Agreement. The terms and conditions set forth in this EverestLabs.AI Master Terms & Conditions (referred to herein as the “Terms & Conditions”) shall govern all Services subscribed to by you (“Customer”) from NYPIT, Inc. dba EverestLabs.AI (the “Company”) as well as any subscription to, or purchase of any equipment (“Equipment”), all under a Services Subscription Order (“SSO”) entered into between Company and Customer. These Terms & Conditions (including any terms referenced herein) and the terms of each SSO shall together constitute the full agreement of the parties (collectively, the “Agreement”). In the event the parties execute multiple SSOs, each SSO together with these Terms & Conditions, shall constitute a separate agreement between the parties.
Subscription to Services. During the service term specified in the SSO, the Company agrees to provide use of or access to the services (“Services”) to Customer as described in, and set forth in the applicable SSO. The Services may also include the right to use certain Equipment on a subscription basis as set forth on the applicable SSO (the use of Equipment on a subscription basis and other Services provided may also collectively be referred to herein or in an SSO as RaaS (or Robot as a Service)). The Services shall consist of: the Company proprietary or licensed software integrated or associated with, or otherwise useful in connection with operating or interfacing with the Equipment (the “Software”), and any attendant computer hardware components, networking apparatus, and systems provided by Company for operation of the Equipment (“Additional Hardware”), and additional services, such as training or installation support provided by Company (“Professional Services”), all as described in an applicable SSO. Except for the limited rights provided in this Agreement and the applicable SSO, and except as expressly provided for in the Agreement, all other rights with respect to the Equipment and Services shall be retained by the Company or its manufacturers or licensors. Customer is only acquiring the limited right to use or access the Services subject to the terms of these Terms & Conditions and the applicable SSO, and is only acquiring the limited rights to use the associated intellectual property, data, and materials in accordance with the Agreement. Except for such expressly provided limited rights, all other rights in and to the Services, and any and all related or attendant intellectual property, data, and materials are reserved and retained by the Company or its licensors, as applicable. The subscription to Services is governed by these Terms & Conditions and the applicable SSO. However, in the event of a conflict, the terms of such applicable SSO will govern, but only as to the subject matter addressed in that particular SSO.
Fees and Payment Terms. Fees for the Services are set forth in the applicable SSO, and are due and payable on the dates set forth in the SSO. In the absence of any due dates set forth in the SSO, payment shall be due within 30 days following the date of invoice issued by Company. Unless otherwise specified in an SSO, Customer shall pay all amounts due on the applicable due date in US dollars by such method acceptable to the Company (including credit card payment) of immediately available funds. If Customer does not pay any amount payable to the Company under the applicable SSO within 30 days, Customer shall pay to Company a late charge equal to the lower of: (a) the maximum amount allowed by law and (b) 3% of the late payment amount. Payment of any late charge does not excuse Customer of any breach. Customer shall pay all assessments and taxes and charges (other than federal income taxes imposed on or measured by Company’s net income) imposed on or with respect to the consummation of the transactions contemplated under the Agreement, including use of the Services and in connection with the shipment, possession, use, or operation of Equipment hereunder. Customer’s obligation to pay all subscription payments and other amounts under the Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.
Term; Termination. Unless earlier terminated pursuant to the provisions of these Terms & Conditions or the SSO, the Agreement shall continue for the service term set forth in the SSO. In the event of any breach by Customer that has not been cured within 30 days of receipt of Company’s notice thereof (10 days for any non-payment breach), Company shall have the right to terminate the Agreement upon notice to Customer. In the event of such early termination, Company shall have a right to declare all amounts under the SSO due and payable immediately, and take possession of, or render unusable, any Equipment or Services and uninstall or render inoperable any Software in any Equipment wherever it may be located, without demand or notice, without any court order or other process of law, and without liability to Customer for any damages occasioned or alleged to have been occasioned by such action, and to exercise any other right or remedy available to Company at law or in equity. In addition, if Customer is in breach of the Agreement, the Company may, in its sole discretion, make any payment or perform any obligation on behalf of Customer or take any action that the Company deems reasonably necessary to maintain and preserve any or all Equipment, the Services, and the Company’s interests therein. Customer shall not deem the Company’s payment or action to be the Company’s waiver of any breach or release of Customer. Customer shall pay immediately on demand all sums so paid by the Company, together with expenses (including legal fees and costs) incurred by the Company in connection therewith.
Confidential Information. In connection with the Agreement, each party (the “Disclosing Party”) may disclose or make available Confidential Information to the other party (the “Receiving Party”). “Confidential Information” means information, data, or materials, in any form or medium (whether oral, written, electronic, or other), that the Disclosing Party reasonably considers confidential in nature including, without limitation, information, data, or materials consisting of or relating to, or comprising, the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case marked, designated or otherwise identified as “confidential.” Without limiting the foregoing all Services (including the Software), Equipment and Collected Data (defined in Section 12 herein), and all intellectual property rights therein, is the Confidential Information of Company. Confidential Information does not include information, data, or materials that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to it being disclosed or made available to the Receiving Party in connection with the Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s non-compliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) perform its obligations under and in accordance with the Agreement; (b) except as may be permitted by and subject to its compliance with this Agreement, not disclose or permit access to Confidential Information other than to its employees (and with respect to Company to its licensors, manufacturers and service providers) who: (1) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (2) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under the Agreement; and (3) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its representatives’ compliance with and be responsible and liable for any of the foregoing’s noncompliance with, the terms of this Section. However, if the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under this Section; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Receiving Party’s obligations under this Section shall survive for a period of 5 years from termination or expiration or the longest amount of time permitted per applicable law, whichever is less; provided, however, with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations under this Section will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under such applicable law other than as a result of any act or omission of the Receiving Party or any of its Representatives. The Receiving Party shall be responsible for any breach of or non-compliance with this paragraph by any of its employees, service providers and agents.
Operational Service Levels. In the event Company provides any operational service levels in an SSO, then such operational service levels are subject to Customer’s compliance with these Terms & Conditions, and using the Equipment in accordance with the operating guidelines (“Operating Guidelines”), technical requirements (“Technical Requirements”) and specifications (“Specifications”) as provided by Company and those as contained in the applicable SSO and any additional use requirements set forth herein and therein. In the event any such operational service level fails to be achieved (other than such failure being caused by any act or omission of Customer or a third party, including any failure to use the applicable Services or Equipment in accordance with the Operating Guidelines, Technical Requirements and Specifications as provided by Company and those as set forth in the applicable SSO and any additional use requirements set forth herein or therein), then as Customer’s sole remedy and Company’s sole liability, Company shall provide one of the express remedies, as elected solely by Company, as may be set forth in the SSO.
Warranties. Customer warrants and represents that: (a) Customer has full organizational power and authority to enter into the Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby; (b) the execution, delivery, and performance by Customer of the Agreement, and the consummation of the transactions contemplated hereby, do not and will not: conflict with or result in a violation or breach of, or default under, any provision of the organizational documents of Customer; conflict with or result in a violation or breach of any provision of any applicable law; require the consent of, notice to, or other action by any person or entity, or conflict with, result in a violation or breach of, or constitute a breach; or result in the creation or imposition of any lien on any Services or Equipment; and (c) no consent, approval, permit, order, declaration, or filing with, or notice to, any governmental authority is required by or with respect to Customer in connection with the execution and delivery of the Agreement and the consummation of the transactions contemplated hereby and thereby.
Disclaimer. CUSTOMER AGREES THAT THE SERVICES AND EQUIPMENT, AND ANY OTHER SERVICES OR MATERIALS PROVIDED BY COMPANY TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE (A) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALINGS OR TRADE USAGE; (B) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (C) WARRANTY THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RETURN ON INVESTMENT WITH RESPECT TO THE AGREEMENT OR ANY SUBJECT MATTER HEREOF WHETHER ARISING BY LAW, COURSE OF DEALINGS, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. COMPANY DOES NOT REPRESENT OR WARRANT THAT USE OF THE SERVICES OR EQUIPMENT WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE, ACCURATE OR FREE FROM ERRORS OR DEFECTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RESULTS OBTAINED FROM ITS USE OF ANY EQUIPMENT OR SERVICES. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE COMPANY OTHER THAN AS SPECIFICALLY SET FORTH HEREIN. No third party, including any employee, partner, distributor or agent of Company or sales agents is authorized to give any representations, warranties or covenants greater or different than those contained in the Agreement, except as specifically set forth in a written agreement signed on behalf of Company and Customer, each by an authorized officer.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THE AGREEMENT, INCLUDING THE APPLICABLE SSO, OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE ACTUAL FEES PAID TO COMPANY UNDER THE APPLICABLE SSO BY CUSTOMER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR THE SUBJECT MATTER HEREOF UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (c) COST OF REPLACEMENT GOODS OR SERVICES; (d) LOSS OF GOODWILL OR REPUTATION; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Indemnity. Customer shall indemnify, defend, and hold harmless the Company and its affiliates and their respective officers, directors, employees, agents and representatives (collectively, “Company Indemnitees”) against any and all damages incurred or loss suffered by Company Indemnitees, relating to any action, lawsuit or claim of a third party arising out of or relating to: (a) the selection, manufacture, delivery, purchase, acceptance, or rejection of any Services and Equipment or the purchase and ownership of any Equipment during the service term set forth in the applicable SSO; (b) the subscription, possession, maintenance, use, condition, repair, return, disposition, or operation of any Services, including RaaS, or any parts or upgrades thereto; (c) any inaccuracy in or breach of any of the representations of Customer contained in the Agreement; (d) any breach of any covenant, agreement, or obligation to be performed by Customer pursuant to the Agreement; (e) any assertion of the infringement of any intellectual property rights of third parties arising out of Customer’s use of the Services or Equipment; or (f) the operation of the Services and Equipment outside of the Operating Guidelines, Technical Requirements and Specifications as provided by Company and those as set forth in the applicable SSO and any additional use requirements set forth therein.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for Customer’s obligation to make payments to the Company under the Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of the Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall give notice in writing within 15 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to mitigate the impact of such Force Majeure Event on its performance of the Agreement.
IP Rights. Except for the limited rights provided in this Agreement, all other rights with respect to the Services and Equipment shall be retained by Company or its manufacturers or licensors. Customer is only acquiring the limited right to use or access the Services, including RaaS, subject to the terms of the Agreement. Company retains ownership of all data gathered by the Service and Equipment (including images or video captured, input/output data and other feedback and diagnostic information (the “Collected Data”)) and all intellectual property rights therein. Customer agrees that, to the fullest extent permitted per applicable laws, all rights, title, and interests in and to the Collected Data shall be owned by Company and Customer hereby assigns, transfers, and conveys to Company, automatically and irrevocably, for no additional consideration, all rights, title, and interests including, without limitation, intellectual property rights, in and to the Collected Data to Company immediately upon its collection or coming into existence.
Privacy Policy. Customer understands and acknowledges that to the extent it provides Company with any personal data, such information shall be subject to the terms of the Company’s privacy policy as made available to Customer and subject to periodic updates. The Customer shall be solely responsible for obtaining all necessary consents or other approvals in connection with personal data provided to the Company.
Assignment. Customer may not assign (including by merger, acquisition, operation of law, sale of equity securities representing a majority of the voting power of Customer’s voting securities or similar transaction) any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section 14 shall be null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under the Agreement. The Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
Governing Law; Venue. The Agreement, and all matters arising out of or relating hereto, are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the Northern District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Alameda County. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party hereby waives any right it has to a trial jury in any action, suit, or proceeding arising out of or in connection with this Agreement.
Customer Feedback. In the event Customer provides Company with any feedback, ideas, improvements, modifications, content, discoveries, inventions or other information, data, content, or materials intended to improve the Equipment or the Services (“Customer Feedback”), Customer hereby assigns, transfers, and conveys to Company automatically and irrevocably, all rights, title, and interests including, without limitation, all intellectual property rights in and to such Customer Feedback for no additional consideration.
Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that the Company may, without Customer’s consent, include Customer’s name and other indicia in its lists of the Company’s current or former customers of the Company in promotional and marketing materials.
Miscellaneous. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No amendment to or rescission, termination, or discharge of the Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of the Agreement and signed by an authorized representative of each party to the Agreement. No waiver under the Agreement is effective unless it is in writing, identified as a waiver to the Agreement and signed by an authorized representative of the party waiving its right. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. Each party acknowledges that a breach or threatened breach by such party of any of its obligations under the Agreement would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the non-breaching party to the Agreement will, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). Nothing herein creates a joint venture or partnership between the parties to the Agreement or an employee/employer relationship. The Company is an independent contractor pursuant to the Agreement. The terms of Sections 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 15, 16, 17 and 18 of these Terms & Conditions, the Services Additional Terms, the Equipment Additional Terms and the Purchased Equipment Additional Terms set forth below, along with Customer’s payment obligations under the Agreement, shall survive any termination or expiration of this Agreement.
License Grant. Subject to the terms and conditions of the Agreement, the Company hereby grants to Customer during the service term set forth under the SSO, a non-exclusive, non-transferable, and non-sublicensable license to access and use the Services solely for the Permitted Use. The term “Permitted Use” shall mean: (a) use the Services, including RaaS, solely as provided by Company and in accordance with these Terms & Conditions; (b) execute and run one copy of any Software on Equipment under a RaaS subscription or any purchased Equipment, and (c) use all Services and Equipment solely in connection with Customer’s internal business purposes only. The Customer understands and agrees that any Software will be stored on and run from the Equipment provided by Company, which Equipment shall be equipped with access control software or other features that permit access thereto solely by the Company.
License Restrictions. Except as expressly permitted by this Agreement or any Third Party Licenses (defined herein), Customer shall not, and shall not permit others to: (i) access, copy, modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Services, including the Software; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Services, including the Software, available, in whole or in part, to any third party, including by merger, acquisition, operation of law, sale of equity securities representing a majority of the voting power of Customer’s voting securities or similar transaction; or (iii) reverse engineer, disassemble, decompile, decode, or adapt the Services, including the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part. Customer understands and agrees that nothing in this Agreement grants to Customer any right, title, or interest in and to the Services, including the Software, the rights in which are expressly reserved by Company.
Third Party Licenses. The Customer understands and agrees that the Software may contain or include software that is licensed to Company from one or more third parties (“Third Party Software”) including, without limitation, open source components. The Customer understands and agrees that, in addition to the terms and conditions in this Agreement, the Customer’s use of the Software shall be governed by, and subject to, the terms and conditions of the applicable third party licenses for such Third Party Software (“Third Party Licenses”). The Third Party Licenses will be provided by Company to Customer within 10 Business Days upon request by Customer and such terms and conditions may be subject to change from time to time during the SSO service term. Company will use commercially reasonable efforts to notify Customer of any change in the applicable terms and conditions of the Third Party Licenses prior to such change coming into effect. However, it is Customer’s responsibility to check the website from time to time to ensure its compliance with the Third Party Licenses.
Dashboard Terms of Use. The parties understand and agree that this Agreement does not govern any online dashboard that may be made available to Customer from Company accessible via a web browser that, among other things, provides the Customer with a dashboard of information concerning the Services and Equipment and the Customer’s use or operation thereof (the “Dashboard Services”). The Customer’s rights, duties, and obligations with respect to such Dashboard Services are set forth in Company’s click-through terms of use which will be made available by Company in connection with the Dashboard Services, and which may be modified or updated from time to time as set forth therein. The Customer agrees to be bound by such Dashboard terms of use to the extent it uses the Dashboard Services.
Delivery and Installation. Company shall install the Software onto the RaaS Equipment or on any purchased Equipment on or prior to the installation of the Equipment at Customer’s installation site. Customer will provide all necessary cooperation and assistance requested by Company. Customer understands and agrees that in order to ensure proper operation of the Equipment, the Equipment must have access to and be connected to the internet via an appropriate internet connection. Following the expiration of the SSO service term, at Company’s election, the Software shall either be erased or removed from any Equipment.
EEquipment Additional Terms The following terms shall also apply to all Equipment regardless whether Customer has been provided access pursuant to a RaaS subscription or has otherwise purchased any Equipment under an SSO:
Site Preparation; Implementation of Equipment. Customer shall be solely responsible for the preparation of the designated site and for the installation and implementation of the Equipment. Company shall provide implementation support to Customer for the fee provided for under the SSO, which will involve attendance of a Company employee during the dates agreed upon by the parties to act as a subject matter expert during Customer’s installation and implementation of the Equipment.
Use of the Equipment. Customer shall, at all times, use the Equipment in accordance with the Operating Guidelines, Technical Requirements and Specifications provided by Company, and those set forth in the applicable SSO and any additional use requirements set forth herein or therein. Customer shall ensure only properly trained users shall operate the Equipment, and the Equipment may only be used in connection with Customer’s internal business operations. Customer shall not interfere, modify, attempt to gain unauthorized access to, remove, destroy, mutilate, or otherwise disconnect any Additional Hardware, Software or Services, or otherwise interfere with the power supply, air supply, or internet connection with respect to the Equipment or any portion thereof, except in the event of an emergency that presents an imminent threat to the operational integrity of Customer’s business or in the event of scheduled maintenance.
Recordings. Customer understands and agrees that each element, component, or unit of Equipment includes one or more video cameras that may automatically activate and record images or moving video of its surroundings in the event a person attempts to gain unauthorized access to or otherwise interfere with such Equipment or portion thereof. Customer hereby consents to such recordings and the transmission of such recordings to Company, as well as to Company’s use thereof for Company’s internal business purposes related to enforcement of the provisions hereof, for law enforcement purposes, and for all other legal purposes. Customer agrees to post one or more appropriate notices, compliant with applicable law, conspicuously notifying persons in proximity to each element, component, or unit of Equipment of this recording feature and the use of such recordings by Company. Company shall not be liable, financially or otherwise, to Customer or to any third party for use of such recordings in accordance with this paragraph, or in accordance with applicable law.
Prohibitions Regarding Equipment. Customer shall not move any element, component, or unit of Equipment from its location without the Company’s prior written consent. Customer shall not affix or attach any Equipment to real property or any improvements. The parties intend that all Equipment remain at all times personal property and not a fixture under applicable law, even if Equipment, or any part thereof, may be or becomes affixed or attached to real property or any improvements. Upon the Company’s written request, Customer shall obtain and provide to the Company, from each real property landlord, mortgagee, or lienholder for each location where Equipment is located, a waiver of any interest that it may have in any element, component, or unit of the Equipment arising from its interest in the real property, and Customer shall at all times keep the Equipment free and clear of all liens. Any relocation of the Equipment without Company’s prior written consent, or other violation of this Section 27 shall void any Operational Service Levels contained in the applicable SSO.
Inspection. Customer shall permit the Company or its representatives on reasonable notice to inspect the Equipment during regular business hours, and in compliance with Customer’s reasonable security procedures.
Equipment Maintenance. Customer, at its own expense, shall maintain and keep the Equipment: (a) in the same condition as when delivered to its location, subject to reasonable ordinary wear; (b) in compliance with any applicable Operating Guidelines, Technical Requirements and Specifications as provided by Company and those as set forth in the applicable SSO and any additional use requirements set forth herein or therein; and (c) in compliance with applicable law. Company shall not be responsible (and Customer shall be liable) for any damage, defect, or error to or affecting operation of the Equipment or the Additional Hardware that is not caused by reasonable ordinary wear or that results from Customer’s breach of these Terms & Conditions and applicable SSO or use of the Equipment, Additional Hardware, Software or Services outside the scope of the rights granted herein. Customer will be responsible for provide all infrastructure work as necessary, to support the Equipment, including but not limited to: attaining and maintaining all necessary permits and inspections prior to commissioning Equipment; arranging for electrical installation and equipment as needed; providing all electrical connections, electricity, compressed air, and ethernet drops; and providing all necessary bins, chutes, or conveyors for drop points for recovered objects. Drop points will be adjacent to the robotic arm platforms in close enough proximity to allow successful drops.
Replacement of Parts. If any part or component of the Equipment becomes lost, stolen, damaged beyond repair, or otherwise permanently rendered unfit for use, Customer shall contact Company to replace the part or component. Company or its agent or contractor shall replace the part or component as quickly as commercially practicable, taking into consideration available inventory of replacement parts or components and the availability of Company or its agents or contractors to implement such replacement. Unless otherwise set forth in the SSO, Customer shall be responsible for the cost of replacement. Customer shall be responsible for keeping in stock a sufficient number of suction cup effectors and other wearable parts and components as specified by Company.
Return of Equipment under a RaaS Subscription. In the event Customer has access to Equipment pursuant to a RaaS solution under an SSO (and elects not to renew the subscription service nor, if applicable, exercise its purchase option to the Equipment thereto), then at the expiration of the service term set forth in the applicable SSO, Customer, at Customer’s sole cost and expense, no later than 30 days after expiration of such term, shall de-install, remove and ship the Equipment from the Customer location back to Company, at a location as instructed by Company. Company must be present when Customer is de-installing the Equipment to allow Company the opportunity to inspect the Equipment prior to shipping. All Equipment removed from Customer location shall: be free and clear of all liens or other rights or claims of Customer or third parties; be in the same condition as when delivered to Customer, reasonable ordinary wear excepted; be free of any insignia or markings of Customer or any sublessee; and be accompanied with return of all records relating to the Equipment, including all maintenance records, logs, or data in Customer’s possession or required to be maintained by law.
Option to Purchase Equipment under a RaaS Subscription Following Expiration of SSO Service Term. Customer may elect to purchase the Equipment under a RaaS subscription upon the expiration of the service term set forth in the applicable SSO, provided that Customer gives written notice to Company at least 60 days prior to the end of such service term of Customer’s election to purchase the Equipment for the purchase price set forth in an applicable SSO, or if no such purchase price is set forth in the SSO, the purchase price agreed to by Customer and Company after good faith negotiations. Provided that a purchase price is specified in the SSO or agreed to by the parties, Customer may maintain possession of the Equipment, and title and ownership in the Equipment shall pass to Customer upon expiration of the applicable service term, provided that Customer has paid the purchase price to Company, and provided further that Customer acknowledges and agrees that such Equipment may not be operated without an applicable SSO executed by the Company for the provision of Services that is necessary for operation of the Equipment (including a license to use the applicable Software and Additional Hardware). If the purchase price is not specified in the SSO and the parties cannot agree on a purchase price, Customer shall be obligated to return the Equipment pursuant to the above paragraph.
Rights of Third-Party Assignee. Customer agrees that all rights of Company hereunder, including but not limited to the right to take possession of the Equipment, may be assigned by Company to a third party, including a third-party lender or manufacturer that is providing financing with respect to the Equipment.
Risk of Loss; Impairment to Equipment under a RaaS Subscription. Risk of Loss. Customer shall bear all risk of loss, damage (including, but not limited to any water damage), destruction, theft, and condemnation to or of any Equipment under a RaaS subscription from any cause whatsoever (“Loss”) for so long as any such Equipment is in Customer’s possession, custody, or control. Customer shall notify the Company in writing within 10 days of any such Loss that is, or with the passing of time could constitute, a material impairment of the Equipment’s function (i.e., a total Loss).
Material Impairment to Equipment under a RaaS Subscription. In the event the Company determines in its reasonable discretion that a Loss has materially impaired the Equipment under a RaaS Solution, Customer shall pay, on the Company’s demand, the following amounts (collectively, “Loss Payment”): (a) all subscription payments and other amounts due prior to the date on which the Loss Payment is made under the applicable SSO; plus (b) the value of the Equipment specified in an applicable SSO, or if not specified in the SSO, then the commercial value of the Equipment prior to the Loss event as reasonably determined by Company (“Equipment Value”). The Agreement shall terminate with respect to any materially impaired Equipment on receipt by the Company of the corresponding Loss Payment. Upon such termination, Customer shall return such Equipment and any related Additional Hardware according to Section 4 of the Terms & Conditions and Company’s instructions.
Non-material Impairment. If the Company determines in its reasonable discretion that the Loss has not materially impaired the Equipment under a RaaS subscription and that that Loss was not a result of Customer’s breach of the Agreement, then: (a) the Agreement shall continue with respect to such Equipment as though no Loss had occurred; and (b) Company shall reasonably repair the Equipment at Customer’s expense.
Insurance. For any Equipment used under a RaaS subscription, Customer, at its own expense, shall provide and maintain comprehensive general liability insurance, in: (a) an amount no less than $200,000 per element, component, or unit of Equipment (the “Property Insurance”); and (b) a form, and with insurer, reasonably satisfactory to the Company, including without limitation, the insurer’s agreement to give the Company 30 days’ prior written notice before cancellation or material change thereof. Customer shall name the Company as an additional insured (but without imposing on the Company any liability to pay the premiums for such insurance). Customer shall provide Company with certificates of insurance evidencing the insurance coverage required hereunder, as may be requested by Company, from time to time.
Application of Insurance Proceeds for Equipment Under a RaaS Subscription. Amounts Received By The Company. If the Company receives any proceeds as loss payee of the Property Insurance, or under any condemnation proceeding related to Equipment under a RaaS subscription, it shall: (a) if received pursuant to a Loss that has materially impaired any Equipment, credit such proceeds against Customer’s obligations to make Loss Payments to the Company hereunder or if no such amounts are then due and outstanding, remit such proceeds to Customer; or (b) if received pursuant to a Loss that has not materially impaired the Equipment, remit the proceeds to Customer. If Customer is in breach of the Agreement, the Company may hold any such proceeds as security for the obligations of Customer under the Agreement and apply such amounts in its discretion against Customer’s obligations under the Agreement.
Amounts Received By Customer. If Customer receives any proceeds under the Property Insurance, unless received with respect to a Loss that has not materially impaired the Equipment under a RaaS subscription, it shall promptly forward such amounts to the Company to be applied by the Company to the Loss Payments owed by Customer to Company in accordance with this Agreement. If Customer is in breach of the Agreement and it receives any proceeds under the Property Insurance (regardless of whether the Equipment is materially impaired) or other insurance coverage maintained by Customer, it shall forward such amounts to the Company as security for the obligations of Customer under the Agreement to be applied by the Company in its discretion against Customer’s obligations under the Agreement.
Purchased Equipment Additional Terms. The following terms shall also apply to any Equipment purchased by Customer under an SSO:
Purchase. The Company agrees to sell to Customer, and Customer agrees to purchase from the Company, the particular items of Equipment described more fully in the SSO. The sale of any item of Equipment is governed by the terms and conditions of these Terms & Conditions, as well as by the terms and conditions set forth in the applicable SSO. The Customer understands and agrees that the purchase of any item of Equipment transfers only title to each item of Equipment identified on the SSO and does not constitute a transfer of any intellectual property rights therein, nor transfers any title to any Services, including the Software, Additional Hardware or Additional Services, that are made available by Company to Customer under any SSO, which Software, Additional Hardware and Additional Services may only be used by Customer for the duration of the SSO service term and in compliance with the Agreement. Upon payment for any such purchase of any Equipment by Customer, the Company shall deliver title to such item of Equipment pursuant to a bill of sale duly executed by the Company. Customer understands that at the end of the SSO service term, Company shall be entitled to remove, take possession of, uninstall or render inoperable, any Software, Additional Hardware or Additional Services, including, without limitation any Software integrated in any purchased Equipment and any Additional Hardware connected to, or used with, the purchased Equipment.
Purchase Price. Customer shall pay the Company for any purchased Equipment the amount set forth in the applicable SSO upon such terms set forth in the Agreement, including the applicable SSO.
Risk of Loss. Customer shall bear all risk of loss, damage (including, but not limited to any water damage), destruction, theft, and condemnation to or of any purchased Equipment from any cause whatsoever.
