Last Revised: April 11, 2019
Important: This Software as a Service (SaaS) subscription agreement (the “Agreement”) is a legal agreement between you (“Customer”) and Automation Anywhere, Inc. (“Company”). Please read this Agreement carefully before checking the “I agree” box. By checking the “I agree” box, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree, do not check the “I agree” box.
By agreeing to this Agreement, Customer represents that Customer has full power, capacity and authority to accept the terms of this Agreement. If Customer is accepting the terms of this Agreement on behalf of an employer or another entity, Customer represents that Customer has full legal authority to bind such employer or such other entity to this Agreement.
- Use Rights and Obligations. Company grants to Customer a non-exclusive, non-transferable, revocable, restricted right during the Term (as defined in Section 2 (Term and Termination)) to access and use the on-line software and materials described in Section 1.1 (Service Description) (the “Service”) solely for Customer’s internal use in connection with Customer’s ordinary business operations. Customer agrees to operate the Service in compliance with the terms of this Agreement and any applicable laws, including but not limited to the Privacy Laws (as defined in Section 9 (Data Privacy)).
1.1. Service Description. Automation Anywhere’s Enterprise A2019 is Company’s robotic process automation (RPA) software designed to automate any process end-to-end with cognitive software robots. IQ Bot automates business processes that rely on semi-structured or unstructured data hidden in electronic documents, images, emails, and more. IQ Bot leverages multiple AI techniques to intelligently digitize and extract data to make RPA and/or OCR technology even more effective. A Customer can access Enterprise A2019 by following the applicable instructions provided by Company.
1.2. Use Restrictions. Except as otherwise provided in this Agreement, Customer shall not permit any employees, agents, or representatives to: (a) disclose, use, sell, assign, lease, commercially exploit or market any part of the Service or Company Confidential Information in any way or manner; (b) modify, enhance, translate, supplement, create derivative works from, or remove any proprietary notices or labels from any part of the Service or Company Confidential Information; and (c) disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any Company Confidential Information.
- Term and Termination. The term of this Agreement will begin when Customer clicks “I agree” and will end twelve (12) months after the Effective Date, unless extended by Company, in its sole and absolute discretion. In addition, Company may, in its sole and absolute discretion, terminate this Agreement immediately upon written or electronic notice to Customer. Upon termination of this Agreement, Customer will cease all use of the Service provided hereunder and return, or destroy upon Company’s request, all copies of any part of the Service then in Customer’s possession or under Customer’s control. The terms in Sections 1 and 3 through 9 will survive any termination of this Agreement.
- Confidentiality. As used herein, “Confidential Information” shall mean any non-public, confidential or proprietary information disclosed by a party hereto to the other party hereto, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” or “proprietary” including, without limitation: financial information and records; data and data files and formats; business strategies and plans; information regarding relationships with customers, suppliers, employees, independent contractors, and other third parties; notes, drafts, assessments, analyses, evaluations and reports; business methods, protocols, processes, inventions, ideas, know-how, trade secrets, and underlying logic and concepts; proprietary software information, hardware and other information technology; system designs, architecture and operations; requests for proposals and proposals; and business requirements, specifications and pricing. Confidential Information of a party shall include Confidential Information of third parties to which the disclosing party owes an obligation of confidentiality. As used herein, “Company Confidential Information” shall mean any Confidential Information that Company furnishes to Customer and “Customer Confidential Information” shall mean any Confidential Information that Customer furnishes to Company.
3.1. Exclusions. “Confidential Information” shall not include information that: (a) is or becomes known or available to the public, other than through a breach of an obligation hereunder by the receiving party; (b) is lawfully acquired by the receiving party from a third party without breach of a confidentiality restriction; (c) the receiving party can demonstrate by written proof was (i) already in its possession at the time it was disclosed hereunder by the disclosing party or (ii) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) has been approved for disclosure by the disclosing party.
3.2. Confidentiality Obligations. The receiving party will hold and maintain the disclosing party’s Confidential Information in confidence, exercising at least the same degree of care as the receiving party customarily exercises to protect its own proprietary information, but in no event with less than reasonable care. The receiving party will not, without the disclosing’s party prior written consent: (a) disclose any portion of the Confidential Information to any person or entity other than its and its affiliates’ directors, officers, employees, agents or consultants who reasonably need access to the Confidential Information to fulfill the permitted uses described herein and who are bound to protect the Confidential Information on terms substantially similar to those in this Agreement; or (b) use Confidential Information except as permitted in this Agreement. Notwithstanding the foregoing, disclosure of Confidential Information by a receiving party shall not be precluded if such disclosure is required by a valid law, regulation, subpoena, demand, or order or other process of a court or government entity; provided, however that, if legally permissible, the receiving party must provide prompt written notice of disclosure to the disclosing party sufficiently in advance to permit the disclosing party to contest the disclosure or seek an appropriate protective order. If disclosure is required despite the opposition of the disclosing party, the receiving party shall make reasonable efforts to disclose only the Confidential Information that is legally required to be disclosed and will cooperate with the disclosing party in seeking assurances from the applicable entity that the Confidential Information will be afforded confidential treatment with further dissemination thereof restricted.
- Fees and Payment. The Service is provided free of charge. Company may change the fees at any time; however, any such change shall not affect any then-current Term.
- Ownership; Intellectual Property Protection. Except as otherwise expressly stated herein, nothing in this Agreement creates any right of ownership or license (by implication, estoppel, or otherwise) in and to the other party’s intellectual property, and each party will continue to independently own its intellectual property and proprietary information. Company will own all intellectual property rights, title, and interest in and to the Service and to any and all feedback, ideas, reports, recommendations, analyses, data, evaluation materials, records, designs, inventions, specifications, and other materials created under this Agreement, whether created or gathered by Customer or Company during the course of, or as a result of, this Agreement and whether or not such materials incorporate Customer Confidential Information. Customer agrees to assign to Company all rights it may otherwise have to these tangible and intangible items. Any rights not expressly granted to Customer herein are reserved by Company. The placement of a copyright notice on any part of the Service or Company Confidential Information will not constitute publication or otherwise impair the confidential or trade secret nature of the Service or Company Confidential Information. Customer agrees not to copy, modify, translate, disassemble, decompile, reverse engineer, create derivative works of, or make any other attempt by any means to discover or obtain proprietary information included in the Service. Any such copies, modifications, compilations, or derivative works that may be prepared will be owned by, and be the sole property of, Company.
- Indemnification. Customer will indemnify, defend, and hold Company harmless from and against any loss, cost (including all legal fees), claim, injury, or other liability asserted by any person not a party to this Agreement, which relates to, or arises out of, directly or indirectly: (i) any breach by Customer of the Privacy Laws relating to Customer’s provision of Customer Confidential Information; (ii) any breach by Customer of the warranties contained in Section 1 (Use Rights and Obligations) or Section 9 (Data Privacy) of this Agreement; or (iii) Customer’s use of Company Confidential Information in violation of this Agreement.
- LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR: (A) ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES AND LOSS OF USE, DATA, BUSINESS, OR PROFITS), REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) AGGREGATE DAMAGES IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
7.1. Limitation of Liability Exclusions. The limitations of liability set forth in Section 7 (Limitation of Liability) above do not apply to, and each party accepts liability to the other for: (a) damages related to claims that are the subject of indemnification under this Agreement, (b) claims based on either party’s intentional breach of its obligations set forth in Section 3 (Confidentiality), and (c) either party’s unauthorized use, distribution, or disclosure of the other party’s intellectual property.
7.2. No Limitation of Liability by Law. Because some jurisdictions do not allow liability or damages to be limited to the extent set forth above, some of the above limitations may not apply to Customer.
- DISCLAIMER. THE PARTIES ACKNOWLEDGE THAT THE SERVICE PROVIDED TO CUSTOMER PURSUANT TO AND FOR THE PURPOSES OF THIS AGREEMENT ARE PROVIDED "AS IS," “AS AVAILABLE,” AND WITHOUT ANY WARRANTY WHATSOEVER. COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. NO COMPANY AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. TO THE EXTENT THE LAWS OF CUSTOMER’S JURISDICTION DO NOT PERMIT SUCH DISCLAIMER WITH RESPECT TO THE SERVICE AS PURCHASED HEREUNDER, COMPANY PROVIDES ONLY THE MINIMUM LAWFUL WARRANTY BEYOND THAT WARRANTY EXPRESSLY MADE ABOVE AND DISCLAIMS ALL WARRANTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMERS IN THIS SECTION 8 (DISCLAIMER) ARE A MATERIAL PART OF THIS AGREEMENT, AND COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH DISCLAIMERS.
- Data Privacy.
9.1. Privacy Laws. For the purposes of this Agreement, “Privacy Laws” means all state, federal, and international laws and regulations, including (without limitation): the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations and the Health Information Technology for Economic and Clinical Health Act (HITECH) and its implementing regulations (collectively, the HIPAA Rules); and laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom, related to data privacy, including (without limitation) the EU General Data Protection Regulation (2016/679) (“GDPR”) and any applicable national implementing laws. The terms “Personal Data,” “Special Categories of Personal Data,” “Data Subject(s),” and “Controller” as used in this Agreement shall have the meanings given to them in the GDPR. The term “Protected Health Information” as used in this Agreement shall have the meaning given to it in the HIPAA Rules.
9.2. Roles of the Parties. The parties acknowledge and agree that each party shall be a separate Controller in respect of any Personal Data contained in the Customer Confidential Information and each party shall be responsible for its compliance with the applicable Privacy Laws with respect to the Customer Confidential Information.
9.3. Customer Obligations. With respect to any Personal Data contained in the Customer Confidential Information, Customer represents and warrants that: (i) the Personal Data has been collected in strict compliance with the applicable Privacy Laws; (ii) it has properly notified Data Subjects concerned that their Personal Data will be transferred to third parties including Company; and (iii) Customer has all necessary rights to transfer any Personal Data contained in the Customer Confidential Information to Company for the purposes set out in this Agreement and such transfer of the Personal Data and processing by Company is and shall be in compliance with the Privacy Laws.
9.4. Data Subject Rights. Company shall inform Customer about any request by a Data Subject to exercise his or her rights pursuant to the Privacy Laws in relation to the Customer Confidential Information (“Data Subject Request”). Customer shall use its best efforts to assist Company in responding to a Data Subject Request as directed by Company including the provision of additional data as required by company to identify Personal Data processed by Company relating to the Data Subject.
9.5. International Transfers. Subject to the terms of this Agreement, Company makes the following transfer mechanisms available, in corresponding order of precedence, to any transfer of Personal Data or Special Categories of Personal Data pursuant to this Agreement from the European Union, the European Economic Area, their Member States and the United Kingdom and Switzerland to countries which are not deemed to ensure an adequate level of data protection within the meaning of the Privacy Laws, to the extent such transfers are subject to such Privacy Laws: (i) Company’s EU - U.S. and Swiss - U.S. Privacy Shield Framework self-certifications, and (ii) the Standard Contractual Clauses for the transfer of Personal Data from the European Economic Area to third countries (controller to controller transfers), approved by the European Commission in Decision 2004/915/EC, dated 27 December 2004.
- Export Compliance and Foreign Reshipment Liability. Customer will not export, or re-export, either directly or indirectly, any Service, hardware, or technical information, or portions thereof, if provided, without first obtaining written permission from Company and any and all necessary licenses from the United States government and any other applicable government. Customer will be deemed to be the importer of record of any Service provided to Customer outside of the U.S., and will be responsible for any related import filings, requirements, documentation, fees, taxes, duties, or other compliance obligations imposed by the applicable destination country or jurisdiction.
- Force Majeure. A party is not liable under this Agreement for non-performance (other than failure to pay) caused by events or conditions beyond that party’s reasonable control, if the party makes reasonable efforts to perform.
- General Provisions. This Agreement constitutes the entire agreement between Customer and Company, and supersedes all previous agreements and understandings, whether oral or written, with respect to the subject matter hereof. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, the United Nations Convention on Contracts for the International Sale of Goods and any implementation of the Uniform Computer Information Transactions Act. The parties submit to exclusive jurisdiction and venue in an appropriate court sitting in Santa Clara County, California, USA. If any part of this Agreement is found to be void, unenforceable or invalid, it will not affect the other provisions of this Agreement. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that, or any other, provision. Neither party will assign this Agreement or any right or obligation hereunder without the other party’s prior written consent; provided, however that Company may assign this Agreement to a subsidiary or affiliate or a successor in interest in case of a merger or acquisition of Company or in case of a transfer of all or substantially all of its assets, or the assets of a major division, to another party. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. No person or entity other than the parties hereto will have any right to enforce or seek enforcement of this Agreement. Each party will perform its obligations hereunder as an independent contractor and not as an agent or representative of the other party. Nothing in this Agreement will be deemed or construed as creating a partnership, joint venture, or any similar relationship between the parties. Whenever appropriate in this Agreement, terms in the singular form shall include the plural (and vice versa).