SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement (this “Saas Agreement”), is made and entered into as of _____________, 202_ (the “Effective Date”), by and between RoboKind, LLC, a Texas limited liability company with its principal place of business at PO Box 130299, Dallas, Texas 75313 (“RoboKind”), and _________________________, a ________________ with offices located at _______________________ (“Customer”). RoboKind and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- DESCRIPTION OF THE SAAS SERVICES. RoboKind is a provider of autism and STEM focused programs designed to help students learn through the use of patent-protected humanoid robots and cloud-based curriculum, provided as software offered in connection with the robots and accessories, or offered as a stand-alone, unique software-as-a-service (“SaaS Service(s)” as defined in Section 3), and through related Services (as defined in Section 3) where RoboKind owns the software and operating hardware and makes the robots, accessories, Software, and Services available directly to Customers and End Users. RoboKind also provides consulting services relating to its SaaS Services and Services (“Professional Services”). This SaaS Agreement will apply to all orders and statements of work for SaaS Services or related Professional Services (“Purchase Orders”) entered into between RoboKind and Customer during the term of this Agreement with respect to the SaaS Services or related Professional Services provided to Customer by RoboKind, unless the parties expressly agree otherwise in writing. From time to time the parties may add new Purchase Orders, which, upon execution by the applicable parties, will be subject to the terms and conditions of this SaaS Agreement. This SaaS Agreement contains the terms and conditions that govern Customer’s and End User’s (as defined in Section 3) access and use of the SaaS Services and related Professional Services. Capitalized terms and phrases used in this SaaS Agreement and any Purchase Order will have the meanings as defined in Section 3 below, otherwise as set forth in the context in which they are used.
- EXHIBITS. The following agreements are incorporated in full as part of this SaaS Agreement:
Exhibit A: SaaS Services Subscription terms, descriptions and pricing
Exhibit B: Technical Service and Support Level Agreement
Exhibit C: Professional Services Statement of Work
Exhibit D: Data Sharing Agreement
Exhibit E: RoboKind, LLC Customer Terms and Conditions Agreement (the “Customer Agreement”)
- DEFINITIONS. For purposes of this Agreement, the following terms will have the following meanings:
- “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by RoboKind in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Customer Data” means, other than Aggregated Statistics, its confidential information and any and all data and information (such as electronic files, materials, data, text, audio, video, images, etc.) uploaded, transmitted, stored, retrieved, processed, submitted, or otherwise made available by or on behalf of Customer or an End User through the Services. Such Customer Data shall also be subject to the terms of the Data Sharing Agreement.
- “Data Sharing Agreement” means an agreement that as part of RoboKind’s legal obligations to comply with the privacy, data sharing, and confidential information provisions of the Health Insurance Portability and Accountability Act (“HIPPA”) and the Family Education Rights and Privacy Act (“FERPA”) regulations, as they apply to this Agreement and to RoboKind’s business relationships with its Customers, each Customer may be required to enter into regarding the storage, use, and disclosure of any data obtained or shared as part of this SaaS Agreement. Such data may include but not be limited to Customer Data, individually-identifiable health information, and data regarding student education records and other confidential information. The Data Sharing Agreement shall be substantially in the form set forth in Exhibit D, or in a form as may be provided by each Customer, and as negotiated by and between the Parties to this Agreement
- “Documentation” means RoboKind’s user manuals, handbooks, and guides relating to the SaaS provided by RoboKind to Customer either electronically or in hard copy form/end user documentation relating to the Services available at https://www.robokind.com/support.
- “End User” means Customer’s students, teachers, administrators, parents, IT staff for each Site or program and other individuals, whether they are part of public or private institutions or other parties, (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this SaaS Agreement and (ii) for whom access to the Services has been purchased hereunder and (iii) who agree to be bound by the terms and conditions of this SaaS Agreement and related agreements or Exhibits. Each End User will have varying rights, permissions and levels of access to the SaaS Services based on their role or position.
- “RoboKind IP” means the SaaS Services, the Documentation, and any and all intellectual property in and to (i) all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, trade secrets, inventions, licenses and other intellectual property rights enforceable in the United States for the RoboKind robots, accessories, and Software, and for (ii) the processes, software, utilities, know how, works of authorships, databases, formulae, algorithms, Internet domain names and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information, systems or procedures, and methods of operation that RoboKind will use to perform RoboKind’s Services and Professional Services, that are provided to Customer or any End User in connection with the foregoing. For the avoidance of doubt, RoboKind IP includes Aggregated Statistics and any information, data, or other content derived from RoboKind’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
- “SaaS Services” means Software offered by RoboKind as a Software-as-a-service subscription which may be used separate and apart, or independent of the RoboKind robots and accessories, whereby Customers and End Users will receive a right to access and use the SaaS Service through a Site based subscription, with either an unlimited or limited number of End Users, the description of the SaaS Service offerings, pricing and terms for such subscription(s) are described in Exhibit A.
- “Site” means each physical school building, real property, or headquarters location for a school or school district; or the location(s) where each afterschool program or summer camp program is held, or an authorized residential location, and where End Users access and use the Products and Services. Any school, school district, related entity, afterschool program or summer camp program held online, each Site shall be based on the underlying building, real property, headquarters or location where classes or activities would normally be held in-person and where End Users would normally access and use the SaaS Services.
- “Software” means all software and curriculum that RoboKind may provide or make available as part of this SaaS Agreement. For purposes of this Agreement, Software shall be limited to the SaaS Services and shall not include Software that is sold by RoboKind in connection to the robots or accessories. Software shall include any updates, revisions and successor versions provided to supplement or replace any Software.
- “Services” means the RoboKind technical support and service level terms and conditions currently offered by RoboKind, or through a Reseller or third-party vendor, and as provided to Customer, in connection with the operability, functionality, and availability of the Software purchased by Customer. Services may also include Professional Services for purposes of this SaaS Agreement.
- ACCESS AND USE.
- Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other/the terms and conditions of this SaaS Agreement, RoboKind hereby grants Customer a limited, revocable, non-exclusive, non-sublicenable, non-transferable (except in compliance with Section 15 (g)) right to access and use the SaaS Services during the Term, solely for use by Customer or End Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal, non-commercial use. RoboKind shall provide to Customer the necessary passwords and network links or connections to allow Customer or End Users to access the SaaS Services. The total number of End Users will not exceed the number set forth in Exhibit A, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
- No Software Delivery Obligation; Acceptance.The Saas Services are cloud-based services and shall be delivered to Customer via Customer’s and End User’s personal electronic devices. Unless specifically set forth in a Purchase Order, RoboKind has no software delivery obligation and will not ship copies of the Software used to provide the SaaS Services to Customer. RoboKind will make the SaaS Service available to Customer as indicated on the Purchase Order. The SaaS Service will be deemed accepted upon the date from which Customer receives access to the applicable SaaS Service (the “SaaS Service Start Date”). Any updates, bug fixes, or upgrades (“Corrections”) to the SaaS Service will be deemed accepted by Customer on the day such Corrections are delivered. Upon the termination or expiration of the Purchase Order, Customer’s right to access or use the SaaS Services will terminate.
- Documentation License. Subject to the terms and conditions contained in this SaaS Agreement, RoboKind hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 15 (g)) license to use the Documentation during the Term solely for Customer’s internal purposes including, internal business or home-based learning programs, in connection with its use of the SaaS Services.
- Use Restrictions. Customer shall not use the SaaS Services for any purposes beyond the scope of the access granted in this SaaS Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any End Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the SaaS Services or Documentation; (v) input, upload, transmit, or otherwise provide to or through the SaaS Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the SaaS Services or RoboKind’s provision of services to any third party, in whole or in part; (vii) access or use the SaaS Services or Documentation for purposes of competitive analysis of the SaaS Services or Documentation, the development, provision, or use of a competing software service or product or any other purpose that is to RoboKind’s detriment or commercial disadvantage; (viii) access or use the SaaS Services or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the SaaS Services could lead to personal injury or severe physical or property damage; (iv) use the SaaS 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 person, or that violates any applicable law; or (x) otherwise access or use the Saas Services or Documentation beyond the scope of the authorization granted under this Section 5(d).
- Reservation of Rights. RoboKind reserves all rights not expressly granted to Customer in this SaaS Agreement. Except for the limited rights and licenses expressly granted under this SaaS Agreement, nothing in this SaaS Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer, End User, or any third party any intellectual property rights or other right, title, or interest in or to the RoboKind IP.
- Suspension. Notwithstanding anything to the contrary in this SaaS Agreement, RoboKind may temporarily suspend Customer’s and any End User’s access to any portion or all of the SaaS Services if: (i) RoboKind reasonably determines that (A) there is a threat or attack on any of the RoboKind IP; (B) Customer’s or any End User’s use of the RoboKind IP disrupts or poses a security risk to the RoboKind IP or to any other customer or vendor of RoboKind; (C) Customer, or any End User, is using the RoboKind IP for fraudulent or illegal activities; (D) Customer fails to cooperate with any investigation of a suspected violation of this SaaS Agreement; (E) RoboKind has not received applicable fees for the SaaS Services five (5) days’ after notice has been provided to Customer in accordance with Section 14; (F) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (G) RoboKind’s provision of the SaaS Services to Customer or any End User is prohibited by applicable law; (ii) any vendor of RoboKind has suspended or terminated RoboKind’s access to or use of any third-party services or products required to enable Customer to access the SaaS Services; or (iii) in accordance with Section 5(d) (any such suspension described in subclause (i), (ii), or (iii), a “Saas Service Suspension”). RoboKind shall use commercially reasonable efforts to provide written notice of any SaaS Service Suspension to Customer and to provide updates regarding resumption of access to the SaaS Services following any SaaS Service Suspension. RoboKind shall use commercially reasonable efforts to resume providing access to the SaaS Services as soon as reasonably possible after the event giving rise to the SaaS Service Suspension is cured. RoboKind will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any End User may incur as a result of a SaaS Service Suspension. If suspension results from Customer’s breach of this SaaS Agreement, fees for the SaaS Services during the suspension will continue to be charged. A reinstatement fee may be charged upon reinstatement of SaaS Services suspended due to a breach of this SaaS Agreement.
- Aggregated Statistics. Notwithstanding anything to the contrary in this SaaS Agreement, RoboKind may monitor Customer’s use of the SaaS Services and collect and compile Aggregated Statistics. As between RoboKind and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by RoboKind. Customer acknowledges that RoboKind may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that RoboKind may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
- Web Portal Access and Management. As part of the SaaS Services purchased by Customer, Customer will be assigned an account and given access to RoboKind’s End User access and management tool (“RoboKind Central”). Customer may use RoboKind Central to manage End User access, rights, and permissions for SaaS Services. Customer shall have access to any Customer Data stored in RoboKind Central for a period of one (1) year after the expiration or Termination of this Agreement.
- Product and Price Book; Modification or Deletion of SaaS Service Offerings. RoboKind maintains a list of all robots, accessories, Software and Services currently being offered to Customers, including product descriptions, SKUs/codes, and pricing (the “Product and Price Book”). RoboKind, in its sole discretion may provide a copy of the Price Book to Customer but is not obligated to do so. RoboKind reserves the right from time to time, in its sole discretion and without liability to the Customer to: (i) change, add to or delete SaaS Services from its Price Book or that RoboKind makes available to Customers; (ii) change or terminate the level or type of service or support that RoboKind makes available to Customers; and (iii) add to or delete any country or market segment in which RoboKind makes the SaaS Services available by providing written notice to Customer at least thirty (30) days prior to the effective date of the change (unless a longer period is required by law).
- Software Renewals and Price Increases. Subject to the terms of this SaaS Agreement, and the applicable Purchase Orders, each monthly or annual Software subscription shall automatically renew for an additional Term, as defined in Section 11(b). Customer shall have a sixty (60) day period of time to provide written notification to RoboKind of Customer’s desire to opt-out of the automatic renewal of their subscription. Any such Renewal Term, as defined in Section (11(b), for a Software subscription shall be managed and negotiated directly with RoboKind, and not through a reseller or third-party. RoboKind reserves the right to increase the prices for any Software Renewal Term upon thirty (30) days written notice to Customer, including an explanation for why such price increase is necessary. If Customer Terminates this SaaS Agreement, a Purchase Order, or a Renewal Term prior to the expiration of any applicable Term, Customer shall not have a right to claim or collect any refund amounts for the Software subscription fees that were paid or pre-paid pursuant to each applicable Purchase Order.
- CUSTOMER RESPONSIBILITIES.
- General. Customer is responsible and liable for all uses of the SaaS Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this SaaS Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of End Users, and any act or omission by an End User that would constitute a breach of this SaaS Agreement if taken by Customer will be deemed a breach of this SaaS Agreement by Customer. Customer shall use reasonable efforts to make all End Users aware of this SaaS Agreement’s provisions as applicable to such End User’s use of the SaaS Services, and shall cause End Users to comply with such provisions.
- TECHNICAL SERVICE AND SUPPORT LEVELS AGREEMENT.
- Service Levels. Subject to the terms and conditions of this SaaS Agreement, RoboKind shall use commercially reasonable efforts to make the SaaS Services available in accordance with the RoboKind Technical Support and Service Level Agreement (“SLA”) attached as Exhibit B.
- Professional Services. During the term of this SaaS Agreement, Customer may request RoboKind to perform professional consulting services. Upon receipt of a request, RoboKind may provide Customer with a written proposal, and when the parties agree to all requirements of the proposed Professional Services, a Statement of Work (“SOW”) for the Professional Services, in the form of Exhibit C, shall be executed by the parties. All SOWs shall be subject to the terms and conditions of this SaaS Agreement and the Customer Agreement, including the Professional Services Addendum set forth therein. SaaS Services performed by RoboKind are not exclusive to Customer, and RoboKind may perform services of any type or nature for any other person or entity at any time.
- FEES AND PAYMENT.
- Fees & Taxes. Customer agrees to pay the fees for SaaS Services as set forth in Exhibit A. RoboKind will invoice Customer for the SaaS Services and Professional Services as set forth in the applicable Purchase Order. All fees due are non-cancelable and the sums paid nonrefundable. Customer is solely responsible for the payment of all sales and use, VAT, duties, tariffs or other similar charges or taxes on the SaaS Services and related Professional Services, other than taxes based upon RoboKind’s income. All fees set forth in an applicable Purchase Order are exclusive of taxes. Applicable taxes payable by Customer will be separately itemized on invoices.
- Due Date. All undisputed fees are due thirty (30) days from the date of receipt of the invoice (“Due Date”). Customer must provide RoboKind written notice of any disputed fees within ten (10) days from the date of receipt of the invoice, where such notice should communicate to RoboKind the reasons for disputing the invoice. All fees that are not disputed by Customer within ten (10) days of receipt of the invoice are conclusively deemed accurate. If Customer desires to dispute an invoice or any portion thereof, Customer will pay the undisputed portion of such invoice by the Due Date, and the parties will work in good faith to resolve any disputed fees; however if the disputed fees remain unresolved, RoboKind may terminate for cause pursuant to Section 11(c) of this SaaS Agreement. Any undisputed fees not paid by the Due Date will accrue interest on the overdue balance from the Due Date at the rate of one and one-half percent (1.5%) per month, or the maximum lawful rate allowable under applicable law, whichever is lower. If RoboKind commences legal proceedings to collect any undisputed fees or payments due to it under this SaaS Agreement, Customer will be responsible for and will pay all reasonable attorneys’ fees, collection fees, court costs and any other reasonable collection-related expenses incurred by RoboKind.
- Responsibility for Payment. Customer will be responsible for all fees and amounts due under the applicable Purchase Order, regardless of whether such Purchase Order is placed by a reseller pursuant to the Customer Agreement or directly by Customer.
- Increases. Notwithstanding any other provision to the contrary, RoboKind may increase the charges applicable to any SaaS Services provided under a Purchase Order (i) for increases in third party charges, or (ii) in its sole discretion, upon thirty (30) days written notice and explanation for such increase to Customer.
- Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of three years after the termination or expiration of this SaaS Agreement with respect to matters necessary for accurately determining amounts due hereunder. RoboKind may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this SaaS Agreement, provided that if such inspection and audit reveals that Customer has underpaid RoboKind with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 7(b), Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this SaaS Agreement and for a period of three years after the termination or expiration of this SaaS Agreement.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this SaaS Agreement, including to make required court filings. On the expiration or termination of the SaaS Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this SaaS Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Each party understands and agrees that the other party may suffer irreparable harm in the event that the receiving party of Confidential Information breaches any of its obligations under this Section 8 and that monetary damages may be inadequate to compensate the non-breaching party for such breach. In the event of a breach or threatened breach of any of the provisions of this Section 8, the non-breaching party, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to seek a temporary restraining order, preliminary injunction and/or permanent injunction in order to prevent or to restrain any such breach by the other party.
- INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.
- RoboKind IP. Customer acknowledges that, as between Customer and RoboKind, RoboKind owns all right, title, and interest, including all intellectual property rights, in and to the RoboKind IP.
- Customer Data. RoboKind acknowledges that, as between RoboKind and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to RoboKind a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for RoboKind to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
- Feedback. If Customer or any of its End Users sends or transmits any communications or materials to RoboKind by mail, email, telephone, or otherwise, suggesting or recommending changes to the RoboKind IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), RoboKind is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to RoboKind on Customer’s behalf, and on behalf of its End Users, all right, title, and interest in, and RoboKind is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although RoboKind is not required to use any Feedback.
- LIMITED WARRANTY AND WARRANTY DISCLAIMER.
- Limited Warranty. RoboKind’s limited warranty for Software and SaaS Services shall be as set forth in RoboKind’s Limited Warranty, attached to the Customer Agreement as Exhibit B and shall constitute Customer’s sole and exclusive remedies for any warranty related claims or Losses.
- Services Warranty. Subject to the limitations described below, RoboKind warrants that the SaaS Services and Deliverables will perform in all material respects in accordance with description of the SaaS Services and Professional Services in the Purchase Order.
- Disclaimer of Warranties. RoboKind does not guarantee that the SaaS Services will be performed error-free or uninterrupted or that RoboKind will correct all errors. Customer acknowledges that RoboKind does not control the transfer of data over communications facilities, including the Internet, and that the SaaS Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. RoboKind is not responsible for any delays, delivery failures or other damage resulting from such problems. Except as specifically provided in this Agreement and to the extent not prohibited by law, RoboKind disclaims any and all warranties, including the warranties of merchantability, fitness for any particular purpose, and non-infringement.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 10 THE ROBOKIND IP IS PROVIDED “AS IS” AND ROBOKIND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ROBOKIND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 10, ROBOKIND MAKES NO WARRANTY OF ANY KIND THAT THE ROBOKIND IP, OR ANY PRODUCTS OR SAAS SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- RoboKind Indemnification.
- Subject to the limits of liability contained in this SaaS Agreement, RoboKind shall indemnify, defend, and hold harmless and its officers, directors, agents, and employees from and against any losses, claims, penalties, fines, awards, costs, judgments, damages, liabilities or expenses, including reasonable attorneys’ fees, or the like (“Losses”) incurred by Customer and arising out of or relating to or based upon any Infringement Claim by a third-party related to the SaaS Services. “Infringement Claim” is defined as a claim or action alleging infringement of (i) any U.S. patent issued as of the Effective Date of this Agreement, or (ii) any trademark, copyright, or trade secret, enforceable in the U.S. RoboKind will have no indemnity obligation to Customer if an Indemnification Claim results from (A) a correction, alteration, or modification of the SaaS Services not provided, or approved in writing, by RoboKind; (B) use of the SaaS Services in combination with data, software, hardware, equipment, or technology not provided by RoboKind or authorized by RoboKind in writing; or (C) Customer Data, provided that Customer promptly notifies RoboKind in writing of the claim, cooperates with RoboKind, and allows RoboKind sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit RoboKind, at RoboKind’s sole discretion, to (A) modify or replace the SaaS Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If RoboKind determines that neither alternative is reasonably available, RoboKind may terminate this SaaS Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
- Customer Indemnification. Subject to the limits of liability contained in this SaaS Agreement, RoboKind shall indemnify, defend, and hold harmless and its officers, directors, agents, and employees from and against any losses, claims, penalties, fines, awards, costs, judgments, damages, liabilities or expenses, including reasonable attorneys’ fees, or the like (“Losses”) incurred by Customer and arising out of or relating to or based upon resulting from any Infringement Claim that the Customer Data, or any use of the Customer Data in accordance with this SaaS Agreement, infringes or misappropriates such third party’s intellectual property rights and any Infringement Claims based on Customer’s or any End User’s (i) negligence or willful misconduct; (ii) use of the SaaS Services in a manner not authorized by this SaaS Agreement; (iii) a correction, alteration, or modification of the SaaS Services not provided, or approved in writing, by RoboKind; or (iv) use of the Services in combination with data, software, hardware, equipment or technology not provided by RoboKind or authorized by RoboKind in writing, provided that Customer may not settle any Infringement Claim against RoboKind unless RoboKind consents to such settlement, and further provided that RoboKind will have the right, at its option, to defend itself against any such Infringement Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ROBOKIND’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SAAS SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL ROBOKIND’S LIABILITY UNDER THIS SECTION 11 EXCEED ONE HUNDRED THOUSSAND. DOLLARS ($100,000.00 USD).
- LIMITATIONS OF LIABILITY. IN NO EVENT WILL ROBOKIND BE LIABLE UNDER OR IN CONNECTION WITH THIS SAAS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ROBOKIND WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ROBOKIND’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS SAAS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO ROBOKIND UNDER THIS SAAS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100,000 WHICHEVER IS LESS.
Each party acknowledges and agrees that the cap on damages and the limitations of liability and damages contained in this Section 12 are fundamental elements of this SaaS Agreement and that SaaS Services would not be provided without such cap and limitations. Without limiting the foregoing, in the event any remedy under this SaaS Agreement is determined to have failed of its essential purpose, the parties intend that all limitations of liability and remedies and all exclusions of, and caps on, damages provided for in this Agreement will remain in full force and effect. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in those jurisdictions, the parties agree that the liability of each party will be limited to the fullest extent permitted by such jurisdiction.
- TERM AND TERMINATION.
- Term. The term of this SaaS Agreement will begin on the Effective Date or the date on the first Purchase Order, whichever is earliest, and the Agreement will remain in full force and effect for the period specified in each Purchase Order and for so long as there is an outstanding Purchase Order (the “Term”). This Agreement may be terminated by the parties by mutual written agreement or by a party for cause, as described in Section 13.3, in which case all Purchase Orders will also be terminated.
- Term of Purchase Orders. Each Purchase Order will specify an initial defined term (the “Purchase Order Initial Term”), commencing on the “Billing Commencement Date.” The Billing Commencement Date for the purchase of SaaS Services is the date rom which a Subscriber receives the applicable Software, provided RoboKind has accepted the Purchase Order in writing. The Billing Commencement Date for Services or Professional Services shall be, as applicable, the date specified in the Purchase Order or SOW.
Upon expiration of the Purchase Order Initial Term, each Purchase Order will automatically renew for one additional twelve (12) month period for 1 year Purchase Order Initial Terms and twelve additional one (1) month periods for 1 month Purchase Order Initial Terms (each a “Renewal Term”). Customer may opt-out of such automatic renewals by providing RoboKind with written notice of non-renewal no later than sixty (60) days’ for 1 year Terms and fifteen (15) days’ for 1 month Terms, prior to expiration of the then current Purchase Order Initial Term or Renewal Term.
The Purchase Order Initial Term or Renewal Term will remain in effect until the earlier to occur of:
- termination of such Purchase Order by either party for cause as described in Section 11(c) below;
- termination of such Purchase Order upon mutual written consent of the parties; or
- expiration of the Purchase Order Initial Term with no renewal, as described in this Section 11(b).
- Termination for Cause. A party may terminate a Purchase Order and/or this SaaS Agreement:
- upon receipt of written notice (specifying the default or breach) from the non-defaulting party, if the other party is in default or breach of a material obligation in a Service Order or this Agreement. If such default or breach can be and is cured within thirty (30) days after receipt of written notice, then the Purchase Order and Agreement will remain in effect;
- as set forth in Section 15(l); or
- if the non-terminating party enters into liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or part of its assets or enters into an arrangement with its creditors or takes or suffers any similar action.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this SaaS Agreement, Customer shall immediately discontinue use of the RoboKind IP and, without limiting Customer’s obligations under Section 8, Customer shall delete, destroy, or return all copies of the RoboKind IP and certify in writing to the RoboKind that the RoboKind IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees under all outstanding Purchase Orders and/or that may have become due before such expiration or termination, plus related taxes and expenses, and any past due payments, within thirty (30) days of such expiration or termination, or entitle Customer to any refund.
- NOTICES. Any and all notices or other communications or deliveries required between the parties will be in writing and in the English language and will be deemed effective as follows: (i) if delivered in person, on the date it is delivered; (ii) if sent by certified or registered mail, postage prepaid, return receipt requested, five (5) business days from the date such notice was posted through the U.S. Postal Service (or other applicable postal delivery service), (iii) if sent by nationally recognized overnight courier, one (1) business day after the sender provides it to the courier for dispatch; (iv) if by e-mail properly addressed to the receiving party at the address provided by the receiving party and sent via the Internet as may be evidenced by computer records or any archival copy kept in the ordinary course of business by the sender, provided the sender sends it before 6:00 p.m. Central Standard Time on a business day in the U.S., the Notice will be deemed effective on the date it was sent; otherwise it will be deemed effective on the next U.S. business day. Any notices or other communications or deliveries required will be sent to each party at the address set forth at the beginning of this Agreement, or to such other address provided in writing to the other party in accordance with this Agreement, or in the case of Support Services, notice information may be changed in accordance with the SLA.
- Assignment. A party may not assign this SaaS Agreement, or any of its rights, obligations or privileges under this SaaS Agreement, by operation of law or otherwise, without the prior written consent of the other party. A party may, however, without having to obtain the other party’s prior written consent, assign this SaaS Agreement, and its rights, obligations and privileges under this SaaS Agreement, to any successor by merger, or any purchaser of all or substantially all of the assets or a majority of the stock of such party, provided such successor is not a competitor of the other party. Any attempted assignment, delegation or assumption of this SaaS Agreement not in accordance with this Section will be null and void and of no force or effect. The terms and conditions of this SaaS Agreement will inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
- Equitable Relief. Each party is entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek equitable relief in a court of competent jurisdiction.
- Arbitration. Any dispute, claim, or controversy (“Disputes”) arising out of or related to this SaaS Agreement shall be settled by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. The arbitration shall take place in Dallas, Texas, USA. Reseller acknowledges and agrees that the terms of this Section 14.3 do not apply to any breach or alleged breach of confidentiality or proprietary rights provisions and that, in the event of any such breach of alleged breach, RoboKind will be entitled to equitable and injunctive relief in addition to all other remedies provided by this SaaS Agreement or available at law.
- Modifications, Amendments, or Waivers. No modification or amendments to this SaaS Agreement or any Purchase Order will be valid unless made in writing and signed by the duly authorized representatives of both parties. No waiver of any provision of this SaaS Agreement will be valid unless made in a writing signed by a duly authorized representative of the party waiving such provision.
- Severability. If any provision of this SaaS Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this SaaS Agreement and such other provisions will remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves, to the greatest extent possible, the same effect as would have been achieved by the invalid or unenforceable provision.
- Survival. The terms, conditions or warranties contained in this SaaS Agreement that by their sense and context are intended to survive the performance thereof by either party will so survive the completion of the performance or termination of this SaaS Agreement, including without limitation, Section 10 (Disclaimer of Warranties), Section 8 (Confidentiality), Section 11 (Indemnification), Section 12 (Limitation of Liability), and the relevant sections of this Section 15 (Miscellaneous).
- Compliance with Laws; Export. Each party will comply with all applicable laws, regulations, and codes (including procurement of permits and licenses, when needed) of their respective states, territories, and/or countries in the performance of this SaaS Agreement, provided such compliance is not in violation of the U.S. Government’s Export and Anti-boycott Rules and Regulations. The Services and related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable laws. Customer represents and warrants that it will (a) comply strictly with all legal requirements established under these controls; (b) cooperate fully with RoboKind in any audit or inspection that relates to these controls; and (c) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or person who or which is embargoed by Executive Order or any applicable law, including any rules, regulations or policies promulgated thereunder, unless Customer has obtained the prior written authorization of RoboKind and the appropriate governmental authority. Customer will indemnify, defend and hold RoboKind harmless from all claims, damages and related expenses (including reasonable attorneys’ fees) incurred by RoboKind that result from Customer’s breach of this provision.
- US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, 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 users and their contractors.
- Limitations on Actions. Each party agrees that no claim (other than Infringement Claims) related to or arising under this SaaS Agreement will be brought more than two years after the time that the claim accrued.
- Waiver. Any failure or delay by either party to exercise or partially exercise any right, power or privilege will not be deemed a waiver of any of the rights, power or privileges under this SaaS Agreement. A waiver by either party of a breach of any term, condition, or provision of this SaaS Agreement will not operate as, or be construed as, a waiver of any subsequent breach.
- Governing Law; Jurisdiction & Venue. Any and all claims arising under or related to this SaaS Agreement will be governed by the laws of the State of Texas, USA. This SaaS Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising under or related to this SaaS Agreement will be in a state or federal court with competent jurisdiction located in the City and County of Dallas, Texas, and each party agrees not to bring an action in any other venue. Each party agrees to waive all objections to this venue and agrees not to dispute the personal jurisdiction or venue of these courts.
- Force Majeure. Except for payments amounts owed under this SaaS Agreement, a party will not be liable for damages resulting from delay or default (provided that party is without fault in causing such delay or default), if such delay or default is caused by conditions beyond its reasonable control, including without limitation, acts of God; natural disasters; war or other hostilities; labor disputes; civil disturbances; pandemics, disease, or epidemics; governmental acts, orders or regulations; or failures or fluctuations in electrical power, heat, lights, air conditioning or telecommunications equipment (each a “Force Majeure Event”). The party affected by the Force Majeure Event must immediately provide notice to the other party in writing of the reason for the delay or default and the likely duration of the delay or default. Except for payments owed under this SaaS Agreement, the performance of the party (or parties) affected by the Force Majeure Event, will be suspended during the Force Majeure Event. If, however, performance is not resumed within sixty (60) days after receiving notice of the Force Majeure Event, the other party may, by notice in writing, immediately terminate this SaaS Agreement.
- Media Releases. Each party will treat this SaaS Agreement and its terms as confidential and will make no press release or disclosure, whether written, oral or otherwise, regarding the existence of this SaaS Agreement or transactions contemplated by this SaaS Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Notwithstanding any language to the contrary in this SaaS Agreement, a party may make any disclosure to the extent required by applicable laws, including securities laws or the rules of any stock exchange where a party’s securities are traded. Additionally, RoboKind may list Customer as a customer on RoboKind’s website and on publicly available customer lists without obtaining Customer’s prior written consent, provided that RoboKind does not imply an endorsement of RoboKind’s products or services by Customer.
- Non-Solicitation of Employees. During the term of this SaaS Agreement and for a period of one (1) year after termination or expiration of this SaaS Agreement, each party agrees that it will not, directly or indirectly, for itself or on behalf of any person or entity, solicit any employees of the other party who had significant involvement with delivery of Services or Professional Services under this SaaS Agreement for the purpose of inducing such employees to terminate their employment to become employees or independent contractors. The foregoing will not apply to nonspecific general solicitations (e.g., Internet or newspaper).
- Execution and Counterparts. RoboKind and Customer each represents and warrants that the individuals signing below are duly authorized to execute this SaaS Agreement on behalf of the party for which they are signing. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format) and electronic signatures will be accepted as original signatures. This SaaS Agreement may be executed in multiple counterparts, which, when assembled, will constitute the entire SaaS Agreement.
Effective the date of the last signature below (“Effective Date”).
RoboKind, LLC, a Texas limited liability company.
Customer Organization: __________________
Name: Richard Margolin
1601 Bryan Street, Suite 4220
Dallas, Texas 75201
SAAS SERVICES SUBSCRIPTION TERMS
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the SaaS Agreement.
Contact RoboKind for Current Pricing
- DESCRIPTION OF SAAS SERVICES:
- DESCRIPTION AND ADDRESS OF SITE LOCATION:
- TERM/SUBSCRIPTION PERIOD: The term or subscription period of this Exhibit will commence as of the Billing Start Date and will continue for one (1) [year/month] (“Initial Term”). After the Initial Term, the Agreement shall automatically renew.
- MAXIMUM NUMBER OF END USERS:
- ACCESS: Access is limited to authorized End Users.
- SERVICES FEES FOR ADDITIONAL USERS TO BE CO-TERMINOUS WITH THE TERM/ SUBSCRIPTION PERIOD OF THE PURCHASE ORDER OR SAAS AGREEMENT:
First 100 users
$____ per user
Next 150 users (250 cumulative)
$____per incremental user
Next 250 users (500 cumulative)
$____ per incremental user
Next 250 users (750 cumulative)
$____ per incremental user
Next 250 users (1000 cumulative)
$____ per incremental user
H. ANY CUSTOMER SPECIFIC PAYMENT REQUIREMENTS NOT INCLUDED IN THE SAAS AGREEMENT, INCLUDING INVOICING AND ANY RENEWAL FEE NOTIFICATION PROCESS OR RENEWAL FEE INCREASE LIMITATIONS.