Last Updated: November 9, 2021
PLEASE READ BEFORE USING THE ROOTSAUTOMATION, INC. (THE “COMPANY”) SERVICES YOU HAVE LICENSED. BY USING THESERVICES, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT (TOGETHER,"CUSTOMER") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ISBECOMING A PARTY TO THESE TERMS OF SERVICE (THE “TERMS”). IF YOU DO NOTUNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS, USE OFTHE SERVICES IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER,ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS.
Subject to all terms and conditions of these Terms and Customer’s compliance therewith, Company hereby grants Customer a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to access and use the Company’s Software-as-a-Service platform (the “Services”) at https://iris.rootsautomation.com/ , which may include the Company’s website(s) and platform together with all related information, tools, data, APIs, content and documentation solely for (i) Customer’s internal business purposes and (ii) other purposes separately authorized by Company in writing. The Services are subject to usage limitations set forth on the pricing page (the “Pricing Page”) and are subject to modification from time to time at Company’s sole discretion for any purpose deemed appropriate by Company. Company will use reasonable efforts to give Customer prior notice of any modification that will materially diminish features or functionalities of the Services.
Subject to all terms and conditions of these Terms and Customer’s compliance therewith, Company make the Services available to Customer in accordance with the support and availability guarantees set forth on the Pricing Page (if any). Notwithstanding the foregoing, Company may suspend Customer’s access to the Services (i) for scheduled or emergency maintenance or (ii) in the event Customer is in material breach of these Terms, including failure to pay any amounts due to Company. Company will use commercially reasonable efforts to provide notice to Customer prior to any scheduled maintenance.
2. CUSTOMER DATA.
The parties acknowledge that certain information is to be provided by Customer (“Customer Data”). Company will not be liable for any failure to perform Services that is caused by Customer’s delay in or failure to provide Customer Data. Customer grants Company a world-wide, non-exclusive, royalty-free license during the Service Term to use and distribute Customer Data for the purpose of fulfilling Company’s obligations hereunder these Terms. Customer warrants that it owns the Customer Data and/or is otherwise entitled to grant the foregoing license. If these Terms are terminated, the foregoing license will automatically terminate in respect of any future Customer Data, but not in respect of any Customer Data already provided.
Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data, including provision of necessary information about the processing of Customer Data under these Terms to data subjects if necessary. Customer shall indemnify Company for any claim that the Customer Data (i) infringes or violates the intellectual property or other rights of a third party or (ii) violates applicable law. Additionally, Company may use aggregated and de-identified Customer Data solely for the internal purpose of improving the Services. Customer represents and warrants that it owns all right, title and interest in and to the Customer Data.
Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of its end users and customers; or use the Services other than in accordance with these Terms and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity, or defamation). Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance, and local telephone service (collectively, “Equipment”).
4. CUSTOMER RESPONSIBILITIES
Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Company’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Additionally, Customer agrees to be bound by any end-user software agreements that govern the installation and use of such Equipment. Customer will cooperate with Company in connection with the performance of these Terms by making available such personnel and information as may be reasonably required and taking such other actions as Company may reasonably request. Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will be responsible for maintaining the security of Customer’s account passwords (including but not limited to administrative and user passwords), and for all uses of Customer’s account with or without Customer’s knowledge or consent.
Each party (the “Receiving Party”)understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or(e) is required by law. In any event, Company may use for development, diagnostic and corrective purposes any data and information it collects relating to the Services.
Both Parties will have the right to disclose the existence but not the terms and conditions of these Terms, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers. Customer acknowledges that Company does not wish to receive any Proprietary Information from Customer that is not necessary for Company to perform its obligations under these Terms, and, unless the parties specifically agree otherwise, Company may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
7. DATA PROCESSING
(a) For the purposes of section and Data Processing Schedule, "controller", "processor", "personal data", "process/processing", "sub-processor" "technical and organizational measures" and "supervisory authority/authority" shall have the meaning as set out in the applicable Data Protection Laws or (where specifically defined therein);
(b) Each party shall comply with its obligations under applicable Data Protection Laws and, to the extent applicable under the Data Protection Laws, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under these Terms.
(c) Where the Company is deemed to be acting as a processor for the Customer with respect to Personal Data shared in relation to these Terms under applicable Data Protection Laws, the Data Processing Schedule shall apply to such processing.
(d) Where a party is deemed to be acting as a controller with respect to personal data processed under or in relation to these Terms, under applicable Data Protection Laws, this section shall apply, and each party shall, in its capacity as a controller:
i. provide assistance to allow the other party to comply with any data subject requests (whether in relation to access to Customer personal data, rectification, restrictions on processing, erasure or portability) insofar as possible;
ii. provide assistance to allow the other party to comply with any other queries or complaints from a supervisory authority (as defined in Data Protection Laws) insofar as possible; promptly notify the other party of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed pursuant to these Terms ("Security Incident"); and
iii. provide reasonably necessary assistance to enable the other party to notify insofar as possible: (i) the relevant supervisory authority, promptly and in any event no later than 72 hours after relevant data controller becomes aware of a Security Incident; and (ii) the relevant data subjects without undue delay (where required) of a Security Incident.
(e) If in the Company's reasonable opinion, the relevant data protection provisions of these Terms need to be amended in order to comply with the Company's obligations; or pursuant to any supervisory authority opinion or guidance, the Company shall be entitled to unilaterally amend this section and the Data Processing Schedule upon giving 30 days' notice to the Customer.
(f) As used herein, "Data Protection Laws" means all privacy laws applicable to any personal data processed under or in connection with these Terms, including, without limitation, the General Data Protection Regulation 2016/679(the "GDPR")), the Privacy and Electronic Communications Directive 2002/58/EC (as the same may be superseded by the Regulation on Privacy and Electronic Communications ("ePrivacy Regulation"))and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time.
Except as expressly set forth herein, Company alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any third party relating to the Services, which are hereby assigned to Company. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under these Terms. These Terms is not a sale and does not convey to Customer any rights of ownership in or related to the Services, or any intellectual property rights. Company shall hold Customer and its respective officers, directors, employees, agents harmless from liability to unaffiliated third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Company including Customer Data, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are materially modified after delivery by Company, (iv) combined with other commercially unforeseen products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with these Terms. Company’s indemnification obligations under this Section are contingent on Customer providing Company: (i) prompt written notice of the claim; (ii) the unconditioned right to control the defense and settlement of such claim; and (iii) reasonable cooperation in the defense of such claim, at Company’s expense.
Customer may submit questions, comments, suggestions, ideas, original or creative materials or other information about the Company or the Services (collectively, “Feedback”).Feedback is non-confidential and shall become the sole property of the Company. Company shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer.
9. PAYMENTOF FEES.
(a) Payment Terms. Customer will pay Company the then applicable fees for the Services within the Service Capacity (the “Fees”)in accordance with the payment method set forth on the Pricing Page. Currently applicable Fees and Payment Schedules are set forth on the Pricing Page. The billing period is from the first day to the last day of each calendar month, on a per form basis as set forth in our Pricing Page. Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Customer Support at email@example.com.
(b) Payment Processor. Customer hereby authorizes our third-party payment processor, Stripe, Inc. (“Payment Processor”) to charge and process the fees and charges assessed in connection with the Services. Company may ask Customer to supply information relevant to processing the payments for the Services including credit card number, the expiration date of credit card, and email and mailing addresses for billing and notification (such information, “Payment Information”). While Company take reasonable efforts to ensure secure transmission of Customer information to third parties who assess and process payments, Company is not responsible for any fees or charges assessed by third parties or any errors in the processing of payments by third parties, including any errors that result from third-party negligence, improper transmission of payment information, Customer’s mistaken submission of payment information, or Customer’s submission of erroneous payment information. Customer agrees to be bound by Payment Processor’s terms of service at https://stripe.com/ssa. The Payment Processor is responsible for transacting such payments through its platform, and Customer agrees to release and hold Company harmless from any errors, negligence, or misconduct by the Payment Processor. Customer authorizes Payment Processor to directly remit to Company any applicable fees owed due pursuant to these Terms.
10. FREE TRIALS.
Customer may request a free trial to evaluate the Services, which shall be governed by these Terms ("Free Trial"). During the Free Trial, the Customer may make such use of the Services as designated by Company in order to evaluate it for future use in its business, but not for any other purpose (including for business and/or commercial use). Company reserves the right to suspend, limit or extend a Free Trial at any time in its sole discretion. On expiry of the Free Trial, access to the Services will be subject to the payment terms set forth in the Pricing Page. Only one Free Trial per Customer is allowed and subsequent Free Trial requests may be rejected by the Company.
11. TERM; TERMINATION.
The Services are provided on a per-project basis. Either party may also terminate these Terms upon written notice to the other party. Upon termination of these Terms for any reason: (a) all licenses granted under these Terms shall immediately terminate; (b) Customer shall return and make no further use of, or access, the Services, documentation and other items (and all copies of them) belonging to the Company (if any); (c)all amounts payable to Company by Customer shall become immediately due and owing; and (d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability shall not be affected or prejudiced.
12. WARRANTY DISCLAIMER.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY ASTO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Customer hereby indemnifies Company from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Company as a result of, or in connection with, any Customer Data or the Company's receipt, possession and/or use, in accordance with these Terms, of any Customer Data.
Company will indemnify Customer from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Customer as a result of any claim against the Customer by a third party that Customer’s use of the Services infringes the intellectual property rights of any person (save to the extent caused by the Customer Data).
14. LIMITATION OF LIABILITY.
IN NO EVENT WILL COMPANY BE LIABLE FORANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS OR OTHERWISE ARISING FROM THESE TERMS, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT,TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE FEES PAID TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15. CLASS ACTION WAIVER
Any arbitration or action under these Terms will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF APRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, the arbitrator or judge may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
16. ENTIRE AGREEMENT
Unless otherwise specified herein, these Terms constitute the entire agreement between Company and Customer with respect to the Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Company and Customer.
17. CHANGES TO TERMS
Company reserves the right, in its sole discretion, to change the Terms under which the Services are offered. The most current version of the Terms will supersede all previous versions. Company may modify or amend these Terms by giving Customer reasonable notice. By continuing to use the Services after expiry of the notice period or accepting the amended Terms(as Company may decide in its sole discretion), Customer will be deemed to have accepted any amendment to these Terms.
18. RELATIONSHIP BETWEEN THE PARTIES
The parties are independent contractors and nothing in these Terms shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor, or employee of the other. Each Party has sole responsibility for its activities and its personnel and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other party in any manner.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
20. FORCE MAJEURE
Neither party shall have any liability or be deemed to be in breach of these Terms for any delays or failures in performance of these Terms which result from circumstances beyond the reasonable control of that party including, without limitation, any of the following: power failure, act of God, governmental act, war, fire, flood, explosion, or civil commotion. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If an event of force majeure occurs and lasts for more than 90 days either party may give written notice to the other to terminate these Terms and neither party will have any liability to the other except that Customer will remain liable for any unpaid Fees for services already rendered.
21. EXPORT CONTROLS
The Services originate in the United States and are subject to United States export laws and regulations. The Services may not be exported or re-exported by Customer to certain countries, or those persons or entities prohibited from receiving exports from the United States. In addition, the Services may be subject to the import and export laws of other countries. Customer agrees to comply with all United States and foreign laws related to use of the Services.
22. U.S. GOVERNMENT MATTERS.
The Services are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC,31 CFR Part 500). Customer will not import, export, re-export, transfer or otherwise use the Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country, (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage inactivity that would cause Company to be violation of these laws and regulations, and will indemnify Company for any fines, penalties or other liabilities incurred by Company for Customer’s failure to comply with this provision.
Customer hereby consents to receive electronic communications from Company and Customer agrees that all agreements, notices, disclosures, and other communications that Company provides to Customer electronically, via email and on the Services, satisfy any legal requirement that such communications be in writing.
24. GOVERNING LAW.
These Terms are governed by the laws of the state of New York, without regard to its conflict of laws principles. Both parties submit to the exclusive jurisdiction of the courts located in New York County, New York in relation to any dispute arising out of or in connection with these Terms or its subject matter, but the Company is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.
Customer shall not, without the prior written consent of Company, assign any of its rights or obligations under these Terms. These Terms may not be modified except in writing signed by the authorized representatives of all the parties to these Terms. Neither party shall make or issue any announcement or public circular relating to the subject matter of these Terms without the prior written approval of the other. Neither party shall, at any time during the Term and thereafter, make any public statements or representations, which may disparage the other party or otherwise adversely affect the other party’s reputation. Company may use the name of Customer and its logo as a factual reference to the fact that Customer is or was a customer, on its website and in pitch materials, without the prior written consent of Customer. Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
Roots Automation, Inc.
175 Greenwich St, 38th Floor
New York, NY10007