Updated: 25 January 2022
- 1.1. “Addenda” or “Addendum” means any addendum or exhibit to this Agreement executed by both Parties. If any conflict or inconsistency arises between the terms of this Agreement and an Addendum then the terms of the Addendum will prevail to the extent of the conflict or inconsistency.
- 1.2. “Operational Data” means any information, data and/or metadata derived from use of the OpenBots Software Service that does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, OpenBots customer, user or company-specific name, and that is stripped of all persistent identifiers.
- 1.3. “Customer Data” means all information, content, text, data and other materials transmitted, uploaded, or stored by Customer or its Users in the OpenBots Software Service. Customer Content expressly excludes all OpenBots Software Service functionality.
- 1.4. “OpenBots Software Offering” means OpenBots Studio, OpenBots Server, OpenBots Discovery, OpenBots Documents, OpenBots Cloud Server, OpenBots Agents, and any OpenBots software that is provided by OpenBots.
- 1.5. “OpenBots Software Service” means the OpenBots Software Offering, including the computer software, computer code, scripts, application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services, support, training, academy offerings, and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the OpenBots Software Offering, set forth in an Order Form that is hosted by OpenBots or its third party hosting providers, as updated by OpenBots from time to time during the Term and which is made generally commercially available by OpenBots to all of its customers.
- 1.6. “Order Form” means the electronic order form or other quotation signed and accepted by the Customer for the applicable OpenBots Software Offering.
- 1.7. “User” means the employee or agent of Customer and Customer’s contractors, consultants, or authorized users that are not competitors of OpenBots as determined by OpenBots, which users are granted access by Customer to use OpenBots Software Service and which are bound by written terms at least as protective of OpenBots as those in this Agreement.
- 4.1. Fees. Customer will pay to OpenBots the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Customer is responsible for payment of all fees for all Users granted access during the Term, whether or not such User has actually accessed the OpenBots Software Service during the Term. Customer authorizes OpenBots to store its payment method and use it in connection with Customer’s use of the OpenBots Software Offerings. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. .
- 4.2. Taxes. All amounts payable under this Agreement exclude all applicable sales, use, and other taxes, and all applicable export and import fees, customs duties, and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on OpenBots’ income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of support services. Customer will make all payments required hereunder to OpenBots free and clear of, and without reduction for, any withholding taxes.
- 11.1. Customer Content. Customer grants to OpenBots a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to use, copy, execute, host, store, reformat and display the Customer Content for the sole purposes of enabling OpenBots to provide the OpenBots Software Service to Customer and its Users. In addition, Customer agrees that OpenBots’ third party contractors and service providers may exercise the licenses granted to OpenBots in this Section for the sole purposes of performing services for or on behalf of OpenBots in connection with the provision of the OpenBots Software Service to Customer. Customer acknowledges that if Customer desires to protect Customer’s transmission of Customer Content to OpenBots, it is Customer’s responsibility to use a secure encrypted connection to communicate with and/or use the OpenBots Software Service.
- 11.2. Feedback. In the event Customer or its Users provide OpenBots any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the OpenBots Software Service (collectively “Feedback”), including in response to any product plans or roadmaps shared with Customer, unless otherwise agreed in writing prior to such disclosure, Customer grants to OpenBots a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
- 11.3. Ownership. The OpenBots Confidential Information, OpenBots Software Service, OpenBots Software Offerings, and all worldwide Intellectual Property Rights in each of the foregoing and all modifications thereto and derivative works thereof, are the exclusive property of OpenBots. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by OpenBots and its suppliers. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software underlying the OpenBots Software Service, in either object code or source code form. OpenBots’ name and logo, and all OpenBots product and services names, including the name of the OpenBots Software Service and any product or service associated with the it, are trademarks of OpenBots or its licensors, and no right or license to use them is granted in this Agreement. Further, Customer acknowledges and agrees that OpenBots owns all right, title and interest in and to the Operational Data it develops and may use the Operational Data to provide and improve OpenBots’ products and services and for sales, marketing and other business purposes.
- 12.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, the existence and terms of this Agreement and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, OpenBots’ pricing, OpenBots Software Service and its features, capabilities and product road maps, constitutes Confidential Information of OpenBots and Customer Content constitutes Confidential Information of Customer.
- 12.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 9 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.
- 12.3. Exceptions. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- 12.4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection. Notwithstanding the foregoing, Customer acknowledges that OpenBots may retain a copy of the Customer Content in accordance with its record retention guidelines and applicable law.
- 14.1. Warranties by Both Parties. Each Party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement and this Agreement is the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (b) the person signing this Agreement on such Party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security.
- 14.2. No Warranties. THE OPENBOTS SOFTWARE SERVICE IS PROVIDED “AS-IS.” TO THE MAXIMUM EXTENT PERMITTTED BY APPLICABLE LAW, OPENBOTS DISCLAIMS ALL WARRANTIES AND MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE OPENBOTS SOFTWARE SERVICE OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
OPENBOTS SHALL NOT BE RESPONSIBLE FOR ENSURING AND DOES NOT REPRESENT OR WARRANT THAT: (I) THE OPENBOTS SOFTWARE SERVICE WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE OPENBOTS SOFTWARE SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE OPENBOTS SOFTWARE SERVICE CAN BE FOUND OR CORRECTED. OPENBOTS WILL NOT BE RESPONSIBLE FOR: (A) ANY FAILURE TO MEET THE OPENBOTS SOFTWARE SERVICE WARRANTY CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER OR INTEROPERABILITY OF SPECIFIC CUSTOMER CONTENT, OR CUSTOMER INFRASTRUCTURE WITH THE OPENBOTS SOFTWARE SERVICE; (B) LOSS OR CORRUPTION OF DATA; OR (C) THE INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET.
OPENBOTS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE OPENBOTS SOFTWARE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USER’S USE OF AND ACCESS TO THE OPENBOTS SOFTWARE SERVICE IS IN ACCORDANCE WITH APPLICABLE LAW.
- 15.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPENBOTS’ AGGREGATE TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO OPENBOTS UNDER THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- 15.2. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPENBOTS HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR OTHER PECUNIARY DAMAGES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
Subject to Customer’s timely payment of applicable subscription fees provided on the Order Form or any renewal, and compliance with the Terms, OpenBots authorizes Customer, by and through its licensed users, to remotely access and use the On-Premise OpenBots Software Service (the “On-Premise Software”) solely for Customer’s own internal purposes during the Term. This subscription is revocable, non-transferable, non-sublicenseable, and non-exclusive.
- 2.1. Software License. Subject to the terms of the Agreement, this Addendum and any restrictions set forth on an Order Form, OpenBots hereby grants to Customer during the Term, a limited, non-exclusive, non-transferable, non-sublicenseable license to install and use the On-Premise Software solely for Customer’s internal business purposes and solely in accordance with the applicable user manual. Customer is permitted to allow use of the On-Premise Software and user manual by its employees, consultants, and contractors (“Authorized Users”), provided that Authorized Users use and access the On-Premise Software solely on behalf of and for the benefit of the Customer and pursuant to the terms of this Addendum. Customer will be responsible for all acts and omissions of such Authorized Users, as well as any act or omission by any Authorized User that, if undertaken by the Customer, would constitute a breach of the Agreement and/or this Addendum. Customer will make all Authorized Users aware of the provisions of the Agreement and this Addendum as applicable to their use of the On-Premise Software and will cause all Authorized Users to comply with such provisions. Customer may make a reasonable number of copies of the On-Premise Software solely for back-up and archival purposes.
- 2.2. Prohibited Uses. The On-Premise Software is licensed, not sold. Customer will not use the On-Premise Software for any purposes beyond the scope of the licenses granted in this Agreement. Without limiting the generality of the foregoing and except as expressly permitted in this Agreement, Customer will not (and will not permit any third party to): (i) allow use of the On-Premise Software by persons other than Authorized Users; (ii) assign, sublicense, distribute, sell, lease, rent, novate or otherwise transfer or convey the On-Premise Software to any third party, (iii) disclose any applicable software license key to the On-Premise Software to any third party; (iv) pledge as security or otherwise encumber Customer’s right under the licenses granted in this Section 2.2; (v) modify, adapt, translate, publicly display, publish, create derivative works from, or distribute the On-Premise Software (or any component thereof); (vi) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the On-Premise Software, except and only to the extent that applicable law expressly permits such actions despite this limitation – and, in such circumstances, Customer must notify OpenBots and allow OpenBots the opportunity to carry out such actions for a reasonable commercial fee; (vii) use the On-Premise Software as a service bureau, ASP or SaaS offering for third parties; (viii) remove, alter or obscure any proprietary notices or legends from the On-Premise Software or any copies thereof; (ix) resell, commercially exploit, publicly disclose, or otherwise make available to any third party any of the On-Premise Software. All rights not granted under the Agreement are reserved by OpenBots and its licensors (if any).
Subject to the terms and conditions contained in the Agreement, this Addendum, and each Order Form, OpenBots grants to Customer during the applicable Term a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable right to access and use the Usage Based Cloud OpenBots Software Service (the “SAAS Software”) for its intended purposes and for Customer’s internal business purposes only. OpenBots will use commercially reasonable efforts to make the SAAS Software available to Customer.
- 4.1. copy, modify or create derivative works or improvements of the SAAS Software.
- 4.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the SAAS Software to any other person or entity.
- 4.3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the SAAS Software, in whole or in part.
- 4.4. bypass or breach any security device or protection used by the SAAS Software or access or use the SAAS Software other than by an Authorized User.
- 4.5. input, upload, transmit or otherwise provide to or through the SAAS Software, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious computer code.
- 4.6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the SAAS Software provision of services to any third party, in whole or in part.
- 4.7. remove, delete, alter or obscure any trademarks, user manual, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices.
- 4.8. access or use the SAAS Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law.
- 4.9. access or use the SAAS Software for purposes of competitive analysis of the SAAS Software, the development, provision or use of a competing software service or product or any other purpose that is to OpenBots’ detriment or commercial disadvantage.
- 4.10. otherwise access or use the SAAS Software beyond the scope of the authorization granted under Section 1.