Robust Intelligence Terms and Conditions

Last updated: July 21, 2023

1. Limited License.

(a) Robust Intelligence. Conditioned upon Client’s compliance with the terms and conditions of this Agreement, Robust Intelligence (”RI”) grants Client a limited, non-exclusive, non-transferable, non-sublicensable, worldwide right and license during the Term to install a single copy of Robust Intelligence software (and any Updates thereto) in Client’s cloud environment, for Client’s internal business use purposes. For avoidance of doubt, Client may only have one active Robust Intelligence environment per license purchased. Client may maintain one active replicated copy and one non-active copy of Robust Intelligence for archival and contingency purposes only. Any copies that Client makes are exclusively owned by RI.

(b) No Dissemination. Except as expressly provided, the distribution, disclosure, display, sale, conveyance, use or exploitation of Robust Intelligence or any portion thereof, regardless of the method of dissemination, whether now existing or hereafter devised is strictly prohibited, including the use of Robust Intelligence as a service bureau (e.g. by which a third party can access Robust Intelligence, or by which information produced by Robust Intelligence is sold or provided to a third party through use of any technology, now known or hereafter devised).

2. Support, Updates, Client Requirements.

(a) Support. RI will provide remote support via email or telephone for reproducible incidents reported by designated Client representatives, during RI’s regular business hours and will use commercially reasonable efforts to resolve incidents. RI’s ability to provide support depends upon Client’s compliance with RI’s instructions including installing all Updates made available to Client and the procurement, installation, and maintenance of equipment, software, networks and other requirements identified by RI as necessary to operate Robust Intelligence. RI might not, despite its commercially reasonable efforts, be able to resolve incidents when: (i) Robust Intelligence has been changed or modified (without RI’s written consent); (ii) an incident is caused by Client’s negligence, Client or third party’s hardware, software, network or other causes not attributable to RI or beyond its reasonable control; (iii) Client fails to comply with its obligations hereunder which would have prevented or corrected the incident; and (iv) Robust Intelligence has been used for a purpose other than that for which it is designed or licensed hereunder.

(b) Updates. RI will provide, at no additional charge, standard or hot fixes, patch releases, bug fixes, changes or additions to Robust Intelligence or the combination or aggregation of any of the foregoing that RI, in its discretion, designates as an “update” and generally provides to its clients without additional charge (“Update”). RI will provide all information needed for Client to install Updates when RI makes them available for general release. Client’s use of Updates is subject to this Agreement.

(c) Enhancements. RI will make Enhancements available to Client upon their general release or earlier at RI’s discretion for an additional charge. “Enhancement” means an enhancement or an addition to Robust Intelligence, other than an Update, that: (i) provides significantly new functionality not included in Robust Intelligence as of the date of the Agreement; (ii) is not made available to all RI’s commercial Clients as part of the standard license; and (iii) is only made available subject to a payment of a separate charge. Enhancements will be set forth in an Order Form and shall be subject to the terms and conditions of this Agreement. Client is not obligated to accept or implement any Enhancement from RI.

(d) Client Requirements. Client shall comply with the minimum hardware, software and network configurations and obtain licenses from applicable third-party providers of any of the foregoing as necessary for its own use, and if applicable, for any use or interface thereof with or by Robust Intelligence. Client shall run regular backups of Robust Intelligence and any data used in connection therewith and be solely responsible for any data recovery. To ensure successful software deployment, Client shall grant RI write permissions to specified blob storage bucket(s). Client shall share relevant helm charts required for software deployment with RI (sensitive information such as IAM roles and S3 bucket paths may be masked) and permit RI to log and view events in the deployed software for software health monitoring purposes. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Client data used in conjunction with Robust Intelligence. Client will be responsible for all costs in connection with the foregoing.

(e) Out of Scope. This Agreement does not cover products or services not expressly set forth hereunder, including customizations or professional services. All such additional services must be purchased by Client from RI under separate written agreements.

3. Payments and Audits.

(a) Payments. The license fees (“Fees”) will be invoiced and paid in accordance with the payment schedules and methods set forth in the Order Form. At the commencement of each renewal of the Agreement, the Fees may increase to RI’s then prevailing rates. Fees are due within thirty- (30) days from the date of receipt of invoice unless otherwise indicated in the Order Form. Client will be charged a service fee of 1-1/2% per month on all undisputed balances outstanding more than thirty- (30) days and processing fee of 2.75% for any credit card payment amounts.

(b) Audit. During the Term and for twelve (12) months thereafter, upon request and reasonable notice, but in no event later than fifteen (15) days, RI or its representatives shall have the right to audit Client’s use of Robust Intelligence either electronically or otherwise to verify compliance with the terms of this Agreement. Such audit may include inspection of Client’s records, systems and facilities (including cloud). Such audit shall take place not more than once every twelve (12)-month period unless a prior audit reveals a violation of this Agreement or if RI otherwise has reason to suspect any violation of this Agreement. If a violation is found, Client shall promptly bring its use into compliance with this Agreement, bear the cost of the audit and promptly repay Company all underpaid Fees (if any) subject to late fees. RI reserves the right to any other remedies whether under this Agreement or at law or in equity.

4. Proprietary Rights and Licenses.

(a) RI’s Proprietary Rights. Robust Intelligence and any components thereof consist of original works of authorship originally created and developed as trade secrets at RI’s expense. As between the parties, RI owns and retains all right, title and interest in Robust Intelligence and all IPR therein and thereto. “IPR” means intellectual property rights in and to patents, trademarks, service marks, trade and service names, copyrights, database rights and design rights (regardless of registration, and including applications for registration), know-how, moral rights, trade secrets, confidential and proprietary information, all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world now existing or hereafter arising.

(b) Feedback. RI welcomes ideas, suggestions and feedback related to RI products and services and any other aspects of RI’s business (“Feedback”). Provision of Feedback is entirely voluntary. If Client elects to provide such Feedback, it shall and does hereby assign to RI all title and interest, including IPR in such Feedback and RI may use it for its business purposes in its discretion and its own risk without any payment or accounting to Client, but without any responsibility or liability by Client, provided that Client shall not knowingly provide to RI Feedback that is (i) in breach of Client’s confidentiality obligations to third parties, or (ii) infringing third party IPR. Such Feedback is deemed part of RI’s Confidential Information and IPR. For the avoidance of doubt, nothing in this Section ‎‎4(b)‎ grants any ownership rights to RI in any of Client’s products, services or business.

(c) Use Restrictions. Client shall not: (i) create derivative works from or improvement to Robust Intelligence or any components thereof; (ii) reverse engineer, disassemble, decompile, decipher, reconfigure, un-obfuscate, reformat, alter or reproduce, subject to experimentation or otherwise seek to duplicate the performance characteristics of Robust Intelligence or any component thereof or attempt to derive the source code contained therein, (iii) remove or alter any proprietary notices, legends, symbols or labels included in Robust Intelligence, whether in machine language or human readable form.

(d) Reservation of Rights. All rights not granted hereunder by one Party to the other are expressly reserved by such party. There are no implied licenses to any products, services or IPR of a party hereunder.

5. Confidentiality.

(a) Confidential Information. “Confidential Information” means any non-public, proprietary information obtained by a party (“Receiving Party”) whether in oral, written, demonstrative, graphic, electronic, machine readable, or in other tangible or intangible form, that relates to past, present or future products, services, marketing, research, development or business activities of the disclosing party (“Disclosing Party”) or its affiliates or their respective employees, customers or suppliers, including, without limitation, software (including in the case of RI, Robust Intelligence and any Updates and Enhancements thereto), APIs, SDKs, databases, data models, AI models, processes, techniques, methods, methodologies, present and future inventions, discoveries, developments, trade secrets, formulas, ideas, concepts, know-how, designs, and information technology, and any analyses, compilations, studies or other documents prepared by the Disclosing Party that contain or otherwise reflect such information.

(b) Standard of Care. The Receiving Party shall preserve the Confidential Information of the Disclosing Party in confidence and shall maintain, at a minimum, the same precautions and standard of care that a reasonable person in such business would use to safeguard Confidential Information of its own and its clients or suppliers. Except as permitted hereunder, the Receiving Party shall not, without first obtaining the other Party’s written consent, disclose to any person, or use for its own benefit, Confidential Information, during the Term of this Agreement and thereafter.

(c) Limited Disclosure. The Receiving Party may disclose Confidential Information on a need-to-know basis to its authorized employees, contractors, agents, auditors, counsel and other representatives performing services for its benefit, solely as required for it to enjoy the benefits conferred by this Agreement and for the Parties to perform their respective obligations. All such Receiving Party’s representatives receiving or having access to Confidential Information shall be bound by non-disclosure obligations consistent with this Agreement and the Receiving Party shall be responsible for any violation by such representatives.

(d) Security Measures. Each Party shall maintain commercially reasonable technical and organizational measures and information security safeguards to protect Confidential Information from unauthorized or accidental access, loss, alteration, disclosure, destruction or use. Upon the Disclosing party’s reasonable request, the Receiving Party shall provide information regarding the measures and safeguards it undertakes to maintain Confidential Information in confidence and any failure thereof or security breach or infringement related thereto.

(e) Legal Requirement. If Confidential Information is required to be disclosed by law, regulation or court order by either Party, such disclosure shall be permitted to the extent legally required, provided that to the extent legally permissible, the Disclosing Party is given reasonable prior notice by the Receiving Party to enable it to seek a protective order or confidential treatment prior to such disclosure by the Receiving Party.

(f) Scope Limitation. Confidential Information, does not include information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, (ii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who is not bound by a confidentiality agreement with the Disclosing Party, (iii) was known to the Receiving Party or in its possession prior to the date of disclosure by the Disclosing Party, (iv) is furnished by the Disclosing Party to the Receiving Party with written permission to disclose, or (v) is independently developed by the Receiving Party without reference to or use of Confidential Information. In addition, RI may disclose that it is licensing software to Client.

6. Representations and Warranties.

(a) Mutual. Each Party represents and warrants as to itself that: (i) it has the authority and all necessary rights, licenses and approvals to enter into, to grant the rights hereunder and perform the duties and obligations described herein and the person signing this Agreement on behalf of each Party has been properly authorized and empowered to enter into this Agreement, (ii) the performance of its obligations hereunder does not conflict with any other agreement either signed or contemplated, and (iii) the performance of its obligations hereunder shall be in compliance with all applicable laws, including all applicable US and foreign export laws, rules and regulations.

(b) By RI. RI represents and warrants that (i) to the best of its knowledge, it has all necessary rights to provide Robust Intelligence to Client in the format and manner and for the use set forth hereunder; (ii) it will test with a current version of an appropriate anti-virus and anti-spyware application any electronic files to be delivered to Client in an attempt to discover and eliminate any virus or malware.

7. Disclaimers.

Except as expressly provided herein and to the fullest extent permitted under applicable law: (i) RI disclaims any and all warranties and representations, express or implied, including the implied warranties of merchantability and fitness for a particular purpose or use (whether or not the purpose or use has been disclosed), warranties of title and non-infringement, any implied indemnification obligations, or other warranties that arise from trade usage or custom, with respect to any aspects of Robust Intelligence or any components thereof or its use in conjunction with Client data or the output or results obtained from such use, any decisions made or actions taken in reliance thereupon or as to the performance thereof (whether performed in whole, part or not at all); (ii) RI does not guarantee the adequacy, accuracy, timeliness or completeness of Robust Intelligence or any components or output thereof or that they will be error free or free from computer viruses or other infirmity or corruption, (iii) Robust Intelligence and all components thereof are provided on an “as is” basis and Client’s use thereof is at Client’s own risk.

8. Indemnification.

(a) By Client. Client shall, at its sole cost and expense, defend, hold harmless and indemnify RI and its respective officers, directors, employees, consultants, and agents (“Indemnitees”) from and against all losses, liabilities, costs, damages and expenses, including but not limited to reasonable legal fees and expenses (collectively “Losses”), incurred or suffered by any of the foregoing RI Indemnitees as a result of any third party claims, actions or demands: (i) of infringement or violation of IPR arising out of or in connection with the unauthorized use of Robust Intelligence, including unauthorized modifications, or (ii) arising out of or in connection with Client’s business that are not attributable to Robust Intelligence.

(b) By RI. RI shall, at its sole cost and expense, indemnify, defend and hold harmless Client Indemnitees against all Losses incurred or suffered by any of them as a result of any third party claims, actions or demands of infringement or violation of IPR arising out of or in connection with the authorized use of the Robust Intelligence in the format and manner delivered. Notwithstanding the foregoing, RI shall have no liability to Client if the infringement results from: (i) use of Robust Intelligence in combination with software or hardware or network not provided by RI, provided that such infringement would not have occurred but for the use Robust Intelligence in accordance with the terms of this Agreement; (ii) Client’s unauthorized modifications of Robust Intelligence; (iii) use of other than the latest version of Robust Intelligence as updated, upgraded, enhanced or fixed through the date thereof, if such infringement would have been avoided by use of the most current version of such Update. The foregoing states the entire liability of RI with respect to infringement of IPR by Robust Intelligence.

(c) Process. The indemnified Party shall provide the indemnifying Party with prompt written notice and copies of relevant documentation regarding any claim or action for which indemnification may be sought. Failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligation except to the extent that such failure materially disadvantages the indemnifying Party. If the indemnifying Party fails to appoint an attorney within ten-(10) business days after it has been notified in writing of any such claim or action, the indemnified Party will have the right to select and appoint an attorney and the reasonable cost and expense thereof will be paid by the indemnifying Party. The indemnifying Party shall control the defense of any such claim, provided however that it shall not settle, compromise or consent to the entry of any judgment, unless such settlement, compromise or consent includes an unconditional release of the relevant indemnitees from all liability arising out of such claim or action, and is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, the relevant indemnitees or otherwise adversely affect any of them. The indemnified Party shall reasonably cooperate with the indemnifying Party in the defense thereof at the indemnifying Party’s expense.

(d) Additional Actions. Without limiting RI’s indemnification obligations hereunder, if Robust Intelligence is enjoined or if RI believes it may be enjoined RI may elect, at its expense, either (i) to procure for Client the right to continue to use it as permitted hereunder, (ii) to modify it to make it non-infringing, or (iii) to the extent applicable, replace it or its components with non-infringing functionally equivalent materials, or if none of the foregoing is commercially reasonable, terminate the Agreement and refund on a pro-rata basis of the Fees paid by Client for the period that Robust Intelligence was not available or usable.

9. Limits of Liability.

In no event, shall RI be liable hereunder for any indirect, special, incidental, exemplary, punitive or consequential damages, including loss of profits, lost time or good will, even if it has been advised of the possibility of such damages, whether in contract, tort, strict liability or otherwise. Except for claims arising under or related to intellectual property indemnification obligations, gross negligence, willful misconduct, or death or bodily injury, in no event shall the maximum cumulative liability of RI for any and all claims arising under or related to this agreement, regardless of the form of action, exceed, in the aggregate, the fees paid or payable by client to RI under the Order Form for the twevle (12)-months preceding the claim.

10. Term and Termination.

(a) Term. This Agreement shall commence and continue in effect for the period stated in the Order Form (“Initial Term”). Unless otherwise indicated in the Order Form, the Agreement shall auto-renew for additional one (1) year period (each “Renewal Term” and together with the Initial Term, “Term”) unless Client provides a ninety (90) days prior written notice that it does not wish the Agreement to renew.

(b) Termination for Material Breach. In the case of a material breach of any of the terms of this Agreement by a Party, the non-defaulting Party may terminate this Agreement with thirty (30)-days prior written notice and option to cure to the defaulting Party.

(c) Immediate Termination. Either Party may terminate this Agreement immediately upon notice for (i) violation of confidentiality obligations or infringement of IPR, or (ii) if the other Party ceases to conduct its business in the ordinary course, becomes legally insolvent, makes a general assignment of its assets for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or avails itself of or becomes subject to any proceeding under the bankruptcy laws of any applicable jurisdiction

(d) Effect of Termination. Upon termination of this Agreement, each Party shall, unless otherwise instructed by the other Party or under this Agreement: (i) promptly cease all use of the Confidential Information of the other Party, (ii) not later than thirty (30) days following termination return (in a format requested by the Disclosing Party by a secure file transfer) or destroy and remove from its storage platform any and all systems, all versions and copies of the materials and Confidential Information of the other Party and other materials incorporating the Confidential Information, whether in tangible or electronic form, including Robust Intelligence, except to the extent a Party is required to retain such information to comply with regulatory record keeping requirements which shall be subject to ongoing confidentiality obligations and use restrictions. Upon request, the Receiving Party shall certify to the Disclosing Party, in writing, its compliance with this Section ‎10‎(d). The termination or expiration of the Agreement shall not relieve Client from any payment obligations with respect to Fees accrued during Term, whether or not Client was billed for such Fees during such Term or thereafter.

11. Force Majeure.

Any delays in or failure of performance by RI shall not be considered a breach of this Agreement if such delay or failure is caused by acts of God, unforeseeable circumstances, acts (including a delay or failure to act) of any governmental authority (de jure or de facto), embargoes, strikes, labor disputes, riots, fire, floods, earthquakes, wars (declared or undeclared) or other military action, terrorism, sabotage, epidemics, pandemics, state of emergency, lockdowns, travel bans, or other causes beyond RI’s reasonable control.

12. Miscellaneous.

(a) Assignment. Client may not assign, novate or otherwise transfer this Agreement or any of its rights or obligations hereunder whether voluntarily or by operation of law, without RI’s prior written consent which shall not be unreasonably withheld or delayed; any purported attempt to do so shall be null and void, except that Client may assign this Agreement or any rights hereunder, in whole or in part, either to its affiliates or in connection with a reorganization, the sale of all or substantially all of its assets, or to a successor entity as a result of a merger, acquisition or change of control that is similar in nature, without RI’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

(b) Independent Contractor. RI and Client are independent contractors with respect to each other and nothing herein shall create an association, a joint venture, partnership or other agency relationship between them.

(c) Non-Solicitation. During the Term and twenty-four (24) months thereafter, Client shall not, directly or indirectly, alone or in association with others, whether as owner, shareholder, partner, investor, proprietor, manager, member, advisor, or agent or otherwise: (i) contact or attempt to contact for the purposes, in whole or in part, of offering employment or an engagement, any person who is or was engaged by RI in the performance of it obligations hereunder (“Solicited Recruit”), or (ii) hire or engage a Solicited Recruit as the result of solicitation as described in (i) above. Failure to honor this provision by Client could result in RI’s suffering irreparable harm. Subsection (i) above does not include, and shall not preclude, instances of Client communicating open positions to a general job-seeking audience, such as descriptions of open requisitions on a job board or Client’s website, or the hiring of an employee of RI who responds to such general solicitation.

(d) Equitable Relief. In the event of a breach or threatened breach by the provisions of this Agreement pertaining proprietary rights and confidentiality obligations, the injured Party may have no adequate remedy in money or damages and, accordingly, may seek an injunction or other equitable remedy against such breach. Nothing herein shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach of a provision of this Agreement.

(e) Construction and Interpretation. The word ‘including’ shall be deemed to mean ‘including but not limited to’ unless expressly set forth to the contrary. The words “herein”, “hereof” and “hereunder” and other words of similar import refer to the Agreement as a whole and not to any subdivision contained in the Agreement unless expressly stated to the contrary. Neutral pronouns and any variations thereof shall be deemed to include the feminine and masculine and all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require. Terms denoting persons shall include legal entities and vice versa. Terms having well-known technical or trade meaning (e.g. “terms of art”) shall be used in accordance with such recognized meanings. When used in the context of a series of items the word “or” will be construed such that the series may include any of the items, all of the items, or any combination of the items. Where any provision in this Agreement refers to an action to be taken by a Party, or which such Party is prohibited from taking, such provision shall be applicable whether the action in question is taken directly or indirectly by a Party.

(f) Entire Agreement; Amendment. This Agreement constitutes the entire agreement and understanding between the Parties regarding the subject matter hereof, and supersedes all prior discussions, proposals and agreements between them relating thereto. This Agreement be amended only in a writing, which makes express reference to this Agreement and is signed by a duly authorized representative of each Party. No other act, communication, representation, document, usage custom or practice shall be deemed to modify or amend this Agreement.

(g) No Waiver. No failure or delay on the part of neither Party in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.

(h) Severability. In the event that any court having competent jurisdiction over the interpretation of this Agreement shall finally determine that a provision in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and, as so limited or restricted, shall remain in full force and effect. In the event that any such provision or provisions shall be deemed wholly unenforceable, such provision shall be deemed deleted from this Agreement, and the remaining provisions shall remain in full force and effect.

(i) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction, as to all matters, including matters of validity, construction, effect, performance and remedies. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. The Parties further agree that UCITA, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified shall not apply to this Agreement and is hereby disclaimed. In connection with any dispute between the Parties arising out of or relating to this Agreement, each Party consents to the exclusive jurisdiction and venue in the California state courts located in the County of San Francisco and in the federal courts located in San Francisco.

(j) Notices. Notices shall be considered given on the date of receipt, if delivered by hand, overnight courier or, if sent by electronic means, upon receipt of confirmation or a reply which includes the original message, and six (6) days after the date of mailing, if mailed postage paid. Notices shall be given to each Party at its address and marked to the attention of the person set forth in the Order Form. A Party may change any such address by delivery of written notice to the other Party.

(k) Survival. The provisions of the Agreement that by their nature extend beyond the termination of the Agreement, will survive the termination of the Agreement, including but not limited to the following Sections: Section 3(b) (Audit), Section 4 (Proprietary Rights), Section 5 (Confidentiality), Section 7 (Disclaimer), Section 8 (Indemnification), Section 9 (Limits on Liability), Section 10 (Effect of Termination), and this Section 12 (Miscellaneous).

(l) No Presumptions. In construing the terms of this Agreement, no presumption shall operate in either Party’s favor as a result of its counsel’s role in drafting the terms or provisions hereof.

(m) Headings. Section headings in this Agreement are for convenience only and shall not affect the interpretation of any provision of this Agreement.

(n) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.