This Customer Agreement is effective between Customer (either an individual or entity) and X Robotics, Inc. ("X Robotics") a Delaware corporation, having its principal place of Business at 479 Jessie, San Francisco, CA 94103, upon acceptance by Customer of these terms or Customer's payment of an invoice provided by X Robotics that links to or provided access to the terms of this agreement. This agreement governs all services and products provided by X Robotics to the Customer.
1.1 Customer will pay a monthly price for the use of the Robots delivered by X Robotics in the amounts provided in the invoice or payment page.
1.2 Upon execution of this agreement, Customer will have 10 business days to provide a deposit according to the instructions found in invoice.
1.3 X Robotics must provide Delivery of the Robots to Customer by December 31, 2022, otherwise Customer will be entitled to a full refund of the deposit amount.
1.4 Customer cannot get the deposit back before December 31, 2022.
1.5 The deposit is not refundable after Delivery as provided.
2. Intellectual Property Rights.
2.1 No transfer of rights. Customer does not obtain any rights in the intellectual property of X Robotics by virtue of this agreement. Customer has the right to operate and use the Robots as a service according to the pricing of Exhibit A. Customer is not purchasing any Robots and does not obtain title to any robot by virtue of this agreement or the payment provided for herein.
2.2 No reverse engineering. Customer will not attempt to reverse engineer or otherwise attempt to derive information from the materials, Robots, services, and accompanying literature or technical documents provided by X Robotics ("X Robotics Confidential Information"). X Robotics Confidential Material will be kept confidential by Customer. Customer will ensure that its employees are aware of this confidentiality obligation and their obligation to maintain the confidentiality of X Robotics Confidential Material.
2.3 Confidential Information. Customer may disclose X Robotics Confidential Information to the extent such X Robotics Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it will provide X Robotics notice so that X Robotics may seek a protective order or other appropriate remedy or so X Robotics can waive compliance with the terms of this agreement and cooperate with Customer to obtain such protective order or other appropriate remedy. If no such protective order or other remedy is obtained or X Robotics waives compliance with the terms of this agreement, Customer may only disclose that portion of the X Robotics Confidential Information that it is advised by its legal counsel is legally required to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded confidential treatment.
2.4 Public Announcements. Customer will not make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of X Robotics except as required by law of the United States of America or government or regulatory authority.
2.5 Return of Robots and Information. Once this agreement is terminated, Customer must return all X Robotics Confidential Information to X Robotics. Customer must also return all Robots to X Robotics, X Robotics will be responsible for all reasonable expenses incurred to return the Robots and Customer must contact X Robotics before making return arrangements for approval by X Robotics or to allow X Robotics to make the return arrangements.
2.6 Access to Computer Systems. Any access given to a Computer System or the data on a Computer System under this agreement is limited to the use of the Robots and services in the normal operation of Customer's business. Unless otherwise provided in writing X Robotics, Customer, its Group, or its Representative may not access X Robotics's Computer System or the data on that Computer System for any other purpose. Any access to X Robotics's Computer System or the data on that Computer System under this agreement excludes the right to provide third parties access to that Computer System or the data on that Computer System. Any use of X Robotics's Computer System or the data on that Computer System beyond the permission given here or in writing by X Robotics is "without authorization or exceeds authorized access" within the meaning of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C). Any use of X Robotics's Computer System or the data on that Computer System beyond the permission given here or in writing by X Robotics is "without authorization or exceeds authorized access" within the meaning of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), and "without permission" within the meaning of California Penal Code § 502.
2.7 License to feedback. Customer licenses the feedback it provides to X Robotics about X Robotics's technology on a royalty-free and perpetual basis for the purpose of X Robotics improving its technology, products, and services. To the extent required by law, this includes any data derived from Customer's use of the Robots and other services. X Robotics will not share any of that data with third parties that are not involved in helping X Robotics improve its own products and services in a way that could identify Customer.
2.8 Injunctive relief. Customer recognizes that monetary damages would not be an adequate remedy for a violation of this section and agrees that X Robotics is entitled to preliminary and permanent injunctive relief to enforce this section.
3. Warranty and Indemnity
3.1 X Robotics warrants that the services provided, including any Robots, will perform materially as described in the technical specifications and documentation provided to Customer by X Robotics. X Robotics will provide repair and troubleshooting for the Robots as part of its services as provided in Exhibit A throughout the term of this agreement.
3.2 X Robotics liability to Customer will be limited to the price paid under this agreement by Customer. X Robotics will not be liable for any loss of profit, direct losses, indirect losses, special damages, incidental damages, consequential damages, punitive damages, or general damages associated with any failure of the Robots or arising out of or related to this agreement.
3.3 X Robotics will not be responsible for any misuse of the Robots or services by Customer and any damages related to that misuse, even is that misuse is reasonably foreseeable.
4.1 X Robotics will provide training on the operation of the Robots as the Customer may reasonably request.
4.2 The parties will negotiate in good faith regarding the time and place of such training.
5. Term and Termination.
5.1 The obligations of each party will continue for a period of 5 years from the date of this agreement or such earlier date as may be agreed by the parties in writing; provided that all obligations hereunder relating to X Robotics Confidential Information constituting a trade secret will continue for so long as it remains a trade secret under applicable law. Termination of this agreement will not affect any accrued rights or remedies to which either party is entitled.
5.2 The parties may also terminate this agreement upon 60-days' written notice. If Customer terminates this agreement under this provision, X Robotics will no longer be obligated to provide Delivery of the Robots and Customer will not be entitled to a refund based on Delivery failure.
5.3 This agreement will also terminate upon material breach by one of the parties. If a party believes that the other is in material breach, it must provide the party in breach notice that it is in breach and 15 days to cure the breach, if possible. If the breach has not been cured by that time, the party that provided notice can terminate this agreement without any penalty. If Customer terminates the agreement under this provision, it will not be entitled to a return of the deposit unless the termination is for failure of Delivery.
6. Entire Agreement and Variation.
6.1 Entire Agreement. This agreement constitutes the entire agreement between the parties regarding its subject matter.
6.2 Variations. No variation of this agreement will be effective unless it is in writing and agreed to by both of the parties or their authorized representatives.
6.3 Provisional Agreement. This agreement is provisional and will be amended by additional terms provided by X Robotics before Delivery, acceptance of those terms is a condition precedent of X Robotics's obligation to deliver the Robots. Any failure of Delivery by X Robotics because of the failure of the parties to reach additional terms will not be grounds for the return of any deposit paid by Customer. If the parties do not agree on the additional terms referenced here, then this agreement will terminate with no grounds for the return of any deposit paid by Customer.
7. No Waiver.
7.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law will not constitute a waiver of that or any other right or remedy, nor will it preclude or restrict any further exercise of that or any other right or remedy.
7.2 No single partial exercise of any right or remedy provided under this agreement or by law will preclude or restrict the further exercise of that or any other right or remedy.
8. Assignment. Except as otherwise provided in this agreement, no party may assign, sub-contract or deal in any way with, any of its rights or obligations under this agreement or any document referred to in it.
9. Severability. To the extent permitted by law, the parties hereby waive any provision of law that would render any clause of this agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this agreement is held to be invalid, that provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions of this agreement will continue in full force and effect.
10. Governing Law and Jurisdiction
10.1 Choice of law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractional disputes or claims) will be governed by and construed in accordance with the laws of the United States of America and the state of California, without regard to choice-of-law principles.
10.2 For matters where one of the parties is based or incorporated outside the United States. When one of the parties is based or incorporated outside the United States, the parties irrevocably agree that any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) will be submitted to arbitration to an Arbitration Tribunal under the Rules of Arbitration of the International Chamber of Commerce ("ICC"). Each party to the dispute will each nominate one arbitrator, who will be confirmed by the Court of Arbitration of the International Chamber of Commerce. If one party fails to nominate an arbitrator within 4 weeks after the institution of the arbitration proceedings, the Court of Arbitration will nominate that arbitrator. An additional arbitrator will be appointed jointly by the arbitrators already appointed by the parties to the dispute, or, failing such appointment within 4 weeks after the appointment of the arbitrators by the parties, by the Court of Arbitration. The arbitrators must be experts in international business transactions. The language of the arbitration proceedings will be in English, and documents may be produced in the English language and testimony may be taken in the English language without an interpreter. The Arbitration Tribunal must decide in the award which party has to bear the costs of the arbitration (or in what proportions the costs will be borne by the parties) including the fees of counsel having assisted the Parties. The place of the arbitration will be Paris, France. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the tribunal may be entered by any court having jurisdiction thereof.
10.3 For matters where both parties are based or incorporated in the United States. When the parties are both based or incorporated in the United States, the parties agree to submit the matter to arbitration with the International Institute for Conflict Prevention and Resolution ("CPR") Rules for Administered Arbitration (the "Administered Rules" or "Rules") by a sole arbitrator using streamlined procedures in San Francisco, California. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
10.4 Any notice required by this agreement can be provided by sending it via registered or certified mail to the addresses found in the section defining the parties to this agreement.
11. Execution in counterparts. This agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
12. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this agreement to the extent caused by acts of ware, terrorism, hurricanes, earthquakes, pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
13. Moving Robots and Technology Export. Customer will not move the Robots to a new address without the express written permission of X Robotics. Without limiting the foregoing, Customer will not (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export the Robots or otherwise remove them from the United States except in compliance with all applicable U.S. laws and regulations.
14. Independent Contractors. The parties are independent contracts and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. The parties agree that no X Robotics employee or contractor will be an employee of Customer. X Robotics will be reasonable for all employment rights and benefits of X Robotics employees, including without limitation: (a) federal, state, and local income and employment taxes and social security contributions; (b) workers' compensation, health benefits, vacation pay, holiday pay, profit sharing, retirement, pension, disability benefits, and other health and welfare benefits, planes, or programs; and (c) insurance.
15. Authority to bind. If the person or individual who accepts this agreement or pays the invoice connected with or provided with this agreement does so or uses the Robots on behalf, as an employee, or agent of another person or entity, including a corporation or other non-natural person, that person or individual represents and acknowledges that they have the authority to bind that person or entity to this agreement and that Customer, as used herein, includes that person or entity, who will be bound by this agreement.
16. Definitions and Interpretation. The following definitions and rules of interpretation in this clause apply in this agreement:
16.1 Computer System: Any computer or computing device, set of computers or computing devices, network of computers or computing devices, whether those computers or computing devices are implemented in hardware, software, or firmware.
16.2 Delivery: The physical arrival of the Robots that provide the robot services to the address or location provided by the Customer.
16.3 Group: in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company.
16.4 Representative: employees, agents, and other representatives of Customer.
16.5 Robots: devices, machines, and related technology, including hardware, software, and algorithms.
16.6 The parties agree that the terms of this agreement result from negotiations between them. This agreement will not be construed in favor of or against either party by reason of authorship.
16.7 For any term, it will include the singular or the plural or the feminine or the masculine depending on the circumstances.
Effective as of November 10, 2020