Last Revised: 3/25/2019
PLEASE READ CAREFULLY THE FOLLOWING AGREEMENT WHICH RELATES TO THE RIGHT TO USE THE ROBIN SYSTEMS SOLUTION.
CUSTOMER ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY INSTANTIATING THE ROBIN SYSTEMS SOLUTION VIA A CLOUD SERVICES PROVIDER, BY AUTHORIZING OR OTHERWISE USING THE ROBIN SYSTEMS SOLUTION OR ROBIN SYSTEMS SOFTWARE.
IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, ROBIN SYSTEMS DOES NOT CONSENT TO USE OF THE ROBIN SYSTEMS’ SOLUTION OR ROBIN SYSTEMS’ SOFTWARE, AND CUSTOMER MUST EXIT THE INSTALLATION PROCESS AND NOT MAKE ANY USE OF THE ROBIN SYSTEMS’ SOLUTION OR ROBIN SYSTEMS’ SOFTWARE. CUSTOMER HEREBY WAIVES ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND ROBIN SYSTEMS, INC. (“ROBIN SYSTEMS”) AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, CUSTOMER WILL HAVE THE RIGHTS SET FORTH BELOW FOR SO LONG AS THE CUSTOMER COMPLIES WITH THIS AGREEMENT.
1.1. “Acceptable Use Policy” means the policy attached hereto as Appendix A which may be amended from time to time, or may later be set out in a linked document.
1.2. “Affiliate” means any entity which controls, is controlled by or is under common control with either of the parties. Any entity shall be deemed to “control” another entity if it owns directly or indirectly more than 50% of the outstanding voting securities or capital of the other entity or other comparable equity with respect to an entity other than a corporation.
1.4. “Authorized Server” means any cloud devices and/or storage devices managed by Robin Systems capable of running the Robin Systems’ Solution that is enabled through a Cloud Service Provider.
1.5. “Cloud Service Provider” means an entity that provides a cloud-based storage solution, such as Google, Amazon Web Services, Microsoft Azure and other similar cloud providers.
1.6. “Customer Data” means all content placed in the Robin Systems’ Solution by Customer or its agents.
1.7. “Documentation” means the instructions, user guides, manuals and release notes provided by Robin Systems in printed and electronic form that describe the installation, operation, use or technical specifications of the Robin Systems’ Solution.
1.8. “EAP” means ROBIN SYSTEMS’s Early Access Program, which allows the Customer to use the ROBIN SYSTEMS Solution during its development process.
1.9. “New Version” means any new version of the ROBIN SYSTEMS Solution as defined and numbered by ROBIN SYSTEMS, that ROBIN SYSTEMS may from time to time introduce and the market generally as a licensed product distinct from the ROBIN SYSTEMS Solution, and which ROBIN SYSTEMS may make available to the Customer.
1.10. “Normal Working Hours” means the regular business hours when ROBIN SYSTEMS has live support available, which may vary depending on the location of the Customer.
1.11. “Open Source License(s)” means third party owned open source software that is licensed under open source licenses provided by such third parties.
1.13. “Professional Services” means any configuration, integration, training, customization or other non-automated personal services provided by ROBIN SYSTEMS, excluding Support Services.
1.15. “ROBIN SYSTEMS Software” means the computer code, typically in binary form, but including scripts and other human-readable code that may be provided by ROBIN SYSTEMS as part of any licensed version offered by ROBIN SYSTEMS.
1.16. “ROBIN SYSTEMS Solution” means the ROBIN SYSTEMS cloud file system software solution identified in the administration interface to a Cloud Service Provider that enables a cloud version of the ROBIN SYSTEMS Software, and all Updates thereto. For the purpose of this Agreement the term “ROBIN SYSTEMS Solution” shall include any related Documentation.
1.17. “Scheduled Maintenance Window” means ROBIN SYSTEMS may perform system level maintenance, such as server restarting and upgrading, data maintenance and other typical system level procedures. The ROBIN SYSTEMS Solution may be unavailable during the Scheduled Maintenance Window.
1.18. “Service Level Objectives” means the objectives ROBIN SYSTEMS manages to as described at https://robin.io/support/support-maintenance-terms/. There are no Service Level Objectives for EAP or Test Versions.
1.19. “Storage Capacity” means the amount of disk or cloud-based storage that Customer shall be entitled to deploy in connection with the ROBIN SYSTEMS Solution.
1.20. “Subscription” means the type and scope of subscription to use the ROBIN SYSTEMS Solution by Customer based upon the service elections Customer makes in the Cloud Service Provider’s administration dashboard which will describe the Term of such subscription, Storage Capacity, and as applicable, any Service Level Objectives associated with such Subscription.
1.21. “Support Services” means the support and maintenance services described at https://robin.io/support/support-maintenance-terms/ as they may be amended from time to time.
1.22. “Term” means the period of time Customer may use the ROBIN SYSTEMS Solution subject to the earlier termination as provided herein.
1.23. “Test Version” means an instance of the ROBIN SYSTEMS Solution designated for testing and evaluation during service instantiation. Any version of the ROBIN SYSTEMS Solution that is offered without charge is deemed to be a Test Version.
1.24. “Updates” means any unspecified updates, service patches, or releases made to the ROBIN SYSTEMS Solution from time to time which may enhance or improve on existing features, or functions, modules, and technology which are generally made available by ROBIN SYSTEMS to its customers at no additional costs. These Updates may contain, among other things, error corrections, bug-fixes, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, eﬃciency or quality of the ROBIN SYSTEMS Solution, and excludes New Versions and/or Upgrades.
1.25. “Upgrades” any New Version, service patches, or releases which involve the addition of new features and/or new capabilities beyond the scope of the features and/or capabilities of the ROBIN SYSTEMS Solution provided during initial instantiation of the ROBIN SYSTEMS Solution.
1.26. “User” means an individual and its Aﬃliates’ employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer to use the ROBIN SYSTEMS Solution according to this Agreement.
2. RIGHTS AND REQUIREMENTS RELATED TO THE ROBIN SYSTEMS SOLUTION
2.1. Subject to Customer’s compliance with this Agreement, Customer has a license during the Term to use the ROBIN SYSTEMS Solution up to the Storage Capacity (or any applicable node or device limitations) in accordance with the Documentation that the Customer has selected or that is stated in the applicable order document, dashboard or other configuration panels. If Customer wishes to add Storage Capacity or to extend the Term, purchase of an additional Subscription is required. Any deployment in excess of the Storage Capacity will incur additional charges.
2.2. Subject to payment of the fees to ROBIN SYSTEMS the ROBIN SYSTEMS Solution shall be enabled on Authorized Servers. If an Authorized Server becomes non-operable, the ROBIN SYSTEMS Solution may be installed on a substitute Authorized Server.
2.3. Software Minimum Requirements. The Customer acknowledges and agrees that the use of the ROBIN SYSTEMS Solution may require compatible public cloud infrastructure, hardware, internet access, and certain software which shall be set forth in the Documentation, which may be modified from time to time, however ROBIN SYSTEMS shall not, during the Term, make changes to the Documentation which materially adversely impact the Customer’s ability to use the ROBIN SYSTEMS Solution in existence on the date the Customer installs a version of the ROBIN SYSTEMS Solution in a Cloud Services Provider.
2.4. Verification and Reporting. At ROBIN SYSTEMS’s written request, which shall be no more than once in each three (3) month period, the Customer shall provide ROBIN SYSTEMS with a signed statement verifying that the ROBIN SYSTEMS Solution and Documentation are being used pursuant to the provisions of this Agreement. At ROBIN SYSTEMS’s written request and at a mutually agreed time, which shall be no more than once in each three (3) month period, the Customer shall grant ROBIN SYSTEMS access to Customer’s sites and/or Authorized Servers in order to audit the use of the ROBIN SYSTEMS Solution. Such audit shall be conducted during Customer’s regular business hours and without adversely impairing Customer’s business operations. If such audit establishes that Customer has used the ROBIN SYSTEMS Solution beyond the deployment permitted in this Agreement, ROBIN SYSTEMS reserves the right to charge Customer for the costs of performing the audit in addition to 125% of the standard list price for such additional use of the ROBIN SYSTEMS Solution.
2.5. EAP and Test Versions. Customer may be able to instantiate a version of the ROBIN SYSTEMS Solution that is in the EAP or is a Test Version. The EAP and Test Version instances are provided “AS IS” “WHERE IS” without any warranty. Customer’s sole right and remedy in respect of a claim of a defective instance in EAP or defective Test Version instance shall be to terminate use of such instance. Any use of production data in the EAP or in a Test Version is at the Customer’s sole risk.
2.6. Acceptable Use. The ROBIN SYSTEMS Solution may only be used for valid legal purposes, and Customer agrees to comply with the Acceptable Use Policy. ROBIN SYSTEMS has no duty to police Customer’s use of the ROBIN SYSTEMS Solution, however, ROBIN SYSTEMS has the right to suspend use of the ROBIN SYSTEMS Solution in the event of a breach of the Acceptable Use Policy, or in the event Customer takes actions or fails to take actions that materially and adversely impact ROBIN SYSTEMS.
3. ACCESS AND USE OF THE ROBIN SYSTEMS SOLUTION
3.1. Subject to the terms and conditions of this Agreement and Customer’s compliance herewith, including, the payment of the applicable fees, ROBIN SYSTEMS hereby grants Customer a revocable, nonexclusive, non-transferable, non-sublicensable, limited right during the Term, to access and use, and allow its Users to access and use, the ROBIN SYSTEMS Solution, solely for Customer’s internal business purposes, and use the ROBIN SYSTEMS Solution in machine-readable, object code form only, all in accordance with this Agreement. The foregoing rights are limited by the terms of the applicable Subscription.
3.2. ROBIN SYSTEMS may make available Documentation to Customer for its internal business purposes and solely in connection with the use of the ROBIN SYSTEMS Solution during the Term. Customer may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered as ROBIN SYSTEMS’s confidential information. Unless the Documentation is separately referred to herein, all references in this Agreement to the ROBIN SYSTEMS Solution shall include the Documentation.
3.3. Any rights not explicitly granted herein are reserved. This Agreement only gives the Customer limited rights to use the ROBIN SYSTEMS Solution as explicitly set forth in this Agreement. ROBIN SYSTEMS reserves all other rights. Customer may use the ROBIN SYSTEMS Solution only as expressly permitted in this Agreement. Customer shall not circumvent any technical protections that limit the use of the ROBIN SYSTEMS Solution in accordance with this Agreement.
3.4. Customer will not, and will not permit others to (i) work around any limitations or technical protections in the ROBIN SYSTEMS Solution; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) the ROBIN SYSTEMS Solution and/or any part thereof, or create any derivative work based on the ROBIN SYSTEMS Solution; (iii) make more copies of the ROBIN SYSTEMS Solution, or use the ROBIN SYSTEMS Solution in connection with any unauthorized cloud instances or storage devices, other than specified in this Agreement; (iv) test the ROBIN SYSTEMS Solution (other than on a Test Version or in the EAP to determine whether the ROBIN SYSTEMS Solution meets Customer’s requirements) or use the ROBIN SYSTEMS Solution in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise publish or made available the ROBIN SYSTEMS Solution to the public; (v) sublicense, transfer, rent, lease or lend the ROBIN SYSTEMS Solution; (vi) resell the ROBIN SYSTEMS Solution in substantially the form in which ROBIN SYSTEMS is licensing it to Customer (i.e., essentially, rebrand the ROBIN SYSTEMS Solution); (vii) disclose the ROBIN SYSTEMS Solution, its underlying software, or its sources by any means of dissemination; (viii) represent that Customer possesses any proprietary interest in the ROBIN SYSTEMS Solution; (ix) directly or indirectly, take any action to contest ROBIN SYSTEMS’s intellectual property rights or infringe them in any way; or (x) use the ROBIN SYSTEMS Solution for the purpose of building a similar or competitive product or software, provide services similar or substantially similar to those provided by ROBIN SYSTEMS or in any other manner competing with ROBIN SYSTEMS. Customer’s use of hardware or software to: (i) pool connections; (ii) re-route information; or (iii) reduce the number of devices or individuals that directly access or use the ROBIN SYSTEMS Solution (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of subscriptions that Customer is required to purchase in order to use or run the ROBIN SYSTEMS Solution.
3.5. Open Source Licenses. The ROBIN SYSTEMS Solution includes Open Source Licenses. By executing this Agreement, the Customer undertakes to comply with the terms and conditions of the Open Source Licenses. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this Agreement, the provisions of the Open Source Licenses shall prevail.
3.6. Export Restrictions. Customer acknowledges that the ROBIN SYSTEMS Solution may be subject to United States export restrictions. Customer will comply with all applicable national and international laws that apply to Customer’s use of the ROBIN SYSTEMS Solution, including United States Export Administration Regulations, as well as end-user, end use and destination restrictions which may be issued by the United States and other governments.
4. CUSTOMER DATA
4.1. Customer Data is solely owned by Customer. Customer will comply with all applicable data protection laws and regulations, including, without limitation, the EU General Data Protection Regulation (“GDPR”) as applicable. ROBIN SYSTEMS has no duty to review or audit Customer Data to determine its legality or the manner or method of its use or storage, and ROBIN SYSTEMS is not liable for any act or omission of the Customer or any of its other agents or contractors, that cause or result in any loss of Customer Data, unauthorized access to, or exceeding of authorized access in respect of, any Customer Data.
4.2. With the exception of the personal contact information required by ROBIN SYSTEMS and provided by Customer to permit ROBIN SYSTEMS to provide the ROBIN SYSTEMS Solution to Customer, Customer hereby represents and warrants that it shall not provide ROBIN SYSTEMS with any information which may be deemed Personal Information or any information which is related to children under the age of 13, or any health, financial, or insurance data or other data subject to specific regulatory or statutory protection regimes, including without limitation information which is regulated under the Children Online Privacy Protection Rule (COPPA) and the Health Insurance Portability and Accountability Act (HIPAA). Without derogating from the aforementioned, and in the event that Customer Data includes any Personal Information, Customer hereby represents and warrants that Customer has provided suﬃcient notices and obtained necessary consents required from any party and have otherwise the lawful basis upon which to share such information with ROBIN SYSTEMS, its aﬃliates, and make any and all uses as otherwise contemplated under this Agreement. Customer agrees (i) to maintain the security of any security or access information used by Customer to access the ROBIN SYSTEMS Solution; and (ii) to remain at all times fully responsible for all activities that occur through Customer’s account in connection with Customer Data.
5.1. Customer shall pay the amount of fees due either to the applicable Cloud Service Provider, if the ROBIN SYSTEMS Solution is provided through a consolidated billing system by such Cloud Service Provider, or if not, directly to ROBIN SYSTEMS. Any payment or part of a payment that is not paid by Customer when due shall constitute suﬃcient cause for ROBIN SYSTEMS to suspend its performance hereunder and terminate this Agreement, provided that a seven (7) days prior notice (by email) was provided. All fees shall be non-cancellable and the sums paid non-refundable except in the case of termination of this Agreement by Customer for breach by ROBIN SYSTEMS (pursuant to this Agreement) in which case the Customer shall be entitled to a refund of prepaid fees on a prorated basis from the termination date. Any discounts provided will apply only to the specific Term for which they were granted. Professional Services are optionally available to Customer subject to payment of applicable fees. The customer is solely responsible for payment of any taxes resulting from the access and use of the ROBIN SYSTEMS Solution, excluding any taxes based directly upon ROBIN SYSTEMS’s net income. If any such taxes are required to be withheld, Customer shall pay an amount to ROBIN SYSTEMS such that the net amount payable to ROBIN SYSTEMS after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
6. SUPPORT SERVICES; PROFESSIONAL SERVICES.
6.1. Subject to Customer’s compliance with this Agreement, ROBIN SYSTEMS shall provide the Support Services as described herein or if a Support Services agreement is referenced as part of this Agreement, in accordance with that Support Services agreement. The Support Services provided may require Customer to grant ROBIN SYSTEMS remote access to the Authorized Server(s) and Customer’s systems in order to allow ROBIN SYSTEMS to provide such Support Services. Granting access to ROBIN SYSTEMS to any Customer Servers for Support Services is in Customer’s control and sole discretion; Customer acknowledges that ROBIN SYSTEMS shall not be liable for failure to provide Support Services if Customer chooses not to grant ROBIN SYSTEMS access to Customer Servers, if applicable. ROBIN SYSTEMS will comply with all reasonable written policies provided by Customer for remote access. All Support Services are provided during ROBIN SYSTEMS’s Normal Working Hours, or by email for after Normal Working Hours. ROBIN SYSTEMS may suspend the ROBIN SYSTEMS Solution for maintenance during the Scheduled Maintenance Window.
6.2. The Support Services do not include any Professional Services ordered by Customer with respect to the ROBIN SYSTEMS Solution or use thereof by Customer in its system or in accordance with its requirements or specifications. If Customer desires any Professional Services with respect to the ROBIN SYSTEMS Solution, such Professional Services shall be subject to payment and governed by another agreement.
7. WARRANTY; DISCLAIMERS
7.1. Limited Warranty. ROBIN SYSTEMS warrants, for Customer’s benefit alone, that the ROBIN SYSTEMS Solution, as provided by ROBIN SYSTEMS, if operated as directed and in accordance with the Documentation, shall operate substantially in accordance with the functional specifications in the Documentation.
7.2. Disclaimers. THE ROBIN SYSTEMS SOLUTION IS COMPLEX COMPUTER SOFTWARE. ITS PERFORMANCE WILL VARY DEPENDING ON THE AUTHORIZED SERVERS ON WHICH IT IS INSTALLED, SOFTWARE INTERACTIONS, THE CONFIGURATION OF THE SOFTWARE AND OTHER FACTORS. THE ROBIN SYSTEMS SOLUTION IS NEITHER FAULT TOLERANT NOR FREE FROM ERRORS, CONFLICTS OR INTERRUPTIONS. ROBIN SYSTEMS DOES NOT WARRANT OR GUARANTEE THAT THE ROBIN SYSTEMS SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE ROBIN SYSTEMS SOLUTION WILL OPERATE ERROR-FREE, THAT CUSTOMER’S USE OF THE ROBIN SYSTEMS SOLUTION WILL BE UNINTERRUPTED, THAT IT WILL BE COMPATIBLE WITH ALL OF the CUSTOMER’S EQUIPMENT OR SOFTWARE CONFIGURATIONS OR THAT ROBIN SYSTEMS WILL CORRECT ALL ERRORS IN THE ROBIN SYSTEMS SOLUTION. IN ADDITION, THE WARRANTY IN SECTION 7.1 ABOVE DOES NOT COVER, AND ROBIN SYSTEMS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR PROBLEMS CAUSED BY MODIFICATIONS OR CUSTOMIZATIONS TO THE ROBIN SYSTEMS SOLUTION MADE BY CUSTOMER OR ANY OTHER THIRD PARTY ACTING ON CUSTOMER’S BEHALF, OR EVENTS BEYOND ROBIN SYSTEMS’ REASONABLE CONTROL. THE WARRANTIES STATED IN SECTION 7.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE ROBIN SYSTEMS SOLUTION AND DOCUMENTATION. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1 ABOVE, THE ROBIN SYSTEMS SOLUTION AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, AND ROBIN SYSTEMS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF TITLE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS; NO ROBIN SYSTEMS PARTNER, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
7.3. Exclusive Remedies. Customer’s exclusive remedy, and ROBIN SYSTEMS’ entire and sole liability and obligation, shall be to use reasonable commercial efforts to repair or adjust the ROBIN SYSTEMS Solution so that it operates as warranted; provided that (i) Customer has fully paid all applicable fees, (ii) Customer is not otherwise in breach of this Agreement, and (iii) Customer has reported in writing to ROBIN SYSTEMS the claimed failure promptly upon discovery. If ROBIN SYSTEMS is unable to repair or adjust the ROBIN SYSTEMS Solution within a reasonable time, Customer will be entitled to terminate this Agreement and recover any prepaid unused amount of the Subscription fees covering the remainder of the Term after the effective date of termination. ROBIN SYSTEMS may disclaim any obligation or liability under this Section 7 if ROBIN SYSTEMS determines that the ROBIN SYSTEMS Solution has been: (i) altered, modified, or serviced other than by ROBIN SYSTEMS; (ii) improperly installed or used in a manner other than as specified in the Documentation; or (iii) if Customer violated the terms of this Agreement. The above warranties shall apply only if the ROBIN SYSTEMS Solution is used on or in conjunction with the cloud instance(s) set up through the administrative interface of a Cloud Service Provider.
8. INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION
8.1. No rights other than those expressly set forth herein shall pass to the Customer. Customer acknowledges and agrees that the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software and the Documentation, including any related services and any revisions, corrections, modifications, enhancements and/or upgrades thereto, are ROBIN SYSTEMS’s property protected under copyright, trade secret, patent and other laws and treaties. Customer further acknowledges and agrees that all right, title, and interest in and to the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software, including associated intellectual property rights (including, without limitation, patents, copyrights, trade secrets and trademarks), evidenced by or embodied in and/or attached/connected/related to the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software (including, without limitation, the source code) Documentation and any related services, are and shall remain with ROBIN SYSTEMS. This Agreement does not convey to Customer interest in or to the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software, but only a limited revocable license to use the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of ROBIN SYSTEMS’s intellectual property rights under any law. Customer understands and acknowledges that the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software contains or includes proprietary confidential information and trade secrets of ROBIN SYSTEMS. Customer will not knowingly do anything to impair ROBIN SYSTEMS proprietary rights in the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software or seek to acquire or register any rights in ROBIN SYSTEMS’s proprietary marks, copyrights or information.
8.2. Each party agrees to keep confidential and to use only for purposes of performing its obligation under this Agreement or as otherwise permitted under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). The receiving party agrees that it shall hold all confidential information in confidence and shall safeguard the confidential information with at least the same degree of care that it takes to protect its own information of a similar nature, which in no event shall be less than a reasonable standard of care. The parties acknowledge that unauthorized disclosure or use of confidential information may give rise to the irreparable injury, which may not be adequately compensated by damages. The parties agree and acknowledge that money damages may not be a suﬃcient remedy for any breach or threatened breach of this confidentiality obligation by the receiving party and that the disclosing party shall be entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity. Notwithstanding any of the foregoing, Customer acknowledges and agrees that the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software, the results of any testing permitted herein, and any information related thereto (including the Documentation and pricing and payment terms) shall be deemed to constitute confidential information of ROBIN SYSTEMS. Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement. Notwithstanding the above, a party may store confidential information in its backup storage devices until it is overwritten in the normal course of backup storage rotation, provided that such stored information is maintained as confidential consistent with the terms of this section. The obligations in this section survive any expiration or termination of the Term, regardless of claim of breach.
8.3. Marks and Use of ROBIN SYSTEMS’s Name. This Agreement does not grant the Customer any rights to ROBIN SYSTEMS’s trademarks or service marks. Customer will not remove or modify any markings or any notice of ROBIN SYSTEMS’s proprietary rights from any Solution or Documentation. Customer agrees that ROBIN SYSTEMS may include its name in lists, presentations, webpages and displays used by ROBIN SYSTEMS which generally describe its customers and prospective customers.
8.4. Feedback. ROBIN SYSTEMS shall have a perpetual, royalty-free, worldwide, irrevocable, sublicensable and transferable license and right to use and incorporate into the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software and/or Documentation any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Users or Aﬃliates.
9.1. Indemnification by ROBIN SYSTEMS.
9.1.1. Infringement Indemnification. Customer shall give ROBIN SYSTEMS prompt written notice immediately following receipt of notice of such claim, suit or proceeding, full information regarding the claim, and reasonable assistance in its defense or settlement. ROBIN SYSTEMS shall be entitled to direct such defense and to settle or otherwise dispose of such claim, suit or proceeding as it sees fit, provided that any settlement intended to bind Customer shall not be final without Customer’s written consent, which consent shall not be unreasonably withheld.
9.1.2. Limitations on Indemnity Obligations. ROBIN SYSTEMS shall have no liability for any claim of infringement based upon: (i) modification of the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software by any party other than ROBIN SYSTEMS; (ii) use by Customer of a superseded or altered release of the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software or Documentation if such infringement would have been avoided by the use of a current unaltered release of the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software or Documentation that ROBIN SYSTEMS provides to Customer; (iii) the combination, operation or use of any ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software with software, data, cloud instances, storage devices, hardware or other materials either not furnished by ROBIN SYSTEMS or not contemplated in the Documentation, if such infringement would have been avoided by the use of the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software and Documentation without such software, data, hardware or other materials or data; or (iv) any trade secret claim, where Customer acquires the trade secret: (A) through improper means; (B) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (C) from a person (other than ROBIN SYSTEMS) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. Customer agrees to defend and hold ROBIN SYSTEMS and its licensors, and their respective employees, oﬃcers and directors harmless against any loss, cost or expenses incurred as a result of a claim based on the foregoing. Customer under Section 9.1, if an injunction is obtained in such action against Customer’s use of the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software, ROBIN SYSTEMS shall, at its option and expense, either: (i) obtain for Customer the right to continue to use the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software; (ii) replace the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software with a product with substantially equivalent functionality; or (iii) modify the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software so that it becomes non- infringing, while maintaining substantially equivalent functionality. If (i), (ii) or (iii) above are not commercially practical, then ROBIN SYSTEMS shall refund prepaid amounts of Subscription fees not yet used.
9.1.3. This Section 9.1.3 states ROBIN SYSTEMS’s entire liability and Customer’s sole and exclusive remedy for infringement.
9.2. Indemnification by Customer. Customer agrees, at its own expense, to indemnify, defend and hold harmless ROBIN SYSTEMS and its oﬃcers, directors, employees, agents, and aﬃliates, from all liabilities, claims, alleged claims, loss and damages (of every kind, whether known or unknown and suspected or unsuspected) including reasonable attorney’s fees, asserted by third parties, and related in any way to: (i) Customer’s breach of any term or condition of this Agreement; (ii) any breach of Customer Data to the extent caused by Customer or a Customer Aﬃliate and/or (iii) any rights of a third party with regard to Customer Data, including privacy or intellectual property rights. ROBIN SYSTEMS will provide customer with written notice of such claim, suit or action, will permit the customer to participate in the defense thereof, provided that customer shall cooperate fully with such defense.
10. LIMITATION OF LIABILITY.
10.1. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, WHATEVER THE LEGAL OR EQUITABLE BASIS FOR THE CLAIM, ROBIN SYSTEMS, NOR ANY OF ITS SUBSIDIARIES OR SUPPLIERS, WILL NOT BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE ROBIN SYSTEMS SOLUTION AND ROBIN SYSTEMS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ROBIN SYSTEMS’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID FOR THE ROBIN SYSTEMS SOLUTION IN THE 12 MONTHS PRECEDING THE ACCRUAL OF THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.
11. TERM AND TERMINATION.
11.1. The Customer will have the rights set forth herein for so long as the Customer complies with the terms of this Agreement. ROBIN SYSTEMS may terminate this Agreement if Customer breaches this Agreement or any other agreement with ROBIN SYSTEMS), provided that to the extent such claim is curable, such termination shall not be effective if such breach is cured within thirty (30) days of ROBIN SYSTEMS’s written notice of breach. Sections 1, 3.3, 3.4, 5 (to the extent fees remain unpaid), 7.2, 7.3, 8, and 9 through 12 will survive any termination or expiration of this Agreement. Upon any expiration or termination of this Agreement, except as provided in Section 11.2 below, Customer shall (a) cease using the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software and Documentation; and (b) to the extent applicable, return the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software and Documentation and any copies thereof to ROBIN SYSTEMS and/or certify in writing such destruction. This requirement applies to copies of the ROBIN SYSTEMS Solution and ROBIN SYSTEMS Software and Documentation in all forms, partial and complete, in and on all types of media and computer memory, and whether or not modified or merged into other materials. Customer may not place additional or new Customer Data in the ROBIN SYSTEMS Solution or ROBIN SYSTEMS Software after the effective date of termination.
11.2. CUSTOMER IS ADVISED THAT UPON TERMINATION, ROBIN SYSTEMS HAS NO DUTY TO MAINTAIN ANY COPIES OF CUSTOMER DATA, AND UPON DESTRUCTION OF THE PARTICULAR CLOUD DEVICE ON WHICH SUCH DATA WAS STORED, SUCH DATA WILL BE PERMANENTLY AND IRRETRIEVABLY DELETED. ROBIN SYSTEMS IS NOT LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR THE DESTRUCTION OF CUSTOMER DATA AFTER THE END OF THE TERM.
12.1. Customer Reference. Customer hereby consents to ROBIN SYSTEMS using its name and logo to identify Customer as a customer of ROBIN SYSTEMS, such as use on ROBIN SYSTEMS’s web site and marketing materials. This consent terminates upon termination of this Agreement.
12.2. Severability. In the event any provision or part of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.
12.3. Waiver. No waiver of any breach of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
12.4. Assignment. Customer may not assign any of its rights or obligations hereunder without ROBIN SYSTEMS’s prior written consent. ROBIN SYSTEMS may assign or transfer (I) its rights to receive money under this Agreement to any third party without limitation subject only to prompt written notice to Customer, and (ii) any and all other rights and obligations and undertakings hereunder in connection with a sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void.
12.5. Entire Agreement. This Agreement, including any referenced written addenda, and exhibits constitutes the entire agreement between the Parties and supersedes all previous agreements or representations, written or oral, with respect to its subject matter. This Agreement may be modified by ROBIN SYSTEMS by giving notice to Customer via the Cloud Service Provider administration dashboard, by email, or by other reasonable electronic means to the last known contact addresses of Customer. Such modification shall be effective retroactively with respect to the on the 15th calendar day after the first notice thereof (the “Notice Period”) unless Customer within such Notice Period gives written notice to ROBIN SYSTEMS that it does not accept such modification and ceases all use of the ROBIN SYSTEMS Solution granted herein.
12.6. Governing Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California as if performed wholly within California and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts located in California. The Parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
12.7. Attorney’s Fees. In any suit or proceeding between the Parties relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, and other professionals incurred in connection with the suit or proceeding, including costs, fees, and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement and shall survive and not be merged into any such judgment.
12.8. Informal Dispute Resolution. Except for the right of either Party to apply to a court of competent jurisdiction for injunctive relief, if any dispute arises between the Parties, the Parties shall first attempt to resolve such dispute among themselves prior to resorting to any formal legal action. Either Party may notify the other Party in writing of the occurrence of a dispute and establish a mutually convenient time and place to discuss the dispute. In any event, the meeting shall occur within a commercially reasonable period of time (which period shall not exceed fifteen (15) days from the date of the notice) and shall take place between ROBIN SYSTEMS’s appointed individual and Customer’s equivalent representative. If the meeting does not resolve the dispute, either Party may then give the other Party written notice that the dispute continues. Within a commercially reasonable period of time after such notice, which period shall not exceed fifteen (15) days from the date of such notice, designated executives of both Parties shall meet to discuss the issue at a mutually convenient time and place. Such executives of each Party shall be a senior executive of such Party. If the dispute has not been resolved within a reasonable period of time thereafter, then either Party may pursue applicable remedies under this Agreement, at law, or in equity.
Acceptable Use Policy
ACCEPTABLE USE OF ROBIN SYSTEMS SOLUTION. Customer agrees as follows in respect of the acceptable and unacceptable uses of the ROBIN SYSTEMS Solution. Customer will not and agrees not to:
1. Use or attempt to use the ROBIN SYSTEMS Solution for any illegal, abusive or unethical activities as determined by ROBIN SYSTEMS in ROBIN SYSTEMS’ sole discretion, which include by example and not limitation, bullying or harassing third parties, illegal stalking, the transmission of or storage of pornographic material, invasion of privacy, defamation, infringement of another person’s copyright, trade secret, patent, trademark or other intellectual property rights, hacking or cracking (gaining unauthorized use of a computer), distributing computer viruses or other malware, gambling, harassment of another or distribution of other harmful materials, code, programs or scripts, disclosing “insider trading” information, national secrets, or other information prohibited or restricted from disclosure.
2. Use the ROBIN SYSTEMS Solution to send or permit a User to send unsolicited bulk mail messages (“junk mail” or “spam”). This includes bulk-mailing of commercial advertising, information announcements, charitable solicitations, and political solicitations. Such material may only be sent to those who have specifically requested it or as authorized by applicable law, provided that if Customer asserts that Customer’s activities are authorized by applicable law, Customer shall provide an opinion of reputable counsel establishing a basis upon which Customer actions are taken. Malicious or threatening e-mail is also prohibited. Normally ROBIN SYSTEMS will assume that Customer is in compliance with this provision, however, if an upstream provider blacklists ROBIN SYSTEMS’s IP range or mail server as a result of activities ROBIN SYSTEMS traces to Customer, ROBIN SYSTEMS will presume that Customer is in violation of this provision.
3. Breach any applicable data protection statute by, for example, sending or storing personal information (as defined in applicable data protection statutes) in an unencrypted form.
4. Impersonate another person, falsify the source of TCP/IP packets, spoof any portion of an email or TCP/IP header, or misrepresent authorization to act on behalf of others. All messages and packets transmitted via the ROBIN SYSTEMS Solution should correctly identify the sender and source; Customer may not alter the attribution of origin in electronic mail messages or posting.
5. Undermine the security or integrity of computing systems or networks or gain unauthorized access or control over ROBIN SYSTEMS’s computers or any other person’s computers.
6. Permit another person to use Customer resources or the ROBIN SYSTEMS Solution to conduct any of the matters Customer is prohibited from doing.
7. Distribute any files in any peer-to-peer or file sharing arrangement, where it is possible that in such file sharing process any of the ROBIN SYSTEMS Solution may be used to distribute copyrighted materials to or from persons who are not authorized to receive, copy, distribute or use them.
8. Take any action that would cause ROBIN SYSTEMS to violate any terms of an upstream service provider’s or Cloud Service Provider’s acceptable use policy.
9. Conduct any security scans, penetration tests, or any kind of monitoring or vulnerability test on the ROBIN SYSTEMS Solution or any of ROBIN SYSTEMS’s infrastructure at any time (collectively a “Service Scan”), unless ROBIN SYSTEMS pre-consents in writing in ROBIN SYSTEMS’s sole discretion. If ROBIN SYSTEMS detects such Service Scan by Customer or any Aﬃliate or a User, ROBIN SYSTEMS may immediately and without notice suspend Customer’s (or the User’s) access to the ROBIN SYSTEMS Solution.
10. Engage in any activity disruptive or abusive towards ROBIN SYSTEMS’s other customers or to ROBIN SYSTEMS Solution operations, including and not limited to:
10.1. Distribute or post any virus, worm, Trojan horse, or computer code intended to disrupt ROBIN SYSTEMS Solution, destroy data, destroy or damage equipment or disrupt ROBIN SYSTEMS Solution operations;
10.2. Degrade or impair the operation of ROBIN SYSTEMS Solution servers and facilities or the servers and facilities of other network hosts or users;
10.3. Post messages or software programs that consume excessive CPU time or storage space;
10.4. Use the ROBIN SYSTEMS Solution for mining cryptocurrencies or for any similar computer intensive “mining” operations. In this section “cryptocurrency” means bitcoin, ether or Ethereum, any cryptocurrency listed at https://en.wikipedia.org/wiki/List_of_cryptocurrencies and any similar or later developed currency system based on a blockchain technology;
10.5. Subvert, or assist others in subverting, the security or integrity of any of ROBIN SYSTEMS Solution, facilities or equipment; and/or
10.6. Place false, fraudulent, materially incomplete or misleading information on the ROBIN SYSTEMS Solution.
11. The above list of acceptable and unacceptable uses of the ROBIN SYSTEMS Solution is not intended to be exhaustive, but rather illustrative of the range of unacceptable uses. ROBIN SYSTEMS has the right in ROBIN SYSTEMS’s sole discretion to determine whether any particular conduct is an acceptable use of the ROBIN SYSTEMS Solution. In cases where ROBIN SYSTEMS determines Customer engaged in conduct that Customer reasonably believed did not violate this policy in good faith, ROBIN SYSTEMS will endeavor to provide Customer electronic notice of such determination that such conduct is not an acceptable use, and provided Customer cease such conduct not later than 24 hours after such notice, Customer will not be considered to be in breach of this Acceptable Use Policy.