Terms of Service
AUTOMATION HERO, INC
TERMS AND CONDITIONS
Last Updated Date: 11/19/2021
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 SERVICES (AS DEFINED BELOW), UNLESS CUSTOMER AND AUTOMATION HERO HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT. BY USING THE SERVICES YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
IF YOU ARE ACCESSING AND USING THE 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. Definitions
1.1 “Account” means an online account that Customer creates using its secure authentication credentials and registering with the 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 Services and (b) been assigned unique authentication credentials by Customer or Automation Hero to access and use the Services.
1.3 “Automation Hero IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, Professional Services and Support, the ML Models, the Plug-Ins and Models, and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
1.4 “Customer Materials” means any and all information, data, content and other materials , in any form or medium, which Customer inputs or submits into Services or is otherwise provided by or on behalf of Customer through the Services or to Automation Hero in connection with Customer’s use of the Services (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 “Documentation” means the user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Automation Hero to Customer (including any revised versions thereof) relating to the Services, which may be updated from time to time.
1.6 “Fees” means the fees that Customer agrees to pay Automation Hero for the access and use of the Services (and, if applicable, for the Professional Services 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.
1.7 “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 “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.
1.9 “Plug-Ins and Models” means any and all plug-ins modules, and models for business automation that Customer creates using the Services.
1.10 “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.
1.11 “Professional Services” means the implementation, training and/or other services, if any, to be provided by Automation Hero as set forth in the applicable Order Form.
1.12 “Services” means Automation Hero’s cloud-based services designed for development of business processes automation, including through the use of data integration, data analytics, and machine learning. The 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.
1.13 “Site” means automationhero.ai and cloud.automationhero.ai and all subdomains thereof.
1.14 “Support” means technical support for the Services, if any, to be provided by Automation Hero, as set forth in the applicable Order Form.
1.15 “Third Party Technology” means certain third party services or data sources, which are compatible with the Services, or third party services and technology that Customer uses with or accesses via the 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.
2. Privacy Policy
Customer acknowledges and agrees that its use of the Services is subject to Automation Hero’s Privacy Policy accessible at https://automationhero.ai/privacy-policy/.
3. Changes to Agreement or 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 Services after Automation Hero has posted updated Agreement, Customer agrees to be bound by the updated Agreement. Because the Services are evolving over time, Automation Hero may change or discontinue all or any part of the Services, at any time and without notice, at its sole discretion.
4. Services
4.1 Registration; Authentication Credentials
4.1.1 Registration
Subject to Customer’s compliance with the terms of this Agreement, Customer may register to use the 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 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 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.
4.2 Services
Subject to the terms and conditions of this Agreement, Automation Hero hereby grants to Customer during the term of this Agreement, a limited, non-exclusive, non-transferable (except in compliance with Section 17) right to access and use the Services in accordance with this Agreement and the Documentation 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 Services during the term of this Agreement.
5. Customer Materials
5.1 Ownership
Automation Hero does not claim any ownership rights in any Customer Materials and nothing in this Agreement will restrict any Customer’s rights to use and exploit its Customer Materials. As between Automation Hero and Customer, subject to the license in Section 5.2 (License), all right, title and interest in the Customer Materials and all Intellectual Property Rights therein belong to and are retained solely by Customer. Customer Materials is Customer’s Confidential Information.
5.2 License
Customer hereby grants to Automation Hero a non-exclusive, non-transferable, sublicensable (only to Automation Hero’s third party service providers who provide services to Automation Hero in connection with the Services), royalty-free, worldwide license to use, host, reproduce, display and perform publicly, distribute, modify and otherwise exploit the Customer Materials solely for the purpose of (a) hosting, operating, improving and providing the Services and Automation Hero’s other related products, services and technologies during the term of this Agreement, and (b) extracting and creating training data (“Training Data”) for use in the training and improvement of Automation Hero’s machine learning models (“ML Models”), during and after the term of this Agreement.
5.3 Representations and Warranties
Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the term of this Agreement, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement, (ii) Automation Hero’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party; (iii) Customer Materials do not contain any viruses, worms, malware, Trojan horses, or other harmful or destructive code; and (iv) neither Customer’s use of the Services, nor its use of any Third Party Technology in connection with the Services will violate any Third Party Technology Terms.
5.4 Integrity
Automation Hero may remove any Customer Materials stored using, or derived from the use of the Services or transmitted through the 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 Materials transmitted through the Services 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 Materials.
5.5 Security
Each party will use commercially reasonable efforts and take no less than industry standard precautions to collect, store, collect, transmit, handle and receive all data received from the other party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.
6. Use Restrictions
Customer will not at any time and will not permit any third party (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Services to any third party, or otherwise allow any third party to use the Services for any purpose; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law or Third Party Technology Terms; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than the Services features provided by Automation Hero for use expressly for such purposes; or (viii) use the Services, Documentation or any other Automation Hero Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
7. Professional Services and Support
7.1 If an Order Form includes Professional Services or Support, Automation Hero will provide the Professional Services or Support to Customer in accordance with this Agreement and the applicable Order Form.
8. Customer Obligations
8.1 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 Services and, if applicable, the Professional Services and Support, including, but not limited to, providing Customer Materials (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 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.
8.2 Marketing Support
Customer grants to Automation Hero a non-exclusive, limited right to use Customer’s logos and trademarks (collectively, “Marks”) on Automation Hero’s 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.
8.3 Authorized Users; Enforcement
Customer may permit Authorized Users to access and use the Services in accordance with this Agreement. The number of Authorized Users may be subject to limitations in accordance with the Pricing Plan or applicable Order Form. Customer will ensure that all Authorized Users 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 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.
9. Fees and Taxes
9.1 Fees
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 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.
9.2 Payments
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.
9.3 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.
9.4 Taxes
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).
10. Ownership
10.1 Automation Hero IP
Subject to the limited rights expressly granted hereunder, Automation Hero reserves and, as between the parties will solely own, the Automation Hero IP and all rights, title and interest in and to the Automation Hero IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
10.2 Feedback
From time to time Customer or its employees, contractors, or representatives may provide Automation Hero with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Automation Hero a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Automation Hero’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
11. Confidentiality
11.1 Obligations
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 Services, the Documentation and the Feedback. 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, provided that Automation Hero may use and modify Customer Materials for purposes of extracting, creating and using Training Data. The receiving party 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.
11.2 Exclusions
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.
11.3 Destruction or Return of Confidential Information
Upon expiration or termination of this Agreement for any reason, the receiving party shall, subject to Section 15.5 (Effect of Termination), promptly return to the disclosing party, or destroy, as the disclosing party’s sole option, all disclosing party’s Confidential Information in its possession or control, and at the disclosing party’s request, certify in writing to the disclosing party that such Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.
12. Professional Services Warranty; Disclaimer
12.1 Professional Services.
If an Order Form includes Professional Services, Automation Hero warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of the Professional Services. As Customer’s sole and exclusive remedy and Automation Hero’s entire liability for any breach of the foregoing warranty, Automation Hero will promptly re-perform any Professional Services that fail to meet this limited warranty.
12.2 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PROFESSIONAL SERVICES, SUPPORT AND OTHER AUTOMATION HERO IP ARE PROVIDED ON AN “AS IS” BASIS, AND AUTOMATION HERO MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE AUTOMATION HERO IP, SERVICES, PROFESSIONAL SERVICES, SUPPORT OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUTOMATION HERO HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, AUTOMATION HERO HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
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.
13. Indemnification
13.1 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 Services 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 Services where the infringement claim would not have arisen but for such modification; (ii) any combination of the 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 Services by Customer (collectively, “Infringement Exclusions”). Automation Hero’s obligations under this Section 13.1 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 13.1 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.
13.2 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) any Customer Materials; (ii) any claims arising due to Customer’s use of the Services or Documentation 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 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 5.3, or (v) Customer’s violation of this Agreement, willful misconduct or fraud. 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 13.2 are conditioned upon (a) Customer being promptly notified in writing of any claim under this Section 13.2; (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.
14. Limitation of Liability
14.1 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 13 (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 OR PAYABLE BY CUSTOMER TO AUTOMATION HERO IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, 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.
14.2 Exclusion of Damages
EXCEPT FOR (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE AUTOMATION HERO IP OR THE PROVISION OF THE SERVICES, PROFESSIONAL SERVICES OR SUPPORT, 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.
14.3 Essential Purpose
Customer acknowledges that the terms in this Section 14 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.
15. Termination
15.1 Term
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.
15.2 Termination for Convenience
15.2.1 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 hi@automationhero.ai; 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 its discretion, at any time upon notice to Customer, provided that in the event of such termination, Automation Hero will provide a pro-rata refund of any prepaid but unused Fees.
15.2.2 Capacity Services
Unless otherwise set forth in an Order Form, no termination for convenience rights apply with respect to Capacity Services.
15.3 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.
15.4 Failure to Pay/Customer Conduct
Automation Hero may suspend or terminate Customer’s access to the 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 (Use Restrictions), and such suspension or termination may continue, at Automation Hero’s discretion, until the applicable issue is resolved.
15.5 Effect of Termination
Upon termination of this Agreement, (a) Customer’s use of and access to the Services (including all Plug-Ins and Models) shall cease, and (b) 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 to Customer any Customer Materials after termination of this Agreement, and Automation Hero shall delete all Customer Materials 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, unless legally prohibited from doing so or unless such Customer Materials are being used by Automation Hero pursuant to the license granted under Section 5.2(b) (License).
15.6 Survival
The following Sections of this Agreement shall survive the termination of this Agreement: Sections 1 (Definitions), 5.2 (License) (in accordance with its terms), 5.3 (Representations and Warranties), 9 (Fees and Taxes), 10 (Ownership), 11 (Confidentiality), 12.2 (Disclaimer), 13 (Indemnification), 14 (Limitation of Liability), 15.5 (Effect of Termination), 15.6 (Survival), 16 (Notices) and 17 (General).
16. Notices
Automation Hero may give notice to Customer by means of a general notice through the Services interface, 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.
17. General
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 will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God. Automation Hero may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Automation Hero remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors, Automation Hero will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Automation Hero. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. The Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.