Last Revised: November 8, 2019
Important: This is a legal agreement (“Agreement”) between you (the “Developer”) and Automation Anywhere, Inc. (“AAI”) Please read this Agreement carefully before checking the “Get Started” box. By checking the “Get Started” box, Developer agrees to be bound by the terms of this Agreement. If Developer does not agree, do not check the “Get Started” box.
By agreeing to this Agreement, Developer represents that Developer has full power, capacity and authority to accept the terms of this Agreement.
“Affiliate” means any entity not under sanctions or embargo restrictions by the U.S. Government that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Confidential Information” has the meaning given to it in Section 4.1.
“Documentation” means AAI’s installation guides and/or manuals, operating instructions and technical specifications necessary to enable Developer to properly install, configure and use the Services, updated from time to time, and made available through download or during installation of the Services.
“Services” means a Bot Store Developer Kit, which includes one (1) Bot Creator and one (1) Control Room.
“Term” has the meaning given to it in Section 3.1.1.
Use of Services.
This Agreement shall govern the use of Services described in an applicable Order Form signed by Developer and/or any of its Affiliates.
2.1 Use Rights and Obligations. AAI grants to Developer a limited, non-exclusive, non-transferable, personal, revocable, right to access and use the Services in amounts provisioned for Developer by AAI solely for the purpose of building bots and Digital Workers for AAI’s Bot Store. Developer agrees to operate the Services in compliance with the terms of this Agreement and any applicable laws, including but not limited to the Privacy Laws (as defined in Section 9 below).
2.2 Use Restrictions. Except as otherwise provided in this Agreement or as required by law or by the terms of a third-party license, Developer shall not, and shall not permit any employees, agents, or representatives to: (a) disclose, sell, assign, lease, commercially exploit or market any part of the Services or AAI Confidential Information in any way or manner; (b) copy, modify, enhance, translate, supplement, create derivative works from, or remove any proprietary notices or labels from any part of the Services or AAI Confidential Information; (c) disassemble, decompile, reverse engineer or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any AAI Confidential Information; or (d) use any Services which have not been provisioned by AAI for Developer’s use under this Agreement. Except as expressly permitted in this Agreement, Developer shall not cause or permit competitive analysis, benchmarking, or the use, evaluation or viewing of the Services for the purpose of testing, designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by the Services. Any use of the Services in breach of the foregoing by Developer that in AAI’s judgment threatens the security, integrity or availability of the Services, may result in AAI’s immediate suspension of the Services, however AAI will use commercially reasonable efforts under the circumstances to provide Developer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
2.3 Ownership; Intellectual Property Protection. Subject to the limited rights expressly granted hereunder, AAI, its Affiliates and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Developer hereunder other than as expressly set forth herein. The placement of a copyright notice on any part of the Services or AAI Confidential Information will not constitute publication or otherwise impair the confidential or trade secret nature of the Services or AAI Confidential Information.
Term and Termination.
The term of this Agreement (the “Term”) will begin when AAI approves the Developer’s use of the Services and will end twelve (12) months after the Effective Date, unless extended by AAI, in its sole and absolute discretion. In addition, AAI may, in its sole and absolute discretion, terminate this Agreement immediately upon written or electronic notice to Developer. Upon termination of this Agreement, Developer will cease all use of the Services provided hereunder and return, or destroy upon AAI’s request, all copies of any part of the Services then in Developer’s possession or under Developer’s control. The terms in Sections 2.3, 2.5, 3, 4, 5.2, 6, 7, 9 and 11 – 16 will survive any termination of this Agreement.
4.1 Confidential Information. As used herein, “Confidential Information” shall mean any non-public, confidential or proprietary information, including trade secrets, of a party hereto disclosed to the other party hereto, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” or “proprietary”.
4.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes known or available to the public, other than through a breach of an obligation hereunder by the receiving party; (b) is lawfully acquired by the receiving party from a third party without breach of a confidentiality restriction; (c) the receiving party can demonstrate by written proof was (i) already in its possession at the time it was disclosed hereunder by the disclosing party or (ii) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) has been approved for disclosure by the disclosing party.
4.3 Confidentiality Obligations. The receiving party will hold and maintain the disclosing party’s Confidential Information in confidence, exercising at least the same degree of care as the receiving party customarily exercises to protect its own proprietary information, but in no event with less than reasonable care. The receiving party will not, without the disclosing’s party prior written consent: (a) disclose any portion of the Confidential Information to any person or entity other than its and its Affiliates’ directors, officers, employees, agents or consultants who reasonably need access to the Confidential Information to fulfill the permitted uses described herein and who are bound to protect the Confidential Information on terms substantially similar to those in this Agreement; or (b) use Confidential Information except as permitted in this Agreement. Notwithstanding the foregoing, the receiving party may produce or disclose Confidential Information as required pursuant to applicable laws, regulations or court order, provided that it first gives the disclosing party notice of the request, if permitted, such that the disclosing party has an opportunity to defend, limit or protect such production or disclosure.
5.1 Indemnification by AAI. AAI will defend, indemnify and hold Developer harmless from any damages or losses that it may incur by reason of or arising out of any third-party claim that any part of the Services infringes any patent or copyright which is enforceable in the U.S. or misappropriates any trade secret. In any action based on a claim of infringement, AAI may, at its sole option and expense: (a) procure for Developer the right to continue using the applicable Services under the terms of this Agreement; (b) replace or modify the affected portion of the Services with a replacement or modification that permits the Services to function in substantially equivalent form as with the infringing portion of the Services; or (c) if options (a) and (b) above are not reasonably commercially available or practicable, then AAI may terminate Developer’s rights and AAI’s obligations hereunder with respect to the affected portion of the Services, in which case AAI will refund a pro rata portion of any prepaid fees (if any) for such affected portion of the Services equal to the period of time from the date of termination to the end of the then-current Term. AAI’s indemnification obligations under this Section 5.1 (Indemnification by AAI) are conditioned upon Developer: (a) promptly notifying AAI in writing of the claim; (b) granting AAI sole control of the defense and settlement of the claim; and (c) providing AAI with all assistance (at AAI’s expense), information, and authority reasonably required for the defense and settlement of the claim.
5.2 Indemnification by Developer. Developer will defend, indemnify, and hold AAI harmless from and against any loss, cost (including all legal fees), claim, injury, or other liability asserted by any person not a party to this Agreement, which relates to, or arises out of, directly or indirectly: (i) any breach by Developer of the Privacy Laws relating to Developer’s provision of Personal Data (as defined in Section 9.1 below) or any failure by Developer to comply with its obligations as set forth in Section 9.3 below; (ii) any breach by Developer of the terms contained in Section 2 (Use of Services) or the warranties contained in Section 9 (Data Privacy) of this Agreement; or (iii) Developer’s use of AAI Confidential Information in violation of this Agreement or (iv) Developer’s use of the Services in violation of any applicable laws, regulations, or policies.
5.3 Indemnity Exclusions. AAI will have no liability for any claim described in Section 5.1, and Developer will defend and indemnify AAI against any such claim, to the extent that it would not have occurred but for: (a) modifications to the Services made by Developer or a party acting on Developer's behalf; (b) the combination, operation or use of the Services with equipment, devices, software or data not supplied by AAI (including, without limitation, using the Services to automate AAI-selected software or processes); (c) Developer’s failure to use updated or modified forms of the Services provided by AAI; (d) Developer’s use of the Services other than in accordance with this Agreement; or (e) compliance by AAI with designs, plans or specifications furnished by or on behalf of Developer.
5.4 THE PROVISIONS OF THIS SECTION 5 SET FORTH AAI’S SOLE AND EXCLUSIVE OBLIGATIONS, AND DEVELOPER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
Upon reasonable notice, AAI shall have the right to audit Developer’s compliance with the use of the Services under this Agreement.
LIMITATION OF LIABILITY.
7.1 Limitation of Liability. SUBJECT TO THE EXCLUSIONS LISTED IN 7.2 BELOW, NEITHER PARTY SHALL BE LIABLE FOR: (A) ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES AND LOSS OF USE, DATA, BUSINESS, OR PROFITS), REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) AGGREGATE DAMAGES IN EXCESS OF THE GREATER OF: (1) THE FEES PAID BY DEVELOPER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR (2) ONE HUNDRED DOLLARS ($100.00).
7.2 Limitation of Liability Exclusions. The limitations of liability set forth in Section 7.1 (Limitation of Liability) above do not apply to: (a) damages related to claims that are the subject of indemnification under this Agreement, (b) claims based on either party’s breach of its obligations set forth in Section 4 (Confidentiality), (c) either party’s unauthorized use, distribution, or disclosure of the other party’s intellectual property, and (d) Developer’s payment obligations (if applicable).
7.3 No Limitation of Liability by Law. Because some jurisdictions do not allow liability or damages to be limited to the extent set forth above, some of the above limitations may not apply.
OTHER THAN THE EXPRESS WARRANTIES MADE BY AAI HEREIN, THE PARTIES ACKNOWLEDGE THAT THE SERVICES PROVIDED TO DEVELOPER PURSUANT TO AND FOR THE PURPOSES OF THIS AGREEMENT ARE PROVIDED "AS IS," “AS AVAILABLE,” AND WITHOUT ANY WARRANTY WHATSOEVER. AAI DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. NO AAI AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. TO THE EXTENT THE LAWS OF DEVELOPER’S JURISDICTION DO NOT PERMIT SUCH DISCLAIMER WITH RESPECT TO THE SERVICES HEREUNDER, AAI PROVIDES ONLY THE MINIMUM LAWFUL WARRANTY BEYOND THAT WARRANTY EXPRESSLY MADE ABOVE AND DISCLAIMS ALL WARRANTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMERS IN THIS SECTION 8 (WARRANTY DISCLAIMER) ARE A MATERIAL PART OF THIS AGREEMENT, AND AAI WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH DISCLAIMERS.
9.1 Privacy Laws. For the purposes of this Agreement, “Privacy Laws” means all state, federal, and international laws and regulations, including (without limitation): the California Consumer Protection Act of 2018 (“CCPA”), the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations and the Health Information Technology for Economic and Clinical Health Act (HITECH) and its implementing regulations (collectively, the “HIPAA Rules”); and laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom, related to data privacy, including (without limitation) the EU General Data Protection Regulation (2016/679) (“GDPR”) and any applicable national implementing laws. The terms “Personal Data,” “Special Categories of Personal Data,” “Data Subject(s),” and “Controller” as used in this Agreement shall have the meanings given to them in the GDPR. The terms “Protected Health Information,” “Covered Entity,” and “Business Associate” as used in this Agreement shall have the meaning given to it in the HIPAA Rules.
9.2 Roles of the Parties. The parties acknowledge and agree that (i) with respect to Developer’s Personal Data and/or Special Categories of Personal Data processed by AAI for the provision of Services under this Agreement, AAI shall be a Processor (or a ‘Service Provider’ for purposes of CCPA) and Developer shall be a Controller (or a ‘Business’ for purposes of CCPA), and (ii) with respect to any other Personal Data and/or Special Categories of Personal Data including (without limitation) such data processed for the AAI Research Purpose, each party shall be a separate Controller (and each party shall be responsible for its compliance with the applicable Privacy Laws with respect to the Developer Personal Data and/or Special Categories of Personal Data.
9.3 Developer Obligations. Notwithstanding any provision to the contrary herein, with respect to any Personal Data and/or Special Categories of Personal Data, Developer represents and warrants that: (i) the Personal Data and/or Special Categories of Personal Data have been collected in strict compliance with the applicable Privacy Laws; (ii) it has properly notified, and will continue to properly notify on not less than an annual basis, Data Subjects concerned that their Personal Data and/or Special Categories of Personal Data will be transferred to third parties including AAI, and will be processed for the purposes set forth in this Agreement (including, without limitation, the AAI Research Purpose as defined below in Section 9.4); and (iii) Developer has all necessary rights to transfer any Personal Data and/or Special Categories of Personal Data to AAI for the purposes set out in this Agreement and such transfer of the Personal Data and/or Special Categories of Personal Data and processing by AAI is and shall be in compliance with the Privacy Laws. Developer shall provide AAI with evidence to demonstrate it has such rights to transfer Personal Data and/or Special Categories of Personal Data to AAI on request by AAI. To the extent AAI is acting as a Processor under this Agreement (a) Developer further represents and warrants that it has a lawful basis for processing (and instructing AAI to process) Personal Data and/or Special Categories of Personal Data as set forth in this Agreement, and (b) Developer and AAI acknowledge and agree that the terms set forth in the Data Processing Agreement at https://www.automationanywhere.com/support/DPA.pdf: (i) shall apply with respect to AAI’s processing of Personal Data and/or Special Categories of Personal Data on Developer’s behalf, and (ii) are hereby incorporated into this Agreement by reference.
9.5 Data Subject Rights. AAI shall inform Developer about any request by a Data Subject to exercise his or her rights pursuant to the Privacy Laws in relation to any Developer Protected Health Information, Personal Data, or Special Categories of Personal Data (“Data Subject Request”). Developer shall use its commercially reasonable efforts to assist AAI in responding to a Data Subject Request as directed by AAI including the provision of additional data as required by AAI to identify Protected Health Information, Personal Data, or Special Categories of Personal Data processed by AAI relating to the Data Subject.
9.6 International Transfers. Subject to the terms of this Agreement, AAI makes the following transfer mechanisms available, in corresponding order of precedence, to any transfer of Personal Data or Special Categories of Personal Data pursuant to this Agreement from the European Union, the European Economic Area, their Member States and the United Kingdom and Switzerland to countries which are not deemed to ensure an adequate level of data protection within the meaning of the Privacy Laws, to the extent such transfers are subject to such Privacy Laws: (i) AAI’s EU - U.S. and Swiss - U.S. Privacy Shield Framework self-certifications, and (ii) where AAI is a Controller, the Standard Contractual Clauses for the transfer of Personal Data or Special Categories of Personal Data from the European Economic Area to third countries (controller to controller transfers), approved by the European Commission in Decision 2004/915/EC, dated 27 December 2004, and where AAI is a Processor, the Standard Contractual Clauses for the transfer of Personal Data or Special Categories of Personal Data from the European Economic Area to third countries (controller to processor transfers), approved by the European Commission in Decision 2010/87/EU, dated 5 February 2010.
9.7 Business Associate Agreement. If Developer is a Covered Entity or a Business Associate and the Personal Data or Special Categories of Personal Data include Protected Health Information, Developer shall not transfer or otherwise disclose to AAI any such Personal Health Information prior to the effectiveness of an applicable written Business Associate Agreement (“BAA”), in form and substance, accepted in writing by AAI in its discretion. If Developer is a Covered Entity and the Personal Data or Special Categories of Personal Data include Protected Health Information, please refer to the BAA available here, https://www.automationanywhere.com/support/CoveredEntityBAA.pdf, which is incorporated into this Agreement by reference. If Developer is a Business Associate, and the Personal Data or Special Categories of Personal Data include Protected Health Information, please refer to the BAA available here, https://www.automationanywhere.com/support/Sub-ContractorBAA.pdf, which is incorporated into this Agreement by reference.
From time to time, AAI may update the Services to introduce or include new features, versions, or functionality. To the extent an update requires additions or modifications to the terms of this Agreement, AAI will notify Developer accordingly. AAI reserves the right to charge a reasonable fee for the Services in the future. AAI shall provide Developer with at least ninety (90) days advance written notice prior to charging any fee(s) for the Services.
Export Compliance and Foreign Reshipment Liability.
Developer will not export, or re-export, either directly or indirectly, any Services, hardware, or technical information, or portions thereof, if provided, without first obtaining written permission from AAI and any and all necessary licenses from the United States government and any other applicable government. Developer will be deemed to be the importer of record of any Services provided to Developer outside of the U.S., and will be responsible for any related import filings, requirements, documentation, fees, taxes, duties, or other compliance obligations imposed by the applicable destination country or jurisdiction.
Each party shall be relieved of its obligations under this Agreement, and neither party shall be liable to the other party under this Agreement, for any liability, loss, damage, fine, penalty, sanction, cost or expense incurred by a party as a result of any event or condition that directly or indirectly prevents the party from performing an obligation hereunder, is beyond the reasonable control of the party, and could not, by the exercise of due diligence, have been avoided in whole or in part by the party, including, without limitation: any act of God, natural disaster, war, riot, blockade, insurrection, terrorism, sabotage, denial of service attacks (including, but not limited to, state or nation-sponsored denial of service attacks), virus or hacking attacks for which there is no commercially reasonable, known solution (including, but not limited to, intentional/targeted hacking by or on behalf of nation states), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance.
Any software incorporated in the Services and its accompanying Documentation are “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212, and may only be provided to or obtained by the United States government (1) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (2) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227-7201.1 and 227.7202-3. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
The AAI software incorporated in the Services contains and is distributed with open source software that is covered by a different license. AAI’s obligations set forth in this Agreement do not extend to any such open source software. Developer agrees that all such open source software shall be and shall remain subject to the terms and conditions under which it is provided. Any such open source software, and the notices, license terms and disclaimers applicable to such open source software shall be identified to Developer from time to time in writing (email or a notice visible within the software to suffice).
16.1 Governing Law. This Agreement is governed by the laws of the State of California, without regard to its conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The parties submit to exclusive jurisdiction and venue in an appropriate court sitting in Santa Clara County, California, USA.
16.2 Notices. All notices related to this Agreement shall be made in writing in English and shall be effective upon (a) personal delivery, (b) the second business day after mailing, and (c) the day of emailing (provided that notices of termination and indemnifiable claims shall also be sent by the processes described in (a) and (b) in addition to email). Notices sent to AAI shall be addressed to: 633 River Oaks Parkway, San Jose, CA 95134 U.S.A., ATTN: General Counsel, and emailed to: email@example.com. Notices sent to Developer shall be sent to the Developer address on the applicable Order Form, unless Developer has notified AAI of another address in accordance with this Section. Any notice given in conformance with this Section shall be effective upon actual delivery or refusal of delivery.
16.3 Assignment. Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent; provided, however that AAI may assign this Agreement to a subsidiary or Affiliate or a successor in interest in case of a merger or acquisition of AAI or in case of a transfer of all or substantially all of its assets, or the assets of a major division, to another entity. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
16.4 Third-Party Beneficiaries/Independent Contractors. No person or entity other than the parties hereto will have any right to enforce or seek enforcement of this Agreement. There are no third-party beneficiaries to this Agreement. Each party will perform its obligations hereunder as an independent contractor and not as an agent or representative of the other party. Nothing in this Agreement will be deemed or construed as creating a partnership, joint venture, or any similar relationship between the parties.
16.5 Entire Agreement/Order of Precedence. This Agreement, together with applicable Order Forms, the documents linked hereto and any exhibit(s) (as applicable) referenced herein, constitutes the entire understanding between Developer and AAI with respect to the subject matter hereof. No terms or conditions set forth in any purchase order or other document provided by Developer to AAI shall be part of any agreement between AAI and Developer unless specifically accepted by AAI in writing. In the event of a conflict between the terms of this Agreement and the terms of an Order Form, a document linked hereto or any exhibit(s) (as applicable) referenced herein, the terms of this Agreement shall take precedence and control unless the Order Form or other document explicitly references and overrides a provision of this Agreement.
16.6 Modification/Waiver/Severability. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any provision of this Agreement shall for any reason be held illegal or unenforceable, such provision shall be deemed severable from the remaining provisions of this Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement, unless such omission would frustrate the intent of the parties, in which case this Agreement may be reformed to give effect to the other provisions hereof.