferred to another company, or as part of a bankruptcy proceeding, we may transfer the information we have collected from you to another entity if applicable.
- To better tailor marketing to User needs. We may use information from User purchases and User-specified requirements to provide you with timely and pertinent notices of Pagoda Box product releases and service developments that address your needs and specified requirements and/or which are similar to products and services previously purchased by the User from Pagoda Box.
- To better respond to requests for service or quotes for product and equipment purchase. Pagoda Box will pass contact information to the appropriate Pagoda Box sales person, or reseller for follow-up related to Pagoda Box products or services.
- From referral "tell a friend" function. If a User elects to use our referral service for informing a friend about our Site, we ask them for the friend's name and email address. Pagoda Box will automatically send the friend a one-time email inviting them to visit the Site and send a copy of said e-mail to the User. The e-mail(s) sent shall clearly identify the sender of such email(s). Pagoda Box uses this data for the sole purpose of sending this onetime email. Such email sent to a friend at User's request will not be stored for additional processing.
- As a result of your participation in interactive discussions and public forums. There are parts of the Site that permit you to participate in interactive discussions. Some of these are moderated; all are subject to access for technical reasons. Pagoda Box does not control the content that Users post and some may serve as public discussion forums. As in any interactive forum open to many Users, you should carefully consider whether you wish to submit data and should tailor any other content submitted accordingly.
Customer Dashboard, Customer Customization, Preferences and Opt-Out
New Customers are automatically registered for access at dashboard.pagodabox.io/users/register. The Customer Dashboard allows Customers the ability to create accounts and opt in (or out) of Services and mailing lists. The Customer Dashboard provides the Customers with control over their preferences for electronic information delivery.
Pagoda Box has also provided the Customer's master user the ability to manage the Customer's Account Information. We maintain the data and allow the Customer's master user to update it at any time. To change this information, you must be a current Customer and login with a user ID and password and follow the prompts to "update my profile" on the Customer Dashboard. We continue to expand the profile of Services and information that you may access and update.
Please note that some email communications are not subject to general opt-out. These include communications related to downloads; communications about sales transactions; information about software updates, patches and fixes; disclosures to comply with legal requirements; and network upgrades or other related maintenance for Service.
If an individual's PII is to be (a) disclosed by Pagoda Box (other than as the result of an Application or Customer Content utilizing the Services) to a Third Party who is not an Agent; or (b) used by Pagoda Box (other than as a result of an Application or Customer Content utilizing the Services) for a purpose that is incompatible with the purpose(s) for which it was originally collected or subsequently authorized by the individual, then the individual will be notified prior to such disclosure and may opt-out of the disclosure by responding to the email and/or author of the notification, using any response method designated by Pagoda Box in the notification..
Pagoda Box is concerned with the security of the data we have collected and utilizes commercially reasonable measures to prevent unauthorized access to that information. These measures include policies, procedures, employee training, physical access and technical elements relating to data access controls. In addition, Pagoda Box uses standard security protocols and mechanisms to facilitate the exchange and the transmission of sensitive data, such as credit card details. Pagoda Box does not process PII in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by the individual.
In the event that PII is acquired, or is reasonably believed to have been acquired, by an unauthorized person and applicable law requires notification, Pagoda Box will notify the affected individual of the breach by email or ticket on the Customer Dashboard or, if Pagoda Box is unable to contact the individual by email or ticket on the Customer Dashboard, then by regular mail. Notice will be given promptly, consistent with the legitimate needs of law enforcement and any measures necessary for Pagoda Box or law enforcement to determine the scope of the breach and to ensure or restore the integrity of the data system. Pagoda Box may delay notification if Pagoda Box or a law enforcement agency determines that the notification will impede a criminal investigation, and in such case, notification will not be provided unless and until Pagoda Box or the agency determines that notification will not compromise the investigation.
If we are going to use your PII in a manner different from that stated at the time of collection, we will notify you via email. In addition, if we make any material changes in our privacy practices that do not affect the PII already stored in our database, we will notify you by email or post a prominent notice on the Customer Dashboard notifying users of the change. In some cases, when we post the notice, we will also email users who have opted to receive communications from us, notifying them of the changes in our privacy practices. We may update this policy from time to time to describe how new site features affect our use of your PII and to let you know of new control and preference features that we provide.
Contact Information and Inspection Rights
Pagoda Box Inc.
237 N 2nd E, Suite 106
Rexburg, ID 83440
If at any time you decide that you no longer desire that we hold, use, correct or supplement any of your PII, receive information regarding any PII processed in relation to you or you wish to change the manner in which your PII may be used, please let us know by contacting us as set forth above.