URSROBOT, Inc. Subscription Services Agreement
This Subscription Services Agreement (the “Agreement”) constitutes a legal, binding agreement between URSROBOT, Inc. (“URSROBOT”) and the client identified in the order form (“Client”) for certain archiving or other Services (as defined in Section 1.1) and states the terms upon which URSROBOT provides such Services to Client. The “Effective Date” of the Agreement shall be the date upon which Client first executes the order form for Services (“Order Form”). By executing an Order Form, Client agrees to the terms of this Agreement; provided that, to the extent of any conflicting term, the Order Form shall supersede this Agreement solelywith respect to the conflicting term.
- URSROBOT Services. URSROBOT provides a smartphone application (hereinafter referredto as the “App”) that can be downloaded onto the Client’s smartphone, which provides access and services (hereinafter referred to as the “Services”) to operate URSROBOT’s Nexmow wireless robot lawn mower and virtual marker (“Equipment”). The Services are available to the User for a monthly fee.
Subject to Client’s compliance with this Agreement, URSROBOT will provide, and hereby grantsClient the limited, non-exclusive, non-sublicensable right to access and use URSROBOT’s Equipment and software as a service products, or other services, initially set forth in the order form executed by Client or purchased pursuant to Section 1.2 (“Services”). URSROBOT may modify the Services and the Service Descriptions from time to time by written notification,provided that such modifications do not materially adversely affect the Services.
- Services Following execution of the Order Form, URSROBOT shall initiate activation of the Service by providing Client with access to an account within the applicable Service (“Activation Date”).
- Data Retention. URSROBOT will retain Client Data for the Term of the Agreement, unless Client requests or implements specific retention policies within the For any question orinquiry of the retention of Client Data, Client may submit the request to the email: firstname.lastname@example.org, and URSROBOT will respond to Client’s request within a reasonable timeframe.
Following termination or expiration of this Agreement, URSROBOT will retain the Client Data for a minimum of three (3) months.
- Support & Service Level URSROBOT will provide the level of support applicable to the Service package purchased by Client. Client may find support FAQ’s, or initiate support requests by submitting support tickets, here: https://www.URSROBOT.com/support/
- Usage Licenses. An “Account” means any user, device, email address, mobile phone number, domain or other usage metric indicated on the Order Form for which URSROBOT archives digital message data, hosts email or encrypts messages via the Services. If such Services are ordered by Client, URSROBOT grants Client the right to use the Services for the Account set forth in the Order Form. Usage for Services is measured by the number of digitalproperty maps created and the Equipment Client archives via Services. If such Services are ordered by Client, URSROBOT grants Client the right to use the From time-to-timeURSROBOT may review Client’s account within the Services to validate Client’s usage of the Service for compliance with this Agreement.
2. Fees and Payment
- Client agrees to pay URSROBOT the fees for the Service in accordance with the pricing plan selected by Client, as described on URSROBOT’s website or other marketing materials. The Client will pay the monthly fee for use of each Equipment as defined by TheClient will provide a credit card or other authorized method of payment to the URSROBOT, and the Client authorizes the URSROBOT to charge the monthly fee for use of the App each month. Fees are non-refundable.
- By enrolling in this payment program, Client authorizes URSROBOT to initiate recurring automated clearing house (ACH) debit entries for debit card payment from the checking or savings account Client specifies. The amount debited from Client’s checking or savings accountor charged to Client’s credit card every month will be the then balance on Client’s account. Client’s balance is the amount on monthly invoice Once Client’s enrollment is processed, all payment will be automatically withdrawn from Client’s specified checking or savings account or charged to the designated credit or debit card on the monthly invoice statement due date.
- Client must update all changes to Client’s checking/savings account or credit/debit card information by logging into Client’s account on NEXMOW website to manage payment. If Client does not update Client’s checking/savings account or credit/debit card information andURSROBOT is unable to charge Client’s credit card or withdraw funds from Client’s debit card, checking account, or savings account for the amount due on Client’s monthly invoice, Client may be subject to applicable late fees, returned items charges any fees or charges assessed by Client’s financial institution.
- URSROBOT will make Client’s monthly statement available to Client online. Client canaccess Client’s monthly statement by logging into Client’s account on NEXMOW website and clicking View Invoice. Client agrees to review each bill Client receive and give URSROBOTnotice of any errors or disputed charges at least 72 hours prior to Client’s statement due date.
- URSROBOT shall bear no liability or responsibility for any losses or any kind that may incur as a result of a payment made on items incorrectly billed for any delay in the actual date onwhich Client’s account is debited or Client’s credit card is charged.
- The equipment deposit payment is fully refundable only if the equipment is returned in operating condition and approved by URSROBOT, or an Authorized URSROBOT Dealer Representative at the end of the Term.
3. Client’s Use of the Services.
- Client Client shall create an account within the Services. Client is responsible for (a) ensuring that Client’s account registration information is complete and accurate; and (b) the security and confidentiality of Client’s account credentials. Client shall designate at least one authorized user who shall have administrative access to Client’s account, with full accessprivileges and the authority to place orders under Section 1.2 (“Authorized User”). The Services may only be used by Client’s authorized employees, agents or contractors in the performance of their duties to Client. Client shall notify URSROBOT immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client is solely responsible for all activity which occurs within Client’s account and for the actions of its employees, contractors or agents, whether or not such person is or was acting within the scope of their employment, engagement or agency relationship.
- Acceptable Use Policy. Client is prohibited from, and shall not copy, modify, adapt, transmit,sell, distribute or otherwise use the Services, in whole or in part, except as expressly permitted in this Agreement.
- Return of the Equipment. Client agrees to return the equipment to URSROBOT in the same condition as Client received it, excepted for the ordinary wear and tear, on the date, at the time,and to the authorized location specified by URSROBOT. Client may be subject to applicable later fees, additional operation fees, or any fees or charges rendered by Client’s incompliance of URSRPBOT’s return instruction. If Client wishes to renew Client’s subscription, Client must submit a new Subscription Agreement before the termination date.
- Damage to/Loss of the Equipment. If the equipment is lost or damaged as a direct or indirect result of an act of nature, Client is responsible and Client shall pay URSROBOT for all loss of ordamage to the equipment regardless of cause. If the equipment is damaged, Client will pay the estimated repair cost. If the equipment is lost (e.g. stolen or other reasons), Client shall notify URSROBOT immediately and Client shall be liable for the equipment depreciated value before it was lost. As part of URSROBOT’s loss, Client shall also pay for loss of use of the equipment, without regard to the fleet utilization, together with an administrative fee. Client understands Client are not authorized to repair or have theequipment repaired without URSROBOT’s express prior written consent.
- Client Indemnification. Client shall indemnify, defend and hold harmless URSROBOT, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees), arising from Client’s breach of any of Client’s obligations under this Section Client’s obligation for indemnification shall bepredicated upon (a) URSROBOT providing Client with prompt written notice upon becoming aware of any such claim; provided that, Client shall not be relieved of its obligation for indemnification as the result of URSROBOT’s failure to provide such notice unless Client is actually prejudiced in defending such a claim as a result of URSROBOT’s failure to provide notice; (b) if requested by Client, and at Client’s expense, URSROBOT reasonably cooperating with the defense of such claim; and (c) URSROBOT allowing Client sole and exclusive control over the defense and settlement of any such claim.
- Confidential Information. “Confidential Information” means (a) the non- public business or technical information of either party, including but not limited to information relating to either party’s product plans, customers, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designatedby either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (c) the terms of this Agreement; or (d) Client Data. “Confidential Information” will not include information that: (i) is in, or enters, the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from athird party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independently without reference to the Confidential Information.
- Confidentiality Obligations. Each party agrees: (a) that it will not disclose to any third party, or use for its own benefit or the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; and (b) that it will take reasonable measures to maintain the confidentiality of Confidential Information of the otherparty in its possession or Either party may disclose Confidential Information of the other party: (x) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to contest such order or requirement; or (y) to the parties agents, representatives, subcontractors or service providers who have a need to know such information provided that such party maintain the Confidential Information on a confidential basis.
- Each party acknowledges and agrees that a breach of the obligations of thisSection 4 by the other party will result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by recipient.
5. Intellectual Property Rights.
As between URSROBOT and Client, all server hardware, software and applications required to operate the Services, and other associated technology or documentation, are the sole and exclusive property of URSROBOT. Except as expressly stated herein, nothing in this Agreement shall serve to transfer to Client any intellectual property right in or to the Services, Software, URSROBOT trademarks or other intellectual property. URSROBOT retains all right, title andinterest in and to the Services, Software and the associated technology and documentation. As between URSROBOT and Client, Client Data is the sole and exclusive property of Client and, other than the limited license to Client Data granted in Section 3, nothing in this Agreement shall serve to transfer to URSROBOT any intellectual property right in the Client Data.
6. Third Party Networks, Platforms and Components.
- Certain Services offered by URSROBOT may be dependent on third party software,applications, platforms (such as third party social media or business networking platforms), messaging or communication services or API’s (“Third Party Services”). These Third Party Services are not offered, controlled or provided by URSROBOT. In some cases, the Third Party Service may make changes to its service, or components thereof, or discontinue a service without notice to URSROBOT. Accordingly, URSROBOT expressly disclaims any liability related to, or arising from, these Third Party Services, including Client’s use thereof, or any updates, modifications, outages, delivery failures, corruptions, discontinuance of services or termination of Client’s account by the Third Party Service. URSROBOT is not responsible or liable for how the Third Party Service transmits, accesses, processes, stores, uses or provides data to URSROBOT. Client is solely responsible for complying with any Third Party Services terms and conditions. In order to integrate the Services with certain Third Party Services, Client may be required to provide Client’s or Client’s end user access credentials for the Third Party Service in order to receive Client Data. In such cases, in order to provide the Service, URSROBOT’s access must be approved (a) by Client for all end users or content; or (b) by each individual end user.
- Certain Services require Client to install data capture or other software. Such software may be sublicensed to Client by URSROBOT (“Software”) or Client may be required to license the software directly from a third party. If Software is provided to Client by URSROBOT, URSROBOT grants Client the limited, non-exclusive, non-sublicensable right to download, execute and install the applicable Software onto Client’s end user’s computer, laptop or mobiledevice (as applicable) for which Client has purchased an Account, plus one copy for backup or archival purposes. Client shall not alter, distribute, reproduce, create derivatives of, edit, disassemble or reverse engineer the Software. URSROBOT shall deliver the Software to Client in a good and workmanlike manner and according to industry standards (“Software Performance Warranty”). The foregoing warranty shall expire 30 days following URSROBOT’s delivery of the Software. In the event of a breach of the Software Performance Warranty, URSROBOT will perform its commercially reasonable effort to repair the Software such that it meets the foregoing Software Performance Warranty or provide Client with a replacement. The foregoing represents Client’ssole and exclusive remedy for any loss or claim arising out of the Software. URSROBOT makes no other representation or warranty with respect to the Software, and the Software is provided “AS IS”. URSROBOT is not responsible or liable for (a) changes or modifications made to theSoftware by anyone other than URSROBOT; or (b) any changes, modifications, combinations with other software applications or equipment, conditions or issues on or arising from Client’s systems, servers, networks, or the Internet which affects the use or operation of the Software.
The warranty contained in this Section 6.2, and the obligation to provide support, do not apply toany software which is not provided by URSROBOT or which is licensed by Client directly with the software provider. Where Client licenses software directly from the licensor of such software, Client must contact the licensor support for any issues related to the software.
7. Term and Termination.
- The Agreement shall commence of the Effective Date and shall remain in effect forthe term specified in the Order Form measured from the Activation Date.
- Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30)days following the written notice of such breach to the non-breaching URSROBOTreserves the right to suspend Client’s access to the Services in the event of any breach of this Agreement and shall not be liable for any damages resulting from such suspension.
- Effect of Upon any termination or expiration the Agreement: (a) all rights and licenses to the Services shall immediately terminate; and (b) upon request, each party shall return to the other or delete Confidential Information of the other party, providedhowever, if Client wishes URSROBOT to return Client Data, Client agrees to pay URSROBOT’s then current data extraction and exportation fees. Client shall return equipment to URSROBOTor URSROBOT Authorized Dealer Representative within 7 days of Termination. Client will incurall fees related to the return of the equipment.
8. Warranty and Disclaimers.
- Proper Authority. URSROBOT represents that it has the right and authority to enter intothis Agreement, to grant to Client the rights hereunder, and that the performance of its obligations under this Agreement will not breach or be in conflict with any other agreement to which URSROBOT is a party to.8.2 Compliance with Laws. URSROBOT warrants that it will comply with the laws and regulations applicable to URSROBOT’s business in the performance of the Services.
8.3 THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS SET FORTH IN THIS AGREEMENT, URSROBOT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OTHER INFORMATION OR MATERIALS PROVIDED, OR MADE AVAILABLE, BY URSROBOT. URSROBOT HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. URSROBOT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE OR ERROR FREE. URSROBOT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF URSROBOT.
9. Remedies and Limitation of Liability.
- IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY ORCONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF OR IN CONNECTIONWITH THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. URSROBOT’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO THE PROVISION OF SERVICES, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY URSROBOT FROM CLIENT OR RESELLER FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY URSROBOT RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF.
- URSROBOT will defend Client against third party claims, and indemnify and hold Client harmless against final judgments (including reasonable attorneys’ fees), arising out of a breach of a claim that the Services infringe any United States patent, trademark or copyright, provided that (a) Client provides URSROBOT with prompt written notice upon becoming aware of any such claim; (b) Client reasonably cooperates with URSROBOT in the defense of such claim; and (c) URSROBOT has sole and exclusive control over the defense and settlement of any such claim. Notwithstanding the foregoing, URSROBOT will have no liability of any kind to the extent any claim is based on or arises from: (i) custom functionality provided to Client based on Client’s specific requirements; (ii) any modification of the Services by Client or any third party; (iii) the combination of Services with any technology or other services not provided by URSROBOT; or (iv) the failure of Client to use updated or modified versions of the Services made available by URSROBOT to avoid such a claim. If the Services are subject to a claim ofinfringement of the intellectual property rights of a third party, URSROBOT may, in its sole discretion, either (a) procure for Client the right to continue to use the Services; (b) modify the Services such that they are non-infringing; or (c) if in the reasonable opinion of URSROBOT, neither (a) or (b) are commercially feasible, then URSROBOT may upon thirty (30) days prior notice to Client, terminate the applicable Service.
- The indemnification obligation contained in this Section 10, shall be Client’s sole remedy,and URSROBOT’s sole obligation, with respect to claim of infringement.
11. General Provisions.
- Export The Services, including any software, documentation and any related technical data included with, or contained in the Services, may be subject to United States export control laws and regulations. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing or using the Services. Without limiting the foregoing: (a) Client represents that it is not named on any United States governmentlist of persons or entities prohibited from receiving exports; (b) Client represents that Client will not use the Services in a manner which is prohibited under United States Government export regulations; (c) Client will comply with all United Statesantiboycott laws and regulations; (d) Client shall not provide the Service to any third party, orpermit any User to access or use the Service in violation of any United States export embargo, prohibition or restriction; and (e) Client shall not, and shall not permit any user or third party to, directly or indirectly, export, re-export or release the Services to any jurisdiction or country to which, or any party to whom, the export, re-export or release is prohibited by applicable law, regulation or rule.
- S. Government End User Provisions. URSROBOT provides the Services to federal government end users solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Departmentof Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with URSROBOT 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 any applicable contract or agreement.
- Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without the other’s consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
- Force Majeure. No failure or omission by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder, if the same shall arise from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following, which, for the purpose of this Agreement, shall beregarded as beyond the control of the parties in question: (a) acts of God; (b) acts or omissions of any governmental entity; (c) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (d) fire, storm, flood, earthquake, accident, war, rebellion, insurrection,riot, strikes and lockouts; or (e) utility or telecommunication failures.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict/choice of law Any legalaction or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
- Any legal notice under this Agreement will be in writing and delivered by personaldelivery, express courier, or certified or registered mail, postage prepaid and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) days after deposit in the mail. Notices will be sent to Client at the address set forth on the Order Form or such other address as Client may specify. Notices will be sent to URSROBOT at the following address: URSROBOT, Inc., Attention: Legal, 780 Montague Expressway, Suite 301, San Jose, CA 95131.
- No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each This Agreementwill not be construed to create or imply any partnership, agency, or joint venture.
- Entire Agreement. This Agreement is the complete and exclusive agreement between theparties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, negotiations and communications (both written and oral) regarding such subject matter.
- Client grants URSROBOT the limited right to disclose that Client is acustomer of the URSROBOT. URSROBOT agrees to obtain the prior written approval for any use of Client’s name in any print marketing materials, press release, blog posts, case studies or white papers.
- If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
- Failure of either party to insist on strict performance of any provision herein shallnot be deemed a waiver of any rights or remedies that either party shall have and shall not bedeemed a waiver of any subsequent default of the terms and conditions thereof.
- Electronic Signatures and Communications. The parties agree that electronic signatures,whether digital or encrypted, by an Authorized User or a party’s authorized signatory are intended to authenticate such signatures and give rise to a valid, enforceable, and fully effective agreement. The parties expressly agree that any terms in Client’s purchase order forms, or electronic communications, other than orders placed by Client pursuant to Section 1.2, form no part of this Agreement.
- URSROBOT may make modifications to this Agreement by posting themodifications to the weblink this Agreement is located at. Client agrees to the updated version thirty days following posting of the modified terms without any further notice, or upon execution of an Order Form referencing the updated version number and weblink.