AUTOMABOTS TERMS OF SALE
Last Modified: March 10, 2017
THESE TERMS OF SALE CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS OF SALE REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. BY PLACING AN ORDER FOR, USING OR ACCESSING PRODUCTS AND SERVICES (AS DEFINED BELOW), AS APPLICABLE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ACCEPT AND ENTER INTO THESE TERMS OF SALE, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS OF SALE. YOU AFFIRM THAT, IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR LEGAL ENTITY, THEN YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR LEGAL ENTITY TO THESE TERMS OF SALE. YOU MAY NOT ORDER, USE OR OBTAIN PRODUCTS OR SERVICES IF YOU (A) DO NOT AGREE TO THESE TERMS OF SALE, (B) ARE NOT AT LEAST 18 YEARS OF AGE OR (C) ARE NOT DULY AUTHORIZED TO ACCEPT AND ENTER INTO THESE TERMS OF SALE.
Acceptance of Terms of Sale:
These terms of sale and service are entered into by and between you and Automabots, Inc., a Delaware corporation (referred to herein as “Company,” “we,” “our” or “us”). The following terms of sale and service, together with any documents and policies expressly incorporated herein by reference (collectively, these “Terms of Sale”) apply to the offer, purchase and sale of products and services, including any subscription products and services (collectively, “Products and Services” or “Products or Services”), from the Company, including, without limitation, Products and Services offered on, by or through automabots.com (the “Website”). For purposes of these Terms of Sale, the terms “Products and Services” shall include, without limitation, any productivity bot, advertising products and related content and functionality, Subscriptions (as defined below), Data, and where applicable, products and services of third-parties.
Changes to these Terms of Sale:
These Terms of Sale are subject to change, revision, amendment, updating and replacement by the Company from time to time without prior written notice, in our sole discretion. All revisions, replacements, changes and updates to these Terms of Sale are effective immediately when we post them to the Website. You should review these Terms of Sale prior to purchasing any Products or Services.
Your continued use of the Products and Services following the posting of revised, amended, replaced, changed or updated Terms of Sale shall constitute your acceptance of and agreement to such changes to these Terms of Sale. You are expected to check this page from time to time, so that you are aware of any changes to these Terms of Sale, as they are binding on you. Without limiting the generality of the foregoing, we shall not be obligated to notify you of any changes to these Terms of Sale and you acknowledge and agree that you are solely responsible for checking this page from time to time for any changes to these Terms of Sale.
Website Terms of Use; Privacy Policy:
These Terms of Sale are an integral part of the Website Terms of Use that apply generally to the use of the Website. You acknowledge and agree that you have reviewed and understand the Website Terms of Use and our Privacy Policy. You also acknowledge and agree that, by placing an order for Products or Services from the Company and/or accessing or using any Products or Services, you shall abide by, and be subject to, the applicable terms and conditions of the Website Terms of Use and the Privacy Policy.
Order Acceptance:
You acknowledge and agree that your order for Products or Services (each an “Order” and collectively, “Orders”) is an offer to buy, under these Terms of Sale, all Products and Services listed in your Order. We must accept all Orders for Products and Services and we shall not be obligated to accept any Order or to sell such Products and Services to you. We may choose not to accept Orders for Products or Services at our sole discretion, even after we send to you a confirmation e-mail or other written correspondence with your Order number and/or details of the Products or Services that you have ordered.
Subscription Products and Services:
The Company may from time to time offer subscription-based Products and Services, including subscription-based Products and Services through the Website (each a “Subscription” and collectively, “Subscriptions”). If you purchase a Subscription, then the term of such Subscription (the “Subscription Term”) will be as specified in the applicable Order. Unless otherwise specified in the applicable Order, each Subscription Term shall automatically renew for additional Subscription Terms, until the applicable Subscription is canceled in accordance with these Terms of Sale.
For all Subscriptions, you must cancel such Subscriptions at least thirty (30) days before the end of the applicable Subscription Term, in order to avoid billing of Subscription fees for the next Subscription Term. The Company may cancel any Subscription at any time and for any reason upon notice to you, provided that, if you are not in breach or violation of these Terms of Sale (as determined by the Company in its sole discretion), then the Company will refund a pro-rata portion of any applicable Subscription fees paid by you for such Subscription for the remainder of the applicable Subscription Term. We may modify Subscriptions from time to time, including by adding or deleting features and functionality, with or without prior notice.
Fees and Payment Terms
Terms of Payment Generally:
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an Order. We accept the following payment methods for all purchases: Visa, MasterCard, Discovery, and American Express. You represent and warrant that: (i) the credit card or other payment information, as applicable, that you supply to us is true, correct and complete; (ii) you are duly authorized to use such credit card or other payment information, as applicable, for the purchase; (iii) charges incurred by you will be honored by your credit card company and/or bank, as applicable; (iv) you will pay all charges incurred by you at the posted prices and fees, including shipping and handling charges (as applicable), and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your Order. If you are paying by credit card, then you authorize us to charge your credit card or bank account for all prices and fees payable pursuant to your Order. You further authorize us to use a third-party to process payments and consent to the disclosure of your payment information to such third-party.
You agree to keep your contact information, billing information and credit card or bank account information (where applicable) up to date. You acknowledge and agree that all payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in these Terms of Sale.
Accuracy of Prices and Fees:
Fees and prices for Products and Services posted on the Website may be different than fees and prices otherwise offered by the Company. All prices, fees, discounts and promotions posted on the Website are subject to change in our sole discretion without notice. The price or fees charged for a Product or Service will be the price or fees in effect at the time the applicable Order is placed and will be set forth in such Order. Price or fee increases will only apply to Orders placed after such changes; provided, however, that Subscription fees may increase based on the applicable Subscription fees and prices in effect at the time a Subscription Term renews. Posted prices and fees do not include taxes or charges for shipping and handling, as applicable. All such taxes and charges will be added to your Order total and will be itemized in your Order confirmation. We strive to display accurate price and fee information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability of Products and Services. Notwithstanding anything herein to the contrary, we reserve the right to correct any errors, inaccuracies or omissions at any time and to cancel any Orders arising from such occurrences.
Subscription Fees and Payments:
For all Subscriptions, you agree to pay all related Subscription fees and any other fees or charges set forth in the applicable Order in accordance with these Terms of Sale and any payment terms specified in such Order. Unless otherwise specified in these Terms of Sale or the applicable Order, (i) all payment obligations related to Subscription fees are non-cancelable, (ii) all Subscription fees are non-refundable, (iii) and all Subscription fees are based on Subscriptions purchased (and not actual usage of the Subscriptions), and (iv) quantities of Subscriptions purchased cannot be decreased during the relevant Subscription Term. Subscription fees will remain fixed during the applicable Subscription Term, unless you: (i) exceed your user and other applicable limits as set forth herein; (ii) upgrade the Subscription, as applicable; (iii) subscribe to additional features or products, as applicable. If you upgrade a Subscription during the Subscription Term, the Subscription Fees for such upgrades will be pro-rated and they will renew along with your Subscription unless otherwise indicated in the corresponding Order.
If you are paying by credit card or bank account, then you authorize us to charge your credit card or bank account for all Subscription fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
Unless otherwise specified in the applicable Order, all Subscription fees are billed monthly and are payable in advance of the applicable month. During the Subscription Term, the Company (or a third-party payment processing service) will automatically charge your designated credit card or bank account, as applicable, each month for the applicable monthly Subscription fees, until the Subscription is terminated or expires in accordance with these Terms of Sale. You hereby authorize the Company to automatically charge your designated credit card or bank account, as applicable, each month for such monthly Subscription fees.
Subscription Activation Fee
Unless otherwise specified in the corresponding Order or agreed in writing by the Company, a one-time Subscription activation fee will be charged in connection with all Subscriptions, in order to, among other things, set up your Subscription account and integrate the applicable Subscription into your consumer facing website and/or social media platforms, as applicable. All Subscription activation fees are non-refundable once you have used the Subscription and/or implemented the Subscription into your consumer-facing website or social media platforms, as applicable, except as specifically provided for in these Terms of Sale.
Additional Fees:
You acknowledge and agree that you are solely responsible to pay any additional fees and costs required to utilize and make your Subscription operate as advertised, including, without limitation, any and all MLS data licensing and service fees, text and MMS messaging service fees, fees related to third-party integration add-ons, subscriptions and services and any other applicable fees and costs incurred as a result of operating your Subscription. The Company may offer from time to time certain third-party integration add-ons, subscriptions and services, the fees and costs of which (i) you may be required to pay directly to the applicable third-party or (ii) may be billed directly to you by the Company for payment through your preferred payment method. You acknowledge and agree that the Company is not responsible for, and shall not be required to pay, unless agreed in writing by the Company or otherwise specified in the applicable Order, any fees or costs, including subscription fees or costs, related to any third-party integration add-ons, subscriptions or services related to the Subscription.
Subscription Implementation:
In connection with a Subscription for productivity bots or other bots that integrate into your consumer facing website and/or social media platforms, as applicable, following your payment of the applicable Subscription activation fee and first monthly Subscription fee, the Company will deliver to you the corresponding the login credentials to the client dashboard, which provides the instructions and tools for your implementation and integration into your consumer facing website, social media platforms and/or other third-party product integrations, as applicable.
Subscription License; Data
License:
Subject to and conditioned upon your payment of the Subscription fees and Subscription activation fees, as applicable, and your strict compliance with all terms and conditions set forth in these Terms of Sale, the Company hereby grants to you a non-exclusive, non-transferrable, non-sublicensable, revocable, limited license, during the applicable Subscription Term, to use the Subscription and the Data (as defined below) for your internal business purposes only and solely as set forth in these Term of Sale.
Termination; Suspension:
You acknowledge and agree that the foregoing license shall terminate upon the expiration or termination of the Subscription as provided herein. Upon the expiration or termination of the Subscription, you agree that you shall: (i) immediately cease use of the Subscription and the Data; and (ii) immediately remove the corresponding scripts, extensions and/or plugins from your consumer facing website and/or social media platforms, as applicable.
We may suspend or terminate your access to the Subscription and/or Data, including the license herein, for: (a) use of the Subscription, Data or End-User Lead Data that violates these Terms of Sale; (b) use of the Subscription, Data or End-User Lead Data that violates applicable local, state, federal or foreign laws, rules or regulations; (c) repeated complaints from end-users or others regarding your use of the Subscription, Data and/or End-User Lead Data in a manner that is annoying, harassing, defamatory, discriminative, harmful or otherwise immoral (as determined by us in our sole discretion); (d) your failure to pay any fees, including Subscription fees, when due; or (e) your use of the Subscription, Data and/or End-User Lead Data is being used to engage in denial of service attacks or other disruptive activity, is creating a security vulnerability for the Subscription, Data and/or End-User Lead Data or others, is consuming excessive bandwidth or is causing harm to us or others.
Data:
You will retain ownership of all End-User Lead Data (as defined below) that is generated directly from your consumer facing website and/or social media platforms, and you hereby grant to the Company an irrevocable, worldwide, unlimited, perpetual, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon, including for purposes of improving the Products and Services and offering third-party products and services that may benefit end-users, such End-User Lead Data and derivative works thereof. You acknowledge and agree that the Company may assign, transfer and sublicense such rights to others. For purposes of these Terms of Sale, “End-User Lead Data” shall mean the name, telephone number, e-mail address and other direct contact information of your end-user customers.
You acknowledge and agree that, notwithstanding anything herein to the contrary, all data generated through, provided to you, or otherwise collected, by the Company in connection with your use of the Subscription, including, without limitation, all end-user data (except for End-User Lead Data) and analytics related to all end-user data (including End-User Lead Data) (collectively, “Data”), is and shall remain the sole and exclusive property of the Company.
Limitations on Subscription Use; Prohibited Uses
Usage Limits:
Subscriptions may be subject to usage limits, including the usage quantities specified in the applicable Order. Unless otherwise specified in the applicable Order, a quantity in an Order refers to the number of users who may access the Subscription at the same time using the same username or password, and the Subscription may only be accessed by the specified number of users in such Order.
Your Responsibilities:
You have and will retain sole responsibility for: (a) the security and use of your access to the Subscription, Data and End-User Lead Data, including access credentials, logins and passwords; (b) all access to and use of the Subscription, Data and End-User Lead Data directly or indirectly by or through you or your authorized users’ access credentials, logins or passwords, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use; and (c) employing all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer distribution and use of all of your access credentials, logins and passwords.
You acknowledge and agree that you are responsible and liable for all use of the Subscription, Data and End-User Lead Data through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Subscription, Data and End-User Lead Data by all authorized users or by any other person to whom you may provide access to or use of the Subscription, Data and/or End-User Lead Data, whether such access or use is permitted by or in violation of these Terms of Sale.
Prohibited Uses:
You acknowledge and agree that you shall not: (a) make the Subscriptions or Data available to, or use any Subscription or Data or any portion thereof for the benefit of, anyone else except for you; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, license, distribute, retransmit or otherwise make available any Subscription or Data or any portion thereof; (c) use or copy any Subscription or Data or any portion thereof except as expressly permitted herein, in the applicable Order or in writing by Company; (d) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, based on or containing any Subscription or Data or any portion thereof; (e) access any Subscription, Data or End-User Lead Data or any portion thereof to which you are not authorized, or attempt to circumvent any restrictions imposed on your use of or access to any Subscription, Data or End-User Lead Data; (f) create applications, extensions or other products, services or competitive offerings that use any Subscription or Data or any portion thereof without Company’s prior written consent; (g) decompile, disassemble or otherwise reverse engineer any Subscription or Data or any portion thereof (to the extent such restriction is permitted by law); (h) use any Subscription, Data or End-User Lead Data or any portion thereof for any unlawful purpose; (i) use any Subscription, Data or End-User Lead Data or any portion thereof in any way that violates or infringes upon the rights of any third party; (j) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Subscription or Data, including any copy thereof; (k) access or use the Subscription, Data or End-User Lead Data for purposes of competitive analysis of the Subscription or Data, the development of a competing product or service, or any other purpose that is to the Company’s commercial disadvantage; (l) use the Software, Data or End-User Lead Data in violation of these Terms of Sale.
You further acknowledge and agree that you shall not use the Subscription, Data or End-User Lead Data to: (i) solicit others to perform or participate in any unlawful acts; (ii) violate any applicable international, federal, state or local law, regulation or ordinance; (iii) harass, abuse, insult, harm, defame, slander, disparage, intimidate or discriminate based on general, sexual orientation, religion, ethnicity, race, age, national origin or disability; (iv) submit false or misleading information; (v) upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Subscription or any related website, other websites or the Internet; (vi) collect or track the personal information of others; (vii) spam, phish, pharm, pretext, spider, crawl or scrape; or (viii) for any obscene or immoral purpose.
Term and Termination:
These Terms of Sale shall remain in effect until terminated as set forth herein (the “Term”). The Company may terminate these Terms of Sale effective immediately if you breach these Terms of Sale. The Company also may terminate these Terms of Sale effective immediately, if you file, or have filed against you, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of your creditors or apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of your property.
No expiration or termination of these Terms of Sale or any Subscription Term shall affect your obligation to pay all fees, including, without limitation, any Subscription fees, that may have become due before such expiration or termination, or entitle you to any refund. The following Sections shall survive any termination or expiration of these Terms of Sale: Acceptance of Terms of Sale; Changes to these Terms of Sale; Website Terms of Use; Privacy Policy; Fees and Payment Terms; Termination; Suspension; Data; Limitations on Subscription use; Prohibited Uses; Term and Termination; Representations and Warranties; Disclaimer of Warranties; Limitation of Liability; Indemnification; Export Regulation; US Government Rights; Confidential Information; Intellectual Property Rights; Force Majeure; Governing Law and Jurisdiction; Arbitration; Assignment; No Third Party Beneficiaries; Notices; Limitation on Time to File Claim; Waiver and Severability; Entire Agreement; and Notice for California Users.
Limited Support
The Company may make available from time to time limited electronic and web form support for the Products and Services; however, the Company has no obligation to provide in-person or phone support. All support is provided in the Company’s sole and absolute discretion. You acknowledge and agree that the Company does not have any obligation to provide updates, upgrades, bug fixes, patches and other error corrections, including maintenance releases, as applicable, for any Products or Services.
Representations and Warranties:
You represent and warrant that: (i) you have the right to accept and enter into these Terms of Sale and to perform your obligations hereunder; (ii) these Terms of Sale are a valid and binding obligation on you; (iii) you acknowledge and agree that the Company, nor its affiliates, licensors or agents are licensed real estate agents in any jurisdiction; (iv) if you use the Products and Services in connection with your provision of professional services that require a license or registration, then you shall be licensed or registered, as applicable, to practice such profession by the applicable regulatory agency; and (v) you will not use the Products and Services in violation of any federal, state, local or foreign law, rule or regulation.
Disclaimers of Warranties:
YOUR USE OF THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA, IS AT YOUR OWN RISK. THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR AGENTS, MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR AGENTS, REPRESENTS OR WARRANTS THAT THE PRODUCTS AND SERVICES, INCLUDING, WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA, WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA, MEET YOUR NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY AND ANY PERSON ASSOCIATED WITH THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR AGENTS, HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE OR THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO OPINION, ADVICE OR STATEMENT OF THE COMPANY OR ANY PERSON ASSOCIATED WITH THE COMPANY, INCLUDING WITHOUT LIMITATION, THE COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR AGENTS, WHETHER MADE ON THE WEBSITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability:
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PRODUCTS AND SERVICES, INCLUDING, WITHOUT LIMITATION, THE SUBSCRIPTIONS, DATA AND END-USER LEAD DATA, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. FURTHER, THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR AGENTS, HEREBY DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS OR SERVICES THAT YOU USE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO THE COMPANY, IF ANY, IN CONNECTION WITH THESE TERMS OF SALE.
Indemnification:
You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including reasonable attorneys’ fees) arising directly or indirectly out of or relating to (i) your violation of these Terms of Sale, including your use of the Products and Services, including, without limitation, the Subscriptions, Data and End-User Lead Data, in violation of these Terms of Sale; (ii) any breach by you of your representations, warranties, covenants or obligations under these Terms of Sale; and/or (iii) negligence or more culpable act or omission (including recklessness or willful misconduct) by you, any authorized user or any third party on your behalf.
Export Regulation:
The Products and Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Products and Services to, or make the Products and Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining the Company’s prior written consent and any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products and Services available outside the US.
US Government Rights:
The Products and Services may include commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefore, you shall receive only those rights with respect to the applicable Products and Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Confidential Information:
In connection with these Term of Sale, the Company (as the “Disclosing Party”) may disclose or make available to you (as the “Receiving Party”) Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including, without limitation, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, data (including, without limitation, Data), strategies, customers, products, pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Confidential Information shall not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to disclosure to Receiving Party hereunder; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its representative’s noncompliance with these Terms of Sale; (iii) was or is received by the Receiving Party on a non-confidential basis form a Third Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms of Sale; (ii) except as may be permitted under these Terms of Sale, not disclose or permit access to Confidential Information other than to its representatives who (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under these Terms of Sale, (B) have been informed of the confidential nature of the Confidential Information, and (C) are bound by written confidentiality and restricted use obligations at least as protected of the Confidential Information as the terms set forth in these Terms of Sale; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care that it uses to protect is similarly sensitive information and in no event less than a reasonable degree of care; (iv) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take commercially reasonable steps to prevent further unauthorized use or disclosure; and (v) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with the terms of these Terms of Sale.
If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement, so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this section; and (ii) provide reasonable assistance to the Disclosing Party, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required herein, the Receiving Party remains required by law to disclose any Confidential Information, then the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
The Receiving Party acknowledges and agrees that the Disclosing Party considers its Confidential Information to contain trade secrets of the Disclosing Party and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which remedies at law would be inadequate. Accordingly, Receiving Party acknowledges and agrees that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party’s obligations hereunder with respect to the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem just and proper.
Intellectual Property Rights:
You acknowledge and agree that the Products and Services, including, without limitation, the Subscriptions and Data, are provided under license, and not sold, to you. You do not acquire any ownership interest in the Products or Services under these Terms of Sale, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms of Sale. The Company, and its licensors and service providers, as applicable, reserve and shall retain their entire right, title, and interest in and to the Products and Services and all Intellectual Property Rights (as defined below) arising out of or relating to the Products and Services.
You shall use commercially reasonable efforts to safeguard all Products and Services (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. You shall promptly notify the Company if you become aware of any infringement of the Company’s Intellectual Property Rights in the Products and Services and fully cooperate with the Company, at the Company’s sole expense, in any legal action taken by the Company to enforce its Intellectual Property Rights. For purposes of these Terms of Sale, the term “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, trademark, copyright, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
Force Majeure:
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Sale, for any failure or delay in our performance under these Terms of Sale when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Governing Law and Jurisdiction:
All matters relating to these Terms of Sale, including, without limitation, the Products and Services, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).
Except as otherwise provided herein, any legal suit, action, or proceeding arising out of, or related to, these Terms of Sale, including without limitation, the Products and Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City of San Diego and County of San Diego, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Sale in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Arbitration:
At Company’s sole discretion, it may require you to submit any disputes arising from the use of these Terms of Sale or the Website, including, without limitation, disputes arising from or concerning their interpretation, violation, invalidity, non-performance or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law.
Assignment:
You shall not assign any of your rights or delegate any of your obligations under these Terms of Sale without our prior written consent. Any purported assignment or delegation in violation of the foregoing is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale. The Company may assign or delegate its rights and obligations under these Terms of Sale at any time in its sole discretion.
No Third-Party Beneficiaries:
These Terms of Sale are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Sale.
Notices:
To You: We may provide any notice to you under these Terms of sale by: (i) sending a message to the email address you provide; (ii) by posting to the Website; or (ii) via mail to the address reflected on your Order or otherwise provided by you. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. Notices sent by mail will be effective on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. It is your responsibility to keep your email address and mailing address current.
To Us: To give us notice under these Terms of Sale, you must contact us as follows: (i) by e-mail to info@automabots.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Automabots, Inc., 2979 W. Canyon Ave., #C, San Diego, CA 92123, Attn: Chief Executive Officer. We may update our e-mail address or mailing address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective immediately. Notices provided by e-mail or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
Limitation on Time to File Claims:
ANY CAUSE OF ACTION OR CLAIM THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SALE, INCLUDING, WITHOUT LIMITATION, THE PRODUCTS AND SERVICES, MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM SHALL BE PERMANENTLY BARRED.
Waiver and Severability:
No waiver of by the Company of any term or condition set forth in these Terms of Sale shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Sale shall not constitute a waiver of such right or provision.
If any provision of these Terms of Sale is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, then such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Sale shall continue in full force and effect.
Entire Agreement:
The Terms of Sale, the Terms of Use our Privacy Policy and any other policies or documents included herein by reference, constitute the sole and entire agreement between you and the Company regarding the Products and Services and the subject matter herein and supersede any and all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding the Products and Services and the subject matter herein.
Notice for California Users:
Under California Civil Code Section 1789.3, California users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Your Comments and Concerns:
All feedback, comments and other communications relating to the Products and Services should be directed to: info@automabots.com.
