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CubeSmartSM Network Program Terms and Conditions.The self-storage owner, manager or operator designated above (“Operator”) hereby agrees to and accepts the following Network Program Terms and Conditions of CubeSmart (“CS”) as of the Effective Date (defined below).
1. Defined Terms. The following capitalized terms shall be defined as follows:“Agreement” shall mean these terms and conditions and all other information, data and input required for Operator to participate in the Network Program.“Customer” is defined in Section 6 below. “Effective Date” shall mean the date Operator agrees to these Terms and Conditions. “Network Location” shall mean the self-storage facilities owned and operated by Operator and identified in the Section entitled “Operator Information.”“Network Program” shall mean the program run and operated by CS wherein leads, referrals and confirmed reservations are obtained by CS and forwarded or otherwise transmitted to Operator.“Operator” shall mean the Operator identified in the above Section. “Referral Fee” shall mean the fees, commissions, and other charges set forth on the Network Program website.“CS Mark” shall mean any graphic image, text, logo, trademark, service mark, or other source identifiers of CS or its affiliates, including the name CubeSmart or derivative thereof.
2. Agreement. CS owns and operates a toll-free telephonic and online reservation network that enables users to make inquiries about and reservations for certain self-storage facilities located in the United States. Operator owns the Network Location identified above and wishes to receive confirmed reservations and referrals of customers interested in leasing one or more self-storage units at the Network Location. This Agreement contains the standard terms and conditions applicable to CS’s provision of confirmed reservations or referrals.
3. Services and Obligations. Operator shall have a dedicated electronic mail account and internet access to participate in the Network Program, which shall be monitored on a regular basis by Operator. Operator shall be solely responsible for uploading specific information about each Network Location to the Network Program website, including without limitation, pricing, unit sizes and availability. CS shall have no liability, obligation or responsibility for the content and information uploaded by Operator to the Network Program website. All communications between Operator and CS shall be made through electronic mail. Operator’s participation in the Network Program is nonexclusive to Operator and Operator acknowledges that the size and members of the Network Program shall be established solely by CS. Operator agrees to be bound by the rules and regulations of the Network Program, which are posted on the Network Program website, including without limitation, CS’s privacy policy as in effect from time to time.
4. Representations and Warranties. Operator hereby represents and warrants to CS that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations as set forth herein; (b) it is under no obligation or restriction that does or would interfere or conflict with its obligations under this Agreement, nor will it assume any such obligation or restriction; and (c) the information provided by Operator in connection with this Agreement is true, correct, and complete.
5. Term. The term of this Agreement shall begin on the Effective Date and shall continue until terminated as provided herein. Either Operator or CS may terminate this Agreement at any time upon thirty (30) days written notice to the non-terminating party. This Agreement shall terminate automatically if, at any time, Operator is in violation of this Agreement. Upon the termination of the Agreement, CS shall remove all links to the Network Location from the Network Program website and Operator cease all use of the CS Marks. The provisions of Sections 2, 3, 6, 8, 9, 10 and 11 hereof shall survive termination of this Agreement.
6. Fees. Operator agrees to pay CS the Referral Fee for each visitor to the Network Program website or caller to the Network Program call center that reserves one or more units at a Network Location or is referred to a Network Location (individually or collectively, a “Customer”). CS may change its pricing for Customer referrals on prior notice to Operator. CS shall process all transactions made through the Network Program website or call center, however, all agreements relating to sales to a Customer shall be between Operator and such Customer. CS makes no representations, warranties or covenants of any kind or nature that Owner’s participation in the Network Program will produce any Customer referrals or reservations for Operator.
7. Notice. All notices to CS shall be delivered through electronic messaging on the Network Program website and shall be deemed delivered upon receipt of a confirmation of delivery from CS. All notices to Operator shall be delivered to Operator at the email address established by Operator and supplied to CS on this Agreement. Any changes to Operator’s email shall be made by notice to CS through the Network Program website.
8. Disclaimer of Warranties. CS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATURORY, WITH RESPECT TO THE NETWORK PROGRAM WEBSITE, CS MARKS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CS BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, SAVINGS, DATA OR USE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Indemnity. Operator agrees to indemnify, defend and hold harmless CS, its parent, subsidiaries, affiliates, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys’ fees, which result or arise from or are based on (i) the negligence of Operator, its agents, servants and/or employees, (ii) Operator’s breach of this Agreement or any of the terms hereunder, or (iii) any claim related to a Network Location, including without limitation any claims made by a Customer.
10. Confidentiality. During and after the term of this Agreement, Operator will not use, disclose or otherwise permit any person or entity access to any portions of this Agreement or the terms and conditions of the Network Program (collectively, the “Confidential Information”). Confidential Information will be used by Operator solely for the purpose of fulfilling its duties under this Agreement and will be kept confidential by Operator, or as required by a final, non-appealable order, provided CS has the opportunity to contest such order at its expense (unless the order relates to or arises from a breach of this Agreement by a Operator, in which event such contest shall be at Operator's sole cost and expense). Operator agrees to take all reasonable precautions to prevent disclosure of the Confidential Information to unauthorized persons or entities.
11. Miscellaneous. a. Nothing contained in this Agreement or in Operator’s participation in the CubeSmart Network Program shall grant or otherwise operate or be implied to grant any rights under any franchise law, partnership, joint venture, agency, or other form of agreement or relationship than as expressly set forth herein, it being agreed that participation is voluntary on the part of Operator and is at the sole discretion of CS, and Operator’s right hereunder may be terminated solely in accordance with the provisions of this Agreement. b. Except for limited signage provided by CS, Operator shall have no right to use, distribute, modify, reverse engineer, or create derivative works for any CS Mark. Operator further agrees not to use the CS Marks in a false, competitively adverse, or poor light. CS reserves all right, title, and interest in and to the CS Marks, along with any intellectual property rights associated with any of the foregoing, and no title or ownership of any of the foregoing is transferred to Operator or any other entity or person under this Agreement. c. This Agreement shall be binding upon the parties, and their permitted successors and assigns, provided, however, that Operator shall not assign this Agreement without the express written consent of CS, and any purported assignment in violation of this provision shall be null and void. d. Any signature page delivered by electronic or digital means shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto. e. This Agreement shall be governed by the law of the Commonwealth of Pennsylvania without regard to conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction of and venue of the courts of the Commonwealth of Pennsylvania located in Montgomery County, Pennsylvania. f. This Agreement constitutes the entire agreement between the parties and supersedes all oral or written agreements and understandings made and entered into by the parties prior to the date hereof. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.