RoboSource Subscription Agreement
BY EXECUTING A PRODUCTS & SERVICES AGREEMENT (P&SA) THAT INCORPORATES THIS SUBSCRIPTION AGREEMENT, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS OF THE ROBOSOURCE P&SA AND ALL AGREEMENTS REFERRED TO THEREIN. THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER CONFIRMS THAT HE OR SHE HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS THE AUTHORITY TO BIND CUSTOMER AND ITS RELATED PARTIES HERETO. CUSTOMER UNDERSTANDS THAT THE SERVICE IS PROVIDED TO YOU ON AN “AS-IS” BASIS.
Jrbeutler, inc (DBA “RoboSource”) SUBSCRIPTION AGREEMENT
These jrbeutler inc. (“RoboSource”) TERMS AND CONDITIONS with the Products & Services Agreement, (the “Agreement”), effective as of the Effective Date (defined below), is by and between RoboSource and Customer (together with RoboSource, the“Parties”).
The Parties agree:
Article 1. SERVICES.
Section 1.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, RoboSource shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Subscriptions described in the Initial Products & Services Agreement and this Agreement (collectively, the “Subscriptions”) in accordance with these Terms and Conditions which may be updated from time to time (collectively the “Specifications”). Additional Subscriptions can be added by the execution of a “Change Order.”
Section 1.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
- RoboSource has and will retain sole control over the operation, provision, maintenance, and management of the Subscriptions and RoboSource Materials, including the: (i) RoboSource Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of support services and service maintenance, upgrades, corrections and repairs; and
- Customer has and will retain sole control over the operation, maintenance and
management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Subscriptions and RoboSource Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any information, instructions or materials provided by any of them to the Subscriptions and results obtained from any use of the Subscriptions or RoboSource Materials.
Section 1.3 Changes. RoboSource reserves the right, in its sole discretion, to make any changes to the Subscriptions and RoboSource Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of RoboSource’s solutions to its customers, (ii) the competitive strength of, or market for, RoboSource’s solutions or (iii) the Subscriptions’ cost efficiency or performance; or (b) to comply with applicable Law.
Section 1.4 Subcontractors. RoboSource may from time to time in its discretion engage third parties to perform Subscriptions (each, a “Subcontractor”).
Section 1.5 Suspension or Termination of Services. RoboSource may, directly or indirectly, and by any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Subscriptions or RoboSource Materials, without incurring any resulting obligation or liability, if: (a) RoboSource receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires RoboSource to do so; or (b) RoboSource believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Subscriptions beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Subscriptions; or (iii) this Agreement expires or is terminated. This Section 1.5 does not limit any of RoboSource’s other rights or remedies, whether at law, in equity or under this Agreement. Customer may terminate this agreement with 60 days of written notice.
Article 2. AUTHORIZATION AND CUSTOMER RESTRICTIONS.
Section 2.2 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Subscriptions, RoboSource Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title, and interest in and to the Subscriptions, RoboSource Materials and the Third-Party Materials are and will remain with RoboSource and the respective rights holders in the Third-Party Materials.
Section 2.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Subscriptions or RoboSource Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer nor its agent shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Subscriptions or RoboSource Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Subscriptions or RoboSource Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Subscriptions or RoboSourcevMaterials, in whole or in part;
(d) bypass or breach any security device or protection used by the Subscriptions or RoboSource Materials or access or use the Subscriptions or RoboSource Materials other than by an Authorized User through the use of his or her own then valid access credentials;
(e) input, upload, transmit or otherwise provide to or through the Subscriptions of RoboSource Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Subscriptions, RoboSource Systems or RoboSource’s provision of Subscriptions to any third party, in whole or in part;
(h) access or use the Subscriptions or RoboSource Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other RoboSource customer), or that violates any applicable Law;
(i) access or use the Subscriptions or RoboSource Materials for purposes of competitive analysis of the Subscriptions or RoboSource Materials, the development, provision or use of a competing software service or product or any other purpose that is to RoboSource’s detriment or commercial disadvantage; or
Article 3. OTHERWISE ACCESS OR USE THE SUBSCRIPTIONS OR RoboSource MATERIALS BEYOND THE SCOPE OF THE AUTHORIZATION GRANTED UNDER SECTION 2.1. CUSTOMER OBLIGATIONS.
Section 3.1 Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Subscriptions are accessed or used;
(b) provide RoboSource Personnel with such access to Customer’s premises and Customer Systems as is necessary for RoboSource to manage the Subscriptions in accordance with the availability requirements and Specifications;
(c) provide all cooperation and assistance as RoboSource may reasonably request to enable RoboSource to exercise its rights and perform its obligations under and in connection with this Agreement; and
(d) notify RoboSource in advance of any changes to Customer Systems that may impact the performance of RoboSource solutions so RoboSource and Customer may collaboratively re-engineer the RoboSource solutions to ensure that they will fully and accurately function following the implementation of changes to the Customer Systems.
Section 3.2 Effect of Customer Failure or Delay. RoboSource is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
Section 3.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.3, Customer shall, and shall cause its Authorized Users to, immediately:
(a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Subscriptions and RoboSource Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and
(b) notify RoboSource of any such actual or threatened activity.
Article 4. SECURITY.
Section 4.1 RoboSource Systems and Security Obligations. RoboSource shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data.
Section 4.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Subscriptions; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Subscriptions and RoboSource Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, that access or use.
Section 4.3 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of to the RoboSource service; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by RoboSource.
Article 5. FEES; PAYMENT TERMS.
Section 5.1 Fees. Customer shall pay RoboSource the fees set forth in each Products & Services Agreement as modified by any Change Orders (“Fees”) in accordance with this Article 5. Customer may also incur charges from third-party service providers that are separate and apart from the amounts charged by RoboSource. Customer agrees that all such charges are Customer’s sole responsibility.
Section 5.2 Service Order Renewal Terms. Unless otherwise provided in a Product & Services Agreement, each Product & Services Agreement will automatically annually renew for additional terms of one year (12 months) unless either Customer or RoboSource gives the other written notice of non-renewal at least thirty (30) days prior to the end of the then current Term by sending notice to email@example.com of their intent to not renew the term of the Product & Services Agreement. If customer gives said notice, the Product & Services Agreement will then, following the expiration of the then-current Term, continue on a month-to-month basis and the Monthly Recurring Charges (“MRCs”) for the Service(s) identified in the Product & Services Agreement will automatically increase by 12% for the first twelve (12) months of use. Additional MRC increases may be instituted following the first twelve (12) months of month-to-month services at RoboSource’s sole discretion. Such MRC increases shall be communicated to Customer at least thirty (30) days in advance of the MRC increase effective date.
Section 5.3 Disconnect, Deactivate or Removal of any Service. If Customer wishes to disconnect, deactivate, and/or remove any Service(s) identified in the given Product & Services Agreement upon the expiration of the Service Term of the Product & Services Agreement, Customer, by one of its Authorized Users, must send the written notice at least thirty (30) days, but no more than one hundred eighty (180) days, prior to the end of the then current Term to firstname.lastname@example.org. If Customer fails to provide the written notice required by this paragraph, the Service Term of the Product & Services Agreement in question will automatically renew for a duration of twelve (12) months for all the Services or Products stated in the given Product & Services Agreement.
Section 5.4 Fee Increases. Nothing in this section shall limit or otherwise reduce Customer’s obligation to pay an Early Termination Fee, if applicable. RoboSource may increase Fees for any contract year following the expiration of any initial or renewal Term of a Product & Services Agreement by providing written notice to Customer at least ninety (90) calendar days prior to the commencement of that contract year, and the Product & Services Agreement will be deemed amended accordingly.
Section 5.5 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on RoboSource’s income.
Section 5.6 Charges and Billings. Within fifteen (15) days of the date on which Customer executes each Product & Services Agreement, Customer shall pay RoboSource all of the nonrecurring charges designated on such Product & Services Agreement as “Implementation Fee.” Customer further agrees to pay RoboSource all charges associated with the Services and/or Products as stated in each Product & Services Agreement, including without limitation the “Monthly Recurring Charges” (“MRC”) for each Service or Product. In the event that some, but not all, Products and/or Services associated with a Product & Services Agreement are installed or activated, Customer agrees to pay RoboSource the MRCs and Additional Charges associated with those Services that are installed or activated even though the Effective Date for the entire Product & Services Agreement has not commenced.
Section 5.7 Payment. Upon commencement of the entire Product & Services Agreement, Customer shall pay all Fees within fifteen (15) days after the date the invoice is sent to Customer at the email address specified in accordance with Section 14.4. Customer shall make payments to the address or account specified in Initial Product & Services Agreement or such other address or account as RoboSource may specify in writing from time to time.
Section 5.8 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) RoboSource may charge interest on the past due amount at the rate of 1.5% or $25.00, whichever is greater, per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse RoboSource for all costs incurred by RoboSource in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, RoboSource may suspend performance of the Subscriptions until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
Section 5.9 No Deductions or Setoffs. All amounts payable to RoboSource under this Agreement shall be paid by Customer to RoboSource in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than service credits issued by RoboSource or any deduction or withholding of tax as may be required by applicable Law).
Article 6. INTELLECTUAL PROPERTY RIGHTS.
Section 6.1 Services and RoboSource Materials. All right, title, and interest in and to the Subscriptions and RoboSource Materials, including all Intellectual Property Rights therein, are and will remain with RoboSource and the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Subscriptions or RoboSource Materials (including Third Party Materials) except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 2.3 All other rights in and to the Subscriptions and RoboSource Materials (including Third Party Materials) are expressly reserved by RoboSource and the respective third-party licensors.
Section 6.2 Customer Data. As between Customer and RoboSource, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6.3.
Section 6.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to RoboSource, its Affiliates, its Subcontractors and RoboSource Personnel as are necessary or useful to perform or improve the
Section 6.4 Compliance with the Digital Millennium Copyright Act. RoboSource abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by RoboSource and that is claimed to be infringing, in which case we will make a good faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. RoboSource does not control content hosted on third party websites, and we cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third-party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed. Before serving either a Notice of Infringing Material or a Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with RoboSource’s rights and obligations under the DMCA and, in particular, section 512(c). They do not constitute legal advice.
Section 6.5 Filing a Notice of Infringing Material Under the DMCA. To file a notice of infringing material on a site owned or controlled by RoboSource, please provide a notification containing the following details:
- Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example, the title, author, any registration or tracking number, and URL);
- Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example, a link to the page that contains the material);
- Your contact information so that we can contact you (for example, your address, telephone number, or email address);
- A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;
- A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
- Your physical or electronic signature.
Article 7. CONFIDENTIALITY.
Section 7.1 Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing
Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing: all RoboSource Materials and this Agreement are the Confidential Information of RoboSource.
Section 7.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Section 7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 7.3(e), not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section Article 7.
(e) Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.3(e), the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Article 8. TERM AND TERMINATION.
Section 8.1 Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until six (6) months after the last Product & Services Agreement Term to expire (the “Term”).
Section 8.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) RoboSource may terminate this Agreement, effective upon written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and the failure continues more than thirty (30) days after RoboSource’s delivery of written notice of failure to pay; or (ii) breaches any of its obligations under Section 2.3 or Article 7.
(b) either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) makes or seeks to make a general assignment for the benefit of its creditors; or (iii) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Section 8.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
(b) RoboSource shall immediately cease all use of any non-anonymized Customer Data or Customer’s Confidential Information and (i) at Customer’s written request, return to Customer or destroy, all documents and tangible materials containing, reflecting, incorporating or based on non-anonymized Customer Data or Customer’s Confidential Information; and (ii) permanently erase all non-anonymized Customer Data and Customer’s Confidential Information from all systems RoboSource directly or indirectly controls;
(c) Customer shall immediately cease all use of any Subscriptions or RoboSource Materials and (i) at RoboSource’s written request return to RoboSource or destroy all documents and tangible materials containing, reflecting, incorporating or based on RoboSource’s Confidential Information; and (ii) permanently erase RoboSource’s Confidential Information from all systems Customer directly or indirectly controls;
(d) if Customer terminates this Agreement pursuant to Section 8.2(b), Customer will be relieved of any obligation to pay any Fees (including Early Termination Fees) attributable to the period after the effective date of the termination and RoboSource will refund to Customer Fees paid in advance for Subscriptions that RoboSource has not performed as of the effective date of termination;
(e) if RoboSource terminates this Agreement pursuant to Section 8.2(a) or Section 8.2(b), or if the Customer Terminates this Agreement or any Service Order at any time prior to the expiration of any Service Term of any Service Order for convenience, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and any expenses that are reimbursable, on receipt of RoboSource’s invoice. These Early Termination Fees are calculated pursuant to the definition of “Early Termination Fee” set forth in the Definitions. Customer agrees that the amount of the Early Termination Fee is a genuine estimate of RoboSource’s actual damages resulting from an early termination of the Services, and therefore for the sake of efficiency, economy and convenience, the Early Termination Fee set forth herein constitutes liquidated damages, is reasonable, and is not intended as a penalty or to be punitive in nature.
Section 8.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 2.3, Article 7, Section 8.3, this Section 8.4, Article 9, Article 10, Article 11 and Article 13.
Article 9. REPRESENTATIONS AND WARRANTIES.
Section 9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of the Party; and
(d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of the Party, enforceable against the Party in accordance with its terms.
Section 9.2 Additional RoboSource Representations, Warranties and Covenants. RoboSource represents, warrants, and covenants to Customer that RoboSource will perform the Subscriptions using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
Section 9.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants, and covenants to RoboSource that Customer owns, has licensed, and/or otherwise has obtained the rights to use the Customer data and the necessary and appropriate consents in and relating to the Customer Data so that, as received by RoboSource and processed in accordance with this Agreement and/or in any way contemplated or agreed upon pursuant to this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
Section 9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, SECTION 9.2 AND SECTION 9.3, ALL ROBOSOURCE SERVICES AND ROBOSOURCE MATERIALS ARE PROVIDED “AS IS” AND ROBOSOURCE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND ROBOSOURCE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ROBOSOURCE MAKES NO WARRANTY OF ANY KIND THAT THE ROBOSOURCE SERVICES OR ROBOSOURCE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER ROBOSOURCE SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Article 10. INDEMNIFICATION.
Section 10.1 RoboSource Indemnification. RoboSource shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of Customer) to the extent that such Losses arise from any allegation in the Action that Customer’s use of the Subscriptions (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes an Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: access to or use of the Subscriptions or RoboSource Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by RoboSource;
(a) modification of the Subscriptions or RoboSource Materials other than: (i) by or on
behalf of RoboSource; or (ii) with RoboSource’s written approval in accordance with RoboSource’s written specification;
(b) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of RoboSource; or
(c) act, omission, or other matter described in Section 10.2(a), Section 10.2(b), Section 10.2(c) or Section 10.2(d), whether or not the same results in any Action against or Losses by any RoboSource Indemnitee.
Section 10.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless RoboSource and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “RoboSource Indemnitee”) from and against any and all Losses incurred by such RoboSource Indemnitee in connection with any Action by a third party (other than an Affiliate of a RoboSource Indemnitee) to the extent that such Losses arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of RoboSource in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including RoboSource’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by RoboSource;
(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
Section 10.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which the Party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Article 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Section 10.4 Mitigation. If any of the Subscriptions or RoboSource Materials are, or in RoboSource’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Subscriptions or RoboSource Materials is enjoined or threatened to be enjoined, RoboSource may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Subscriptions and RoboSource Materials materially as contemplated by this Agreement;
(b) modify or replace the Subscriptions and RoboSource Materials, in whole or in part, to seek to make the Subscriptions and RoboSource Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Subscriptions and RoboSource Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Subscriptions and RoboSource Materials, and require Customer to immediately cease any use of the Subscriptions and RoboSource Materials or any specified part or feature thereof.
THIS ARTICLE 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ROBOSOURCE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE ROBOSOURCE SERVICES AND ROBOSOURCE MATERIALS) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Article 11. LIMITATIONS OF LIABILITY.
Section 11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL ROBOSOURCE OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE ROBOSOURCE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO THE SERVICE LEVEL AGREEMENT; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Section 11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF ROBOSOURCE AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO ROBOSOURCE UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRIOR TO THE DATE SUCH LIABILITY ARISES. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Article 12. FORCE MAJEURE.
Section 12.1 No Breach or Default. In no event will RoboSource be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond RoboSource‘s reasonable control (a “Force Majeure Event”), including acts of God, epidemic, pandemic, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
Section 12.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, RoboSource shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
Article 13. DEFINITIONS.
Section 13.1 Defined Terms. The following terms shall have the specified meanings.
“Access Credentials” means any username, identification number, password, license, or security key, security token, PIN, or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use RoboSource.
“Action” has the meaning set forth in Section 10.1.
“Affiliate” of a party means any entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
“Agreement” has the meaning set forth in the caption.
“Authorized User” means each of the individuals authorized to use the Subscriptions pursuant to Section 2.1 and the other terms and conditions of this Agreement as described in the relevant Service Order.
“Change Order” has the meaning set forth in Section 1.1
“Confidential Information” has the meaning set forth in Section 7.1.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Subscriptions or that incorporates or is derived from the Processing of the information, data, or content by or through the Subscriptions.
“Customer Failure” has the meaning set forth in Section 3.2.
“Customer Systems” has the meaning set forth in Section 4.2.
“Customer” has the meaning set forth in the caption.
“Disclosing Party” has the meaning set forth in Section 7.1.
“Documentation” means any manuals, instructions or other documents or materials that RoboSource provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Subscriptions or RoboSource Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Early Termination Fee” means with respect to each existing Service Order, an amount equal to: (a) the number of months remaining in the Service Term of the applicable Service Order from the Termination Date through the end of the applicable Service Term, multiplied by the MRCs with respect to each Service that is terminated; plus (b) all Charges that are unpaid as of the Termination Date; plus (c) all costs and expenses incurred by RoboSource in disconnecting such Service; plus (d) any other amounts required to be paid by Customer pursuant to the applicable Product & Services Agreement.
“Effective Date” shall be the date in which the Subscription specified on a Product & Services Agreement is available for use by the Customer (i.e., “goes live”). For further clarification and the avoidance of any doubt, the Effective Date will be the date in which all services specified on a given Product & Services Agreement are live and ready for Customer use (i.e., not in a development or testing phase).
“Fees” means all NRCs, MRCs, Usage Fees, Additional Fees, and Costs and any and all other amounts payable by Customer pursuant to this Subscription Agreement as more fully defined in Article 6.
“Force Majeure Event” has the meaning set forth in Section 12.1.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Subscriptions or RoboSource Systems as intended by this Agreement. Harmful Code does not include any RoboSource Disabling Device.
“Indemnitee” has the meaning set forth in Section 10.3.
“Indemnitor” has the meaning set forth in Section 10.3.
“Initial Service Order” has the meaning set forth in the caption.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“MRC” means the monthly recurring charges associated with a Service or rental of hardware.
“NRC” means the non-recurring charges associated with a Service or a hardware purchase.
“Permitted Use” means any use of the Subscriptions by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” means to take any action or perform any operation or set of operations that the Subscription Service is capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Product & Services Agreement Term” means the term for the Subscriptions specified in the relevant Product & Services Agreement as the term may be renewed.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“RoboSource Disabling Device” means any software, hardware, or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by RoboSource or its designee to disable Customer’s or any Authorized User’s access to or use of the Subscriptions automatically with the passage of time or under the positive control of RoboSource or its designee.
“RoboSource Indemnitee” has the meaning set forth in Section 10.2.
“RoboSource Materials” means the Service Software, Specifications, Documentation, and RoboSource Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by RoboSource or any Subcontractor in connection with the Subscriptions or otherwise comprise or relate to the Subscriptions or RoboSource Systems. For the avoidance of doubt, RoboSource Materials include any information, data, or other content derived from RoboSource’s monitoring of Customer’s access to or use of the Subscriptions.
“RoboSource Personnel” means all individuals involved in the performance of Subscriptions as employees, agents, or independent contractors of RoboSource or any Subcontractor.
“RoboSource Systems” means the information technology infrastructure used by or on behalf of RoboSource in performing the Subscriptions, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by RoboSource or through the use of third-party services.
“RoboSource” has the meaning set forth in the caption.
“Service Level Agreement” means the Service Level Agreement as maintained by RoboSource.
“Specification” has the meaning set forth in Section 1.1.
“Subcontractor” has the meaning set forth in Section 1.4.
“Subscriptions” has the meaning set forth in Section 1.1.
“Term” has the meaning set forth in Section 8.1.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Subscriptions that are not proprietary to RoboSource.
Article 14. MISCELLANEOUS.
Section 14.1 Further Assurances. Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
Section 14.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Section 14.3 Public Announcements. Neither Party shall issue or release any announcement, statement, or press release relating to this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, provided, however, that RoboSource may, without Customer’s consent, include Customer’s name in its lists of RoboSource’s current or former customers of RoboSource in promotional and marketing materials.
Section 14.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing to such address and person that the Party may designate from time to time in accordance with this Section 14.4:
PO Box 753
Carmel, IN 46082
Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, e-mail, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Section 14.5 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Section 14.6 Assignment. Customer agrees that the RoboSource account is not transferable, and this Agreement may not be assigned by Customer without RoboSource’s prior written consent, which consent RoboSource may give or withhold in its sole discretion.
Section 14.7 Waiver and Severability of Terms. The failure of RoboSource to exercise or enforce any right or provision of this Agreement shall constitute a waiver of such right or provision. If any provision of this Agreement is found, by a court of competent jurisdiction, to be invalid the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the provisions of this Agreement remain in full force and effect.
Section 14.8 Governing Law; Submission to Jurisdiction. This Agreement and the relationship between the Parties shall be governed by the laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Indiana. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Indiana, in each case located in the city of Fishers and County of Hamilton, and each Party irrevocably submits to the exclusive jurisdiction of those courts in suit, action, or proceeding. Service of process, summons, notice, or other document by mail to the Party’s address set forth in this agreement shall be effective service of process for any suit, action, or other proceeding brought in these courts.
Section 14.9 Changes to this Agreement. At our discretion, we may change our the subscription agreement to reflect current acceptable practices. We will take reasonable steps to let users know about changes via our website. Your continued use of this site after any changes to this agreement will be regarded as acceptance of our practices around privacy and personal information. If we make a significant change to this subscription agreement we will ask you to re-consent to the amended agreement.
Section 14.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by the Party of any of its obligations under Article 8 or, in the case of Customer, Section 2.3 or Section 3.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Section 14.11 Non-disparagement. Customer will not disparage Company, its officers, directors, employees, agents, successors, and assigns, or any Products or Services offered by Company, nor will it engage in activities that might injure the goodwill of Company, its officers, directors, employees, agents, successors, and assigns, or its Products or Services. Customer’s failure to comply with the terms of this provision will entitle Company to immediately terminate this Agreement and for the injured party(ies) to recover any and all damages arising from or relating to Customer’s disparagement.
Section 14.12 Non-Solicitation. The parties hereto agree not to hire or attempt to hire employees of the other party involved in the performance of this Agreement, without the prior, written consent of the other party, during the Term, as defined in the Products & Services Agreement, and for a period of twelve (12) months from the date of non-renewal or termination of this Agreement. Notwithstanding the foregoing, either party may hire any employee of the other party who has responded to general announcements for a position that has been publicized in various ways, including, but not limited to, Internet postings, local or national newspapers, radio or television advertising, job fairs, notices to colleges or technical schools, or placement professionals.
Download PDF of Subscription Agreement here: RoboSource Subscription Agreement