Robot Ninja Solution

1. Limited License

   1. We grant you and your Authorised Users a personal, non-exclusive, non-transferable, non-assignable, non-sublicensable license to access and use the Robot Ninja Solution during the Term in accordance with your then current Subscription Package and otherwise as set forth in this Agreement.
   2. We may choose to make the Robot Ninja Solution available in different Subscription Packages. You acknowledge that your use of the Robot Ninja Solution, and access to particular functionality or support services (if applicable), may be limited to your then current Subscription Package.

2. New Versions and Features

   You acknowledge that we are constantly improving and updating the Robot Ninja Solution, and that these terms and conditions apply to only the current version of the Robot Ninja Solution. We will provide you with access to all new features of the Robot Ninja Solution that it makes generally available to its other customers during the Term. However, if we charge our other customers a fee for such additional features of the Robot Ninja Solution, you shall only be entitled to such additional features upon payment of an agreed additional fee to us. You understand that we do not have an obligation to improve, update or otherwise develop the Robot Ninja Solution for you or any other customers generally.

3. Account Registration and Authorised Users

   1. You may need to register and create an account in order to access or use all or part of the Robot Ninja Solution. You represent and warrant that all information submitted to us in connection with such registration is complete, truthful and accurate. It is your responsibility to inform us of any changes to that information. We may reject, or require that you change, for any reason, any user name, password or other information that you provide to us in registering.

   2. Your user name and password are for your personal, non-commercial use only, and should be kept confidential. We do not permit:

      1. anyone other than you to use the sections requiring registration by using your name or password; or
      2. access through a single name or user account being made available to multiple users on a network or otherwise.
   3. You are solely responsible for any use or misuse of your user name or password (including the payment of all fees authorised in connection with your account), and you must promptly notify us if you believe there has been any confidentiality breach or unauthorised use of your user name or password, or your user account.
   4. We are not liable for any loss or damage arising out of, or in connection with, your failure to comply with any of the foregoing obligations.

4. Availability

   You acknowledge and agree that there will be circumstances where the Robot Ninja Solution may be unavailable, or its availability may be limited. This may be due to factors including (without limitation) (i) routine or emergency maintenance; (ii) updates, upgrades or other development activity; or (iii) technical malfunctions of the underlying software, equipment, services or infrastructure (e.g. telecommunications connectivity, network congestion or delays) of Prospress or third party provider. In addition, we may temporarily limit or suspend the availability of the Robot Ninja Solution to you if in our reasonable opinion (i) you breach these terms and conditions; or (ii) limitation or suspension is necessary for reasons of public safety, security or maintenance of the Robot Ninja Solution, interoperability, data protection or to perform work that is necessary for operational or technical reasons.

5. Modification

   1. We reserve the right to change or modify the Robot Ninja Solution at any time. Subject to clause 1.5 (b), we will post notice of the change on our Website and your continued use of the Robot Ninja Solution after such notification will constitute your acceptance of the change.
   2. If a change materially adversely changes the functionality of the Robot Ninja Solution, we will give you not less than thirty (30) days’ written notice of the change. If you do not wish to continue using the Robot Ninja Solution as a result of any such material adverse change, you may terminate these terms and conditions by notice in writing to us within thirty (30) days after receiving such notification.

6. Third Parties

   We use third party software, hardware or services (including cloud hosting services) in providing the Robot Ninja Solution and may change our providers from time to time. We will use reasonable efforts to ensure use of such third party software, hardware or services does not result in diminution of the quality of the Robot Ninja Solution, but will not have any responsibility for any such diminution arising from a defect or failure of such third party software, hardware or services.

Data and Content

1. Aggregated Data

   We shall have the right to use for marketing, research and other lawful purposes anonymized, aggregated usage data derived from the Robot Ninja Solution. We shall comply with all applicable laws and regulations regarding the collection, storage and disclosure of any personally identifiable information.

2. Responsibility for Data

   We shall not, in any circumstance, be responsible or liable for any loss of data, or any consequential loss or other damage suffered by you in respect of any data or content which is lost, damaged or corrupted by the Robot Ninja Solution.

Restrictions on Use

You acknowledge and agree, as follows:

1. You may only use the Robot Ninja Solution as permitted under your then current Subscription Package and only for your own internal business purposes.
2. The Robot Ninja Solution is provided only for your benefit, and not for use by your affiliates, partners, customers or any other person or entity.

3. You shall not:

   1. sublicense, transfer, sell, rent or otherwise provide access to the Robot Ninja Solution to any third party;
   2. interfere in any manner with the Robot Ninja Solution, or any services associated therewith, including by uploading any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;
   3. reproduce, disclose, decompile, disassemble, reverse engineer or modify the Robot Ninja Solution, or any aspect of any of the foregoing, or be involved in development or commercialization of any product or service which competes with the Robot Ninja Solution (or any aspect thereof);
   4. infringe any third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights; or
   5. permit, encourage or take any action to facilitate any person to do any of the foregoing.

Fees and Payment

1. Subscription Fee

   During the Term, you will pay to us the Subscription Fee.

2. Invoicing and Payment

   1. We shall invoice you by email for the Subscription Fee.
   2. You agree to pay all invoices within 21 days from the date of invoice.
   3. If you do not pay an amount as set forth in clause 4.2, we reserve the right to suspend the provision of the Robot Ninja Solution or reduce it in a proportion or manner determined by us in our absolute discretion, until all overdue amounts under this clause are fully paid.

3. Changes to Subscription Fee

   We may increase the Subscription Fee for any Subscription Package at any time upon not less than ninety (90) days’ notice in writing to you. You will be deemed to have accepted such increase for the remainder of the Term unless you give us written notice of non-acceptance within thirty (30) days of receiving notice from us, in which case these terms and conditions shall automatically terminate. Notwithstanding the foregoing, from time to time we may also periodically charge you an additional amount in excess of the Subscription Fee by notice in writing to you to the extent the cost of providing the Robot Ninja Solution is affected by an increase in costs charged by third parties for services utilized by us in providing the Robot Ninja Solution (such as web hosting or data services).

4. Taxes

   1. Unless otherwise indicated, the Subscription Fee payable to us excludes all applicable Taxes, and you will be responsible for payment of all such Taxes arising from the payment of such fees or the delivery or use of the Robot Ninja Solution.
   2. In this clause 4.4, “Tax” includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan, or withholding, however it is described, whether direct or indirect, by whatever method collected or recovered, that is levied or imposed by any government, and any related interest, penalty, charge, fee or other amount, but excludes taxes based on Prospress’ net income.

Intellectual Property

1. As between you and us, you agree that all right, title and interest in and to all Intellectual Property Rights in the Robot Ninja Solution are owned or licensed exclusively by us. All rights not expressly granted to you in these terms and conditions are reserved by us. You must not in any way challenge or impair our ownership to such Intellectual Property Rights.
2. We shall have and you hereby grant and agree to grant a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use, share, commercialize, exploit and incorporate into the Robot Ninja Solution any suggestions, enhancement requests, recommendations or other feedback provided by you or any of your Authorised Users or other personnel, relating to the Robot Ninja Solution.
3. Any copyright in any software or code developed by us to generate customized versions of the Robot Ninja Solution shall be owned by us upon creation. To the extent such copyright is not automatically owned by us, you hereby assign all right, title and interest in such copyright to us and shall upon request do all things necessary to give effect to such assignment (including execution of appropriate documentation at our cost).
4. We will not have any rights in any trademarks or service marks used by you in connection with your business.

Security

We do not guarantee or warrant that the Website or Services will be free of infection or viruses, worms, trojan horses or other harmful components. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Website and Services for the reconstruction of any lost data.

Indemnification

1. Indemnification

   You shall defend, indemnify and hold harmless Prospress, its directors, officers, employees and agents, from and against any and all loss, damages, and liability (including attorney’s fees) of any kind arising from your breach of these terms and conditions or the use or misuse of any username or password, or any claim that the data collected by the Robot Ninja Solution (or any use thereof) infringes the Intellectual Property Rights or other rights of a third party or has caused harm to a third party.

2. Indemnification

   1. TERMS, CONDITIONS, WARRANTIES AND GUARANTEES IMPLIED BY LAW MAY APPLY TO THIS AGREEMENT TO THE EXTENT REQUIRED BY THOSE LAWS (NON-EXCLUDABLE GUARANTEES). NOTHING IN THESE TERMS AND CONDITIONS RESTRICTS, EXCLUDES OR MODIFIES, OR PURPORTS TO RESTRICT, EXCLUDE OR MODIFY, ANY NON-EXCLUDABLE GUARANTEE.
   2. WE DO NOT REPRESENT THAT YOUR USE OF THE ROBOT NINJA SOLUTION WILL BE SECURE, TIMELY, AVAILABLE, UNINTERRUPTED, BUG-FREE OR ERROR-FREE OR THAT THE ROBOT NINJA SOLUTION WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE ROBOT NINJA SOLUTION OR RELATED DOCUMENTATION PROVIDED (IF ANY) WILL BE CORRECTED OR THAT THE ROBOT NINJA SOLUTION WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE ROBOT NINJA SOLUTION IS PROVIDED AS IS AND PROSPRESS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER ROBOT NINJA SOLUTION OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
   3. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR YOUR USE OF THE ROBOT NINJA SOLUTION, HOWEVER CAUSED, WHETHER FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   4. OUR MAXIMUM AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN THE CONNECTION WITH THESE TERMS AND CONDITIONS, WHETHER SUCH LIABILITY ARISES FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION SHALL IN NO CASE EXCEED THE AMOUNT OF FEES PAID UNDER THESE TERMS AND CONDITIONS DURING THE PERIOD OF TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

Confidentiality

You agree to maintain in confidence our Confidential Information and not to use or disclose our Confidential Information without our express written consent. You will protect our Confidential Information with the same standard of care that you use to protect your own confidential information, but in no event less than a reasonable degree of care. As used herein, “Confidential Information” means all information of a confidential nature in any form or medium that is not publicly available, and you acknowledge and agree that this includes business and technical information incorporated into the Website or Services or any software or other technology contained therein.

Term, Termination and Effects

1. Term

   This Agreement shall commence on the date you are issued with account login details (Commencement Date) and continue for an initial term ending on the expiry of your selected billing period (Initial Term). This Agreement shall automatically renew for additional periods equal to your selected billing period (each a Renewal Term) unless terminated by either party prior to the end of the Initial Term or Renewal Term (as applicable). Collectively, the Initial Term and any Renewal Term are referred to herein as the Term.

2. Termination

   1. You may terminate this Agreement at any time during the Term:

      1. for convenience upon not less than ninety (90) days written notice to us;
      2. if we materially breach this Agreement and do not cure the breach within thirty (30) days after receiving written notice of the breach from you; or
      3. in accordance with the circumstances set forth in clause 1.5(b).

   2. We may terminate this Agreement at any time during the Term:

      1. for convenience upon not less than ninety (90) days written notice to you;
      2. if you breach this Agreement and do not cure the breach within fourteen (14) days after receiving written notice of the breach from us; and
      3. immediately by notice in writing to you if you breach clause 1.1 (License), 3 (Restriction on Use), 5 (Intellectual Property), 8 (Confidentiality).

3. Effects of Termination

   1. Upon termination or expiration of this Agreement for any reason:

      1. any amounts owed to us under this Agreement before such termination or expiration will be immediately due and payable, including payment of the Subscription Fee on a pro-rata basis;
      2. all rights granted in this Agreement will immediately cease, and we will cease making the Robot Ninja Solution available to you; and
      3. we reserve the right, in its sole discretion, to delete your data within thirty (30) days after the Agreement is terminated. It is your sole responsibility to retain records of information used in conjunction with the Robot Ninja Solution.
   2. Sections 3 (Restriction on Use), 7.2 (Limitation of Liability), 9.3 (Effects of Termination), 5 (Intellectual Property Rights), 7.1 (Indemnification), 8 (Confidentiality) and 11 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.

Publicity and Branding

You hereby consent to us promoting our relationship with you in our marketing and promotional activities, unless we are expressly advised by you to the contrary.

Miscellaneous

In the event of a dispute between you and us in connection with your use of the Website or the Services (Dispute) you agree that the Dispute will be subject to the Agreement in effect at the time the Dispute arose.

1. Independent contractors

   The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.

2. Assignment

   You may not assign this Agreement (by operation of law or otherwise) without our prior written consent (which we may grant or withhold in our sole discretion), provided however that you may assign this Agreement to an entity which you control, which controls you or which is under common control with you, with our prior written consent (not to be unreasonably withheld).

3. Exclusivity

   The rights granted to you under this Agreement are personal and non-exclusive, and nothing shall prevent us from providing the Robot Ninja solution or any other product, software, goods or services to any third party.

4. Privacy Policy

   To the extent that we collect, store, use and disclose any of your personal information, we will do so in accordance with our privacy policy available at https://robotninja.com/privacy-policy/ as updated from time to time (Privacy Policy). By entering into this Agreement you also consent to the collection, storage, use and disclosure of such information in accordance with our Privacy Policy.

5. Modifications

   Except as otherwise set forth in this Agreement, we may change or modify the terms of this Agreement (including by adding additional terms) by notice in writing to you, and shall simultaneously post the modified terms on the Robot Ninja website located at https://robotninja.com/terms/. You agree to check the Robot Ninja website regularly in order to stay informed of any such changes. You will be deemed to have accepted the modified terms of this Agreement unless you give us written notice of non-acceptance within thirty (30) days of such notice.

6. Governing Law

   This Agreement, and any disputes arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of California, United States, excluding its rules governing conflicts of laws and the U.N. Convention on the International Sale of Goods. Each party unconditionally submits to the non-exclusive jurisdiction of the state and federal courts located in California, United States to adjudicate any disputes arising out of or in connection with this Agreement.

7. Severability

   In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction,

   1. such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and
   2. the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.

8. No waiver

   No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

9. Entire Agreement

   The foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including any quotations or proposals submitted by the parties.

10. Notices

    A notice, demand, consent, approval or communication under this Agreement (Notice) must be (i) in writing in English and duly authorised by the sender; and (ii) sent by email to:

    1. if addressed to Robot Ninja: legal@robotninja.com and
    2. if addressed to you: at the email address provided to us on signup your account,

    or as varied by any Notice given by the recipient to the sender prior to sending.

11. Interpretation

    In this Agreement, except where the context otherwise requires: headings are inserted for convenience only and do not affect the interpretation or construction of this Agreement; the singular includes the plural and vice versa; a reference to a clause or schedule is to a clause of, or schedule to, this Agreement, and a reference to this Agreement includes any schedule; another grammatical form of a defined word or expression has a corresponding meaning; a reference to a party is to a party to this Agreement; a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.

12. Definitions

    In this Agreement:

    1. Prospress, us, we, or our means Prospress Inc. of 156 2nd Street San Francisco, CA, 94105 subsidiaries, affiliates, officers and employees.
    2. Robot Ninja means the current, hosted version of the Robot Ninja solution (as updated from time to time) and all proprietary APIs, software, innovations, methodologies and technology which is embodied in, or used by Prospress to make Robot Ninja available to you.
    3. Intellectual Property Rights means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights of similar nature or having similar effect to any of these rights as now exist or may hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of Australia or any other state, country or jurisdiction throughout the world, as well as applications, and rights to apply, for any of the forgoing.
    4. Subscription Fee means the fee payable by you which corresponds with your then current Subscription Package.
    5. You means the person named as the account owner.