Terms of Service
AUTOMATION HERO, INC
TERMS AND CONDITIONS
Last Updated Date: 09/22/2020
PLEASE READ THESE TERMS AND CONDITIONS (THE “AGREEMENT”) CAREFULLY AS THEY ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND AUTOMATION HERO. THIS AGREEMENT, TOGETHER WITH ANY ORDER FORMS (AS DEFINED BELOW) GOVERN YOUR USE OF OUR SOFTWARE AND CLOUD SERVICES (AS DEFINED BELOW), UNLESS CUSTOMER AND AUTOMATION HERO HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT. BY USING THE SOFTWARE OR CLOUD SERVICES YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE OR CLOUD SERVICES.
IF YOU ARE ACCESSING AND USING THE SOFTWARE OR CLOUD SERVICES ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IN THAT CASE, “CUSTOMER” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY.
1.1 “Account” means an online account that Customer creates using its secure authentication credentials and registering with the Cloud Services.
1.2 “Authorized User” means an employee or contractor of Customer who has: (a) been authorized by Customer to register to access and use the Software or Cloud Services and (b) been assigned unique authentication credentials by Customer or Automation Hero to access and use the Software or Cloud Services. The number of Authorized Users may be subject to limitations in accordance with the Pricing Plan or applicable Order Form.
1.3 “Cloud Services” means Automation Hero’s cloud-based platform services designed for development of business processes automation, including through the use of data integration, data analytics, and machine learning, but excludes any Open Source Software that may be used to provide the Cloud Services. The Cloud Services may be available on an on-demand basis (“On-Demand Services”) or subject to minimum or maximum capacity limitations (“Capacity Services”), and be subject to certain specifications or limitations set forth in the Order Form, if applicable.
1.4 “Customer Data” means any and all information and data (including without limitation, client names, contact details, calendar entries, and emails), text, images, and all other material which Customer inputs or submits into the Cloud Services or (to the extent applicable) the Software (including without limitation, through Automation Hero’s pre-set connectors that connect to a number of public and private third-party data sources or by Customer providing Automation Hero access to its business applications of Third Party Technology).
1.5 “Fees” means the fees that Customer agrees to pay Automation Hero for the access and use of the Software or Cloud Services (and, if applicable, for the Implementation and/or Support) in accordance with the Pricing Plan it chooses or, if Customer and Automation Hero have entered into an Order Form, in accordance with such Order Form.
1.6 “Implementation” means services performed by Automation Hero to configure and rollout the Software or Cloud Services to Customer and its Authorized Users, as described in the applicable Order Form.
1.7 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.8 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (www.opensource.org).
1.9 “Order Form” means an order form executed by Automation Hero and Customer referencing this Agreement. Each Order Form shall be deemed incorporated by reference into this Agreement upon mutual execution.
1.10 “Site” means automationhero.ai and cloud.automationhero.ai and all subdomains thereof.
1.11 “Software” means Automation Hero’s proprietary automation software (including the connectors to various data sources) that allow Customer to develop automation of business processes and is installed, accessed and used on-premise by Customer, as further specified in the Order Form.
1.12 “Support” means support services performed by Automation Hero in relation to the Software or Cloud Services to Customer and its Authorized Users, as described in the applicable Order Form.
1.13 “Plug-Ins and Models” means any and all plug-ins modules, and models for business automation that Customer creates using the Software or Cloud Services.
1.14 “Pricing Plan” means the pricing plan for On-Demand Services that Customer chooses and agrees to pay for from the available options provided by Automation Hero on its Pricing Plans page accessible on the Site.
1.15 “Third Party Technology” means certain third party services or data sources, which are compatible with the Software or Cloud Services, or third party services and technology that Customer uses with or accesses via the Software or Cloud Services.
1.16 “Third Party Technology Terms” means terms of service, click-through agreements or any other agreement or rules, policies or guidelines applicable to the use of any Third Party Technology.
3. CHANGES TO AGREEMENT OR CLOUD SERVICES.
Automation Hero may update this Agreement at any time, in its sole discretion. If Automation Hero does so, it will let Customer know either by posting the updated Agreement on the Site or through other communications. If Customer continues to use the Software or Cloud Services after Automation Hero has posted updated Agreement, Customer agrees to be bound by the updated Agreement. Because the Cloud Services are evolving over time, Automation Hero may change or discontinue all or any part of the Cloud Services, at any time and without notice, at its sole discretion.
4. CLOUD SERVICES.
The following terms apply if Customer is using the Cloud Services
4.1 REGISTRATION; AUTHENTICATION CREDENTIALS; SECURITY
Subject to Customer’s compliance with the terms of this Agreement, Customer may register to use the Cloud Services by creating an online Account. Customer agrees to provide complete, accurate and current information associated with the Account, and will update such registration information promptly should it change or become inaccurate.
4.1.2 Authentication Credentials.
Customer will create a user identification and associated secure access credentials for access to and use of the Cloud Services. Customer will maintain the confidentiality of all user identifications and access credentials and ensure that each user identification number and/or access credentials is used only by Authorized Users. Customer is solely responsible for any and all activities that occur under its Account and all charges incurred from the access to Cloud Services from its Account. Customer will not (and will not allow any Authorized User to) share its access credentials with anyone and will immediately notify Automation Hero of any unauthorized use of Customer’s Account, any user identification and/or access credentials, or any other breach of security known to Customer. Automation Hero shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section 4.1.2.
Automation Hero will deploy industry standard security precautions intended to protect against unauthorized access to any Customer Data stored on the Cloud Services, and will exercise commercially reasonable efforts to deploy corrections within the Cloud Services for security breaches made known to Automation Hero. However, Customer acknowledges that, notwithstanding the security precautions deployed by Automation Hero, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Cloud Services and Customer Data, and Automation Hero disclaims all liability in connection with such security breaches.
4.2.1 License Grant.
Subject to the terms and conditions of this Agreement (including payment of all applicable Fees), Automation Hero hereby grants to Customer during the term of this Agreement, a limited, non-exclusive, non-transferable license (without the right to sublicense) to access and use the Cloud Services for its personal or internal business use only. Customer agrees that any Plug-Ins and Models are for Customer’s personal or internal business only and can only be used in connection with the Cloud Services during the term of this Agreement.
The following terms apply if Customer is using the Software on-premise:
5.1 LICENSE GRANT.
Subject to the terms and conditions of this Agreement (including payment of all applicable Fees), Automation Hero grants Customer a non-exclusive, non-transferable, non-sublicensable license, during the term of this Agreement, to install, access and use the Software, in executable code form, and related documentation, only in the number of Authorized Users, servers and locations specified in the Order Form (“License Configurations”) and solely for Customer’s internal business purposes. Customer agrees that any Plug-Ins and Models are for Customer’s personal or internal business only and can only be used in connection with the Software during the term of this Agreement. Customer may make one copy of the Software for its back-up and archival purposes only during the term of this Agreement.
5.2 OPEN SOURCE SOFTWARE.
Customer acknowledges that the Software contains certain Open Source Software. Customer’s use of the Open Source Software is subject to and governed by the Open Source Software license that accompanies the Open Source Software and is not subject to the terms and conditions of this Agreement, except that this Section 5.2 and Section 13.2 (Warranty Disclaimer) and Section 15 (Limitation of Liability) of this Agreement also govern Customer’s use of the Open Source Software.
5.3 RECORDS; AUDIT.
Customer shall maintain complete and accurate records sufficient to demonstrate Customer’s compliance with the license and use restrictions of this Agreement to include, without limitation, tracking Customer’s use of purchased seat licenses and/or compliance with other License Configurations. Upon Automation Hero’s request, Customer shall provide Automation Hero with a certification signed by an officer of Customer verifying that the Software is being used pursuant to the terms of this Agreement and the Order Form. Automation Hero shall have the right, upon reasonable prior notice to Customer, subject to Customer’s standard security procedures and during Customer’s normal business hours, but not more than once a year to audit Customer’s use and records with respect to the Software solely to verify compliance with this Agreement. In the event any audit reveals an underpayment of fees or noncompliance with this Agreement, Customer shall promptly pay Automation Hero the amount of the underpayment plus accrued interest at the rate set forth in Section 10.3 (Late Payment). If the underpayment is greater than 5%, then the Customer shall reimburse Automation Hero the reasonable out of pocket costs of such audit.
6. CUSTOMER DATA.
Automation Hero does not claim any ownership rights in any Customer Data and nothing in this Agreement will restrict any Customer’s rights to use and exploit its Customer Data. As between Automation Hero and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein belong to and are retained solely by Customer.
6.3 Representations and Warranties.
Customer represents and warrants that (i) it owns or has licenses to all Customer Data and has an unrestricted right to grant the license set forth in Section 6.2 (License); (ii) neither the Customer Data, nor the provision of Customer Data to, or use of the Customer Data by, Automation Hero, as contemplated herein, will infringe any third party Intellectual Property Rights, rights of privacy or publicity, or any other rights; (iii) Customer Data does not contain any viruses, worms, malware, Trojan horses, or other harmful or destructive code; (iv) neither the Customer Data, nor Automation Hero’s use of the Customer Data as contemplated herein violates any applicable law or regulation; (v) neither Customer’s use of the Cloud Services or Software, nor its use of any Third Party Technology in connection with the Cloud Services or Software will violate any Third Party Technology Terms; and (vi) it has complied with all applicable laws (whether local, national or international) in connection with the Customer Data.
Automation Hero may remove any Customer Data stored using, or derived from the use of the Cloud Services or Software or transmitted through the or Software Cloud Services, that violates the terms of this Agreement, without notice to Customer. Notwithstanding the foregoing, Customer acknowledges and agrees that Automation Hero does not monitor or police communications or Customer Data transmitted through the Cloud Services or Software and that Automation Hero will not be responsible for the content of any such communications or transmissions. Customer shall be solely responsible and liable for the completeness, integrity, quality, accuracy, and legality of Customer Data input into the Cloud Services or Software.
6.5 Compliance with Laws.
Customer represents and warrants that it has complied with all applicable laws (whether local, national or international) in connection with the Customer Data. If applicable and to the extent Customer Data includes personally identifiable information (“Personal Information”), Customer has obtained all necessary consents and has complied with all applicable laws, rules, regulations and orders, including without limitation, all data privacy laws, in collecting, processing, using and transferring such Personal Information to Automation Hero for purposes of providing the Cloud Services or Software to Customer under this Agreement.
6.6.1 AUTOMATION HERO WILL FOLLOW ITS STANDARD ARCHIVAL PROCEDURES FOR STORAGE OF ANY CUSTOMER DATA SUBMITTED INTO THE CLOUD SERVICES. IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUCH CUSTOMER DATA, AUTOMATION HERO WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE LOST OR CORRUPTED CUSTOMER DATA FROM THE LATEST BACKUP OF CUSTOMER DATA MAINTAINED BY AUTOMATION HERO AUTOMATION HERO’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 6.6.1 WILL CONSTITUTE AUTOMATION HERO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA SUBMITTED INTO THE CLOUD SERVICES. FOR CLARITY, AUTOMATION HERO SHALL HAVE NO OBLIGATION OR LIABILITY UNDER THIS SECTION 6.6.1 WITH RESPECT TO CUSTOMER DATA INPUT INTO THE SOFTWARE.
6.6.2 AUTOMATION HERO WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER DATA.
7. LICENSE RESTRICTIONS; ACCEPTABLE USE POLICIES.
7.1 License Restrictions.
Customer will not, directly or indirectly, and will not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Software or Cloud Services; (ii) modify, translate, or create derivative works based on any element of the Software or Cloud Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Software or Cloud Services; (iv) use the Software or Cloud Services for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (v) remove any proprietary notices from the Software or other Automation Hero materials furnished or made available to Customer; (vi) perform, publish or disclose to third parties any performance or benchmark tests or analysis relating to the Software or Cloud Services or the use thereof without Automation Hero’s prior written consent; or (vii) use the Software or Cloud Services for any purpose other than its intended purpose.
7.2 Acceptable Use Policies.
Customer will (and will require its Authorized Users to): (i) use the Software and Cloud Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, including Third Party Technology Terms, (ii) not use the Software or Cloud Services to transmit any bulk unsolicited commercial communications, (iii) not circumvent or otherwise interfere with any user authentication or security of the Software or Cloud Services, and will immediately notify Automation Hero of any breach, or attempted breach, of security known to Customer; (iv) not interfere or disrupt networks connected to the Cloud Services or interfere with other ability to access or use the Cloud Services; (v) not interfere with another customer’s use and enjoyment of the Cloud Services; (vi) not run Maillist, Listserv, any form of auto-responder or “spam” on the Software or Cloud Services, or that otherwise interferes with the proper working of the Software or Cloud Services (including by placing an unreasonable load on the Cloud Services infrastructure); and (vii) not launch any program that “crawls,” “scrapes,” or “spiders” any page, data, or portion of the Software or Cloud Services (through use of manual or automated means).
8. IMPLEMENTATION AND SUPPORT.
8.1 If an Order Form includes Implementation or Support, Automation Hero will perform the Implementation or Support to Customer in accordance with this Agreement and the applicable Order Form.
9. CUSTOMER OBLIGATIONS.
9.1 Cooperation and Assistance.
Customer and Authorized Users will provide Automation Hero with good faith cooperation and assistance and make available such information, equipment and support as may be reasonably required by Automation Hero in order to provide the Software or Cloud Services and, if applicable, the Implementation and Support, including, but not limited to, providing Customer Data (to the extent applicable), and security access, information, and software interfaces to Customer’s business applications. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Software or Cloud Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Automation Hero will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
9.2 Marketing Support.
Customer grants to Automation Hero a non-exclusive, limited right to use Customer’s logos and trademarks (collectively, “Marks”) on Automation Hero’ websites and in the production of marketing materials to depict Customer as a customer of Automation Hero. All goodwill developed from such use will be solely for the benefit of Customer.
Customer will ensure that all Authorized Users (if applicable) comply with the terms and conditions of this Agreement. Customer will promptly notify Automation Hero of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Automation Hero with respect to: (a) investigation by Automation Hero of any suspected or alleged violation of this Agreement, and (b) any action by Automation Hero to enforce the terms and conditions of this Agreement. Automation Hero may suspend or terminate any Authorized User’s access to the Software or Cloud Services upon notice to Customer in the event that Automation Hero reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Customer will at all times be responsible for all actions taken under an Authorized User’s Account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. Customer will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
10. FEES AND TAXES.
Customer agrees to pay all Fees in accordance with the Pricing Plan or, if Customer and Automation Hero have executed an Order Form, in accordance with such Order Form. Except as provided for herein, all payment obligations are non-cancelable and Fees paid are non-refundable. Automation Hero may, from time to time, offer limited period discounts, credits, or free trials in connection with the Cloud Services. Customer’s eligibility and terms of participation for any such credits, discounts, trials, or other promotions will be in accordance with its Pricing Plan or applicable Order Form.
If the Fees are set forth in the Pricing Plan, Customer agrees to provide a valid credit card, debit card, or other valid payment information to pay for the Fees in accordance with the Pricing Plan, and authorizes Automation Hero to charge such credit card, debit card, or other valid payment mechanism on as the payment interval set forth in the Pricing Plan for the applicable Fees until the Services are terminated under this Agreement. Customer is responsible for providing complete and accurate billing and contact information to Automation Hero and notifying Automation Hero of any changes to such information.
If the Fees are set forth in an Order Form, Customer agrees to pay all Fees within fifteen (15) days after the date of Automation Hero’s invoice therefor, unless otherwise set forth in the applicable Order Form.
10.3 Late Payment.
In the event that any Fees are not paid by Customer by the due date, then without limiting Automation Hero’s rights and remedies under this Agreement, Automation Hero may charge interest on the outstanding balance at a rate not to exceed the lessor of one and one-half percent (1.5%) per month or the maximum rate permitted by law.
The Fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Automation Hero’s net income).
11.1 Software and Cloud Services.
As between Automation Hero and Customer, all right, title and interest in the Software, Cloud Services, Plug-Ins and Models and any other Automation Hero materials furnished or made available hereunder, and all modifications and improvements thereto, and enhancements and derivative works thereof, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Automation Hero or Automation Hero’s licensors and providers, as applicable.
Customer hereby does and will irrevocably assign to Automation Hero all suggestions, ideas and feedback proposed by Customer regarding the Software or Cloud Services (“Feedback”), and all Intellectual Property Rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Automation Hero may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or Intellectual Property Rights therein cannot be assigned by Customer to Automation Hero, Customer hereby grants to Automation Hero an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Automation Hero those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Automation Hero may reasonably request, to perfect ownership of the Feedback. If Customer is unable or unwilling to execute any such document or take any such action, Automation Hero may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that Automation Hero’s Confidential Information includes the Software, Cloud Services, Feedback, and materials provided with respect to the Software or Cloud Services. The receiving party shall not disclose or use any Confidential Information of the disclosing party, except to perform its obligations and exercise its rights hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder and who are bound by confidentiality obligations at least as stringent as those herein.
Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
12.3 Destruction or Return of Confidential Information.
Upon expiration or termination of this Agreement for any reason, each party shall, subject to Section 16.5 (Effect of Termination), promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly returned or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
13. SOFTWARE WARRANTY; WARRANTY DISCLAIMER.
13.1 Software Warranty.
The following warranty applies if Customer is using the Software on-premise:
Automation Hero represents and warrants that the Software will function substantially in accordance with the documentation for a period of ninety (90) days following the delivery of the Software to Customer. Automation Hero’s sole liability and Customer’s sole remedy for any breach of the foregoing warranty shall be for Automation Hero to promptly repair or replace, at Automation Hero’s option and expense, the Software or, if Automation Hero is unable to repair or replace the Software within a commercially reasonable period, Automation Hero shall refund any pre-paid but unused Fees (if applicable). The warranty set forth in this Section 13.1 shall not apply to the extent that: (i) the Software has been damaged as a result of Customer’s negligence or abuse; (ii) Software has been modified by Customer; provided that the nonconformity arises in connection with, or as a result of such modification; or (iii) Customer’s unauthorized use of the Software or use of Software for purposes not contemplated herein.
13.2 Warranty Disclaimer.
EXCEPT AS PROVIDED IN SECTION 13.1 (SOFTWARE WARRANTY), THE SOFTWARE, CLOUD SERVICES AND, IF APPLICABLE, THE IMPLEMENTATION AND SUPPORT, ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS PROVIDED IN SECTION 13.1 (SOFTWARE WARRANTY), NEITHER AUTOMATION HERO NOR ANY OF ITS LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, IN CONNECTION WITH THE SOFTWARE, CLOUD SERVICES, IMPLEMENTATION, SUPPORT OR ANY BUSINESS PROCESS AUTOMATION THAT CUSTOMER DEVELOPS USING THE SOFTWARE OR CLOUD SERVICES. WITHOUT LIMITING THE FOREGOING, AUTOMATION HERO DISCLAIMS ANY WARRANTY THAT THE SOFTWARE OR CLOUD SERVICES WILL BE ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE USE OF THE SOFTWARE OR CLOUD SERVICES WILL BE UNINTERRUPTED. AUTOMATION HERO AND ITS LICENSORS FURTHER DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, CLOUD SERVICES, IMPLEMENTATION AND SUPPORT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR AGAINST HIDDEN DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW. AUTOMATION HERO FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUTOMATION HERO OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
CUSTOMER UNDERSTANDS AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR ANY BUSINESS PROCESS AUTOMATION IT CREATES INCLUDING, ANY USE, RELIABILITY AND ACCURACY OF SUCH BUSINESS PROCESSES, AND IT RELEASES AUTOMATION HERO FROM ANY AND ALL LIABILITY RELATED TO SUCH BUSINESS PROCESS AUTOMATION.
14.1 Automation Hero Indemnification.
Automation Hero will defend, indemnify and hold Customer and its officers, directors and employees harmless from and against all third-party claims that the Software or the Cloud Services (as applicable), as provided by Automation Hero to Customer pursuant to this Agreement, infringe any U.S. copyright or misappropriates any trade secret of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. The foregoing indemnity shall not apply to any infringement claims to the extent arising out of: (i) any modification of the Software or Cloud Services where the infringement claim would not have arisen but for such modification; (ii) any combination of the Software or Cloud Services with any hardware or software (including any Third Party Technology used by Customer) not provided or approved in writing by Automation Hero where the infringement claim would not have arisen but for such combination; or (iii) any unauthorized use of the Software or Cloud Services by Customer (collectively, “Infringement Exclusions”). Automation Hero’s obligations under this Section 14.1 are conditioned upon: (a) Customer providing Automation Hero with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Automation Hero, at Automation Hero’s expense, in the defense and settlement of such claim (provided that Automation Hero may not settle any claim without Customer’s prior written approval unless the settlement is for a monetary amount, unconditionally releases Customer from all liability without prejudice, does not require any admission by Customer, and does not place restrictions upon Customer’s business, products or services); and (c) Automation Hero having sole authority to defend or settle such claim. THE PROVISIONS OF THIS SECTION 14.1 SET FORTH AUTOMATION HERO’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
14.2 Customer Indemnification.
Customer shall defend, indemnify and hold Automation Hero, its licensors and their respective officers, directors and employees (“Automation Hero Indemnified Parties“) harmless from and against any and all third-party claims which arise out of or relate to: (i) a claim or threat that the Customer Data (and/or the exercise by Automation Hero of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (ii) any claims arising due to Customer’s use of the Software or Cloud Services in violation of this Agreement, or any other Infringement Exclusions, (iii) a claim or allegation that Customer’s use of Third Party Technology or the Software or Cloud Services are in violation of any Third Party Technology Terms, (iv) any claim which if true would amount to a breach of Customer’s representations and warranties under Section 6.3 or 6.5, or (v) Customer’s violation of this Agreement. Customer will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Automation Hero Indemnified Parties. Customer’s obligations under this Section 14.2 are conditioned upon (a) Customer being promptly notified in writing of any claim under this Section 14.2; (b) Customer having the sole and exclusive right to control the defense and settlement of the claim (provided that Customer may not settle any claim without Automation Hero’s prior written approval unless the settlement is for a monetary amount, unconditionally releases Automation Hero from all liability without prejudice, does not require any admission by Automation Hero, and does not place restrictions upon Automation Hero’s business, products or services); and (c) Automation Hero providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. Automation Hero may, at its own expense, engage separate counsel to advise Automation Hero regarding a third-party claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
15. LIMITATION OF LIABILITY.
15.1 Liability Cap.
EXCEPT FOR (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (II) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY ONE PARTY TO THE OTHER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
15.2 Waiver of Consequential Damages.
EXCEPT FOR (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (II) BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AUTOMATION HERO WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
15.3 Essential Purpose.
Customer acknowledges that the terms in this Section 15 are an essential basis of the bargain described in this Agreement and that, were Automation Hero to assume any further liability, the Fees would out of necessity, be set much higher.
The term of this Agreement commences on the date Customer first registers and creates an Account and continues until terminated in accordance with this Agreement. If the parties have entered into an Order Form, the term of this Agreement commences on the effective date set forth therein and continues for the term set forth therein, unless earlier terminated in accordance with this Agreement.
16.2 Termination for Convenience.
16.2.1 Cloud Services: On-Demand Services.
Unless otherwise set forth in an Order Form, Customer shall have the right to terminate its use of On-Demand Services at any time by following the Account cancellation procedure set forth on the Site or by emailing Automation Hero customer support at email@example.com; provided, however, that under no circumstances shall Customer be entitled to any refund of any Fees paid for use of the On-Demand Services. Unless otherwise set forth in an Order Form, Automation Hero may terminate Customer’s access to and use of the On-Demand Services, at our its discretion, at any time and without notice to Customer.
16.2.2 Cloud Services: Capacity Services.
Unless otherwise set forth in an Order Form, no termination for convenience rights apply with respect to Capacity Services.
Unless otherwise set forth in an Order Form, no termination for convenience rights apply with respect to use of the Software.
16.3 Termination for Breach; Insolvency.
Either party may terminate this Agreement (including all Order Forms) upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach. Either party may terminate this Agreement (including all Order Forms) if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other party is liquidated or dissolved.
16.4 Failure to Pay/Customer Conduct.
Automation Hero may suspend or terminate Customer’s access to the Software and/or Cloud Services, at Automation Hero’s sole option, with or without notice to Customer, if: (i) the Fees are not paid when due, (ii) any credit or debit card charge or other payment mechanism for Fees is declined; or (iii) if Customer breaches Section 6.5 (Compliance with Laws) or Section 7 (License Restrictions; Acceptable Use Policies), and such suspension or termination may continue, at Automation Hero’s discretion, until the applicable issue is resolved.
16.5 Effect of Termination.
Upon termination of this Agreement, (a) Customer’s use of and access to the Software and/or Cloud Services (including all Plug-Ins and Models) shall cease, (b) Customer must return or destroy, at Automation Hero’s election, all copies of the Software (including the documentation and all Plug-Ins and Models) in its possession, and provide Automation Hero with an officer’s written certification, certifying to Customer’s compliance with the foregoing, and (c) all Fees and other amounts owed to Automation Hero shall be immediately due and payable by Customer. Automation Hero shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited from doing so, delete all Customer Data in its systems or otherwise in its possession or under its control within a reasonable time after the effective date of any termination of Customer’s Account or this Agreement. In addition, within ten (10) days of the effective date of termination each party shall return to the disclosing party, or at the disclosing party’s option, the receiving party shall destroy, all items of Confidential Information (other than the Customer Data) then in the receiving party’s possession or control, including any copies, extracts or portions thereof.
The following Sections of this Agreement shall survive the termination of this Agreement: Sections 1 (Definitions), 6.3 (Representations and Warranties), 6.5 (Compliance with Laws), 6.6 (Disclaimer), 10 (Fees and Taxes), 11 (Ownership), 12 (Confidentiality), 13.2 (Warranty Disclaimer), 14 (Indemnification), 15 (Limitation of Liability), 16.5 (Effect of Termination), 16.6 (Survival), 17 (Notices) and 18 (General).
Automation Hero may give notice to Customer by means of a general notice through the Cloud Services interface (if applicable), electronic mail to Customer’s e-mail address on record with Automation Hero, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Automation Hero. Customer may give notice to Automation Hero by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Automation Hero Inc, 548 Market St., Suite 58693, San Francisco, CA 94104, USA; Attention: Product Management. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable.
This Agreement may not be assigned or transferred by Customer, without Automation Hero’s prior written consent; provided that, Customer may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets or shares upon written notice to Automation Hero. Any assignment in derogation of the foregoing is null and void. Automation Hero may freely assign or transfer this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. This Agreement (including the Pricing Plan and all applicable Order Forms), and all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. The parties further agree that the exclusive venue and jurisdiction for any dispute arising or relating to this Agreement shall be a court of competent jurisdiction located in San Francisco, California. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. Neither party shall be in breach of this Agreement if its failure to perform any obligation under this Agreement, except for payment of Fees, is caused by events or conditions beyond that party’s reasonable control, including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Software nor ant technical data related thereto nor any direct product thereof are (i) exported or re-exported directly or indirectly in violation of Export Laws, or (ii) intended to be used for any purposes prohibited by the Export Laws. The Software (including the documentation) are “commercial computer software” and “commercial computer software documentation”, respectively, as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. Any use, duplication or disclosure of the Software by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement. Manufacturer is Automation Hero.