BY ACCEPTING THESE TERMS, BY (1) CLICKING A BOX OR BUTTON INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR (3) USING A FREE PRODUCT, YOU AGREE TO THESE TERMS. IF YOU REGISTER FOR CROWDBOTICS’ FREE PRODUCT, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE PRODUCT. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “YOU” REFERS TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE PLATFORM.
Subject to the terms and conditions of these Terms, Crowdbotics grants you during the Term (defined below) a limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the Crowdbotics website, software development platform, engineering workforce and module library (collectively, the “Platform
”) for the purpose of managing, hosting, developing, launching, and analyzing your proprietary software applications (“Apps
2. Professional Services
Subject to the terms and conditions of these Terms, Crowdbotics will perform the professional engineering, design, or product management services set forth on an Order Form or as otherwise requested through the Platform, which may include managed use of the Platform by Crowdbotics on your behalf (“Services
”). The manner and means by which Crowdbotics chooses to complete the Services are in Crowdbotics’ sole discretion and control. Crowdbotics’ obligations to provide the Services are conditioned upon receiving such information and cooperation from you as may be reasonably necessary to perform the Services. 3. Restrictions.
The rights granted to you in these Terms are subject to the following restrictions: (a) you may not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform, whether in whole or in part, or any content displayed on the Platform; (b) you may not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform; and (c) except as expressly stated herein, no part of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Platform is subject to these Terms. Unless otherwise specified on the Platform, all copyright and other proprietary notices on the Platform (or on any content displayed on the Platform) must be retained on all copies thereof.
4. Your Responsibilities
You will (a) be responsible for your authorized users’ (“Users
”) compliance with these Terms and Order Forms, (b) be responsible for the accuracy, quality and legality of User Content (defined below), (c) be responsible for your use of your Apps (including any Invention and any Prior Invention or Reusable Module (each defined below) incorporated into an Invention) and the interoperation of your App with any third party application, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Platform, and notify Crowdbotics promptly of any such unauthorized access or use, and (e) use the Platform and Services only in accordance with these Terms and applicable laws and government regulations. Any use of the Platform in breach of the foregoing by you or Users that in Crowdbotics’ judgment threatens the security, integrity or availability of Crowdbotics’ services, may result in Crowdbotics’ immediate suspension of the Platform, however Crowdbotics will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension.
. In order to use certain features of the Platform, you must register for an account (“Account
”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Platform. Crowdbotics may suspend or terminate your Account in accordance with Section 9.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Crowdbotics of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Crowdbotics cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
6. User Content. a
. “User Content
” means any and all information and content that you submit to the Platform (e.g., Materials (defined below) that you submit to the Platform). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You represent and warrant that your User Content does not violate Crowdbotics’ Acceptable Use Policy (set forth below). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Crowdbotics. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.
. a. Platform
. Crowdbotics retains all rights in the Platform, except as expressly set forth in these Terms.
. You own your Apps, subject to the terms and conditions of these Terms.
All rights in and to any copyrightable software, algorithm, code, material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets (“Materials
”) conceived, discovered, authored, invented, developed or reduced to practice by Crowdbotics, solely or in collaboration with others, during the Term and arising out of, or in connection with, performing the Services under these Terms and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (collectively, but excluding Prior Inventions and Reusable Modules “Inventions
”), are your sole property. Crowdbotics will promptly disclose any Invention to you in writing and will deliver and assign (or cause to be assigned) and hereby assigns fully to you all right, title and interest in and to the Inventions. Crowdbotics will reasonably assist you to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Notwithstanding the foregoing, Crowdbotics reserves the right to use and re-use any generalized knowledge it gains arising from the performance of Services in its business without liability to you.
d. Prior Inventions
. If, in the course of performing Services, Crowdbotics incorporates into any Invention or uses any pre-existing Materials owned by Crowdbotics or in which Crowdbotics has an interest (“Prior Inventions
”), then Crowdbotics grants you a non-exclusive, royalty-free, perpetual, irrevocable, transferable, worldwide, sublicenseable license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions solely as incorporated into Inventions.
e. Reusable Modules
. Any open-source components Crowdbotics uses in performing the Services, whether pre-existing or created by Crowdbotics (“Reusable Modules
”) are licensed to you pursuant to the terms of the applicable open source license. For clarity, and notwithstanding anything to the contrary in these Terms, Crowdbotics may develop new Reusable Modules based on your requests in connection with the Services. Crowdbotics will not incorporate any of your User Content into a Reusable Module without your prior consent. 8. Relationship of Parties.
Crowdbotics and you are independent contractors. You understand that Crowdbotics is not an employee, and that the performance of Services requires a collaborative, professional relationship of equals where mutual professional respect, courtesy and consideration are expected. Due to the virtual nature of the relationship, you understand the importance of communication, and agree to respond to questions, requests and communications from Crowdbotics in a timely manner. You understand that Crowdbotics is a business with other clients, and requires fair, realistic notice in order to attend to requests and projects. You understand that Crowdbotics may require detailed clarification of tasks in order to meet expectations and provide the best support and highest quality work, and agrees to provide specifications at the level of detail required by Crowdbotics.
9. Term; Termination
The term of these Terms begins on the date you accept these Terms and continues until all subscriptions have expired or been terminated, unless otherwise set forth on an Order Form (the “Term
”). Unless otherwise specified on an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term, by cancelling the user’s subscription via the Crowdbotics web product.
b. Effect of Termination
. Upon termination of these Terms, your right to use the Platform will immediately cease and any fees you owe to Crowdbotics will become immediately due. Sections 3, 4, 7, 8b, 10 – 14, 15.b, and 16 – 23 will survive any termination or expiration of these Terms. Crowdbotics may delete any User Content hosted on the Platform.
. The fees for the Platform and any Services are as set forth on the Order Form, or, if you do not have an Order Form, the Platform. You will provide Crowdbotics with valid and updated credit card information, and you authorize Crowdbotics to charge such credit card for the fees for the initial subscription term, hourly or milestone-based service fees, any renewal subscription term, in advance, in accordance with the billing frequency set forth on the Order Form, or if there is no Order Form, the Platform. Subscriptions, hourly fees, and milestone-based fees are non-refundable once hours are worked and charged (for hourly fees) or when milestones are funded for work (for milestone fees).
11. No Support or Maintenance
Unless you have a subscription that provides for support, you acknowledge and agree that Crowdbotics will have no obligation to provide you with any support or maintenance in connection with the Platform except as part of the Services.
12. Acceptable Use Policy.
The following terms constitute Crowdbotics’ “Acceptable Use Policy
You will not use the Platform to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
In addition, you will not: (i) upload, transmit, or distribute to or through the Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Platform unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Platform to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Platform, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Platform (or to other computer systems or networks connected to or used together with the Platform), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Platform; or (vi) use software or automated agents or scripts to produce multiple accounts on the Platform, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Platform (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate this Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities.
13. Feedback; Name
If you provide Crowdbotics with any feedback or suggestions regarding the Platform or Services (“Feedback
”), then you grant Crowdbotics a perpetual, irrevocable, non-exclusive, transferable, sublicensable, worldwide license to use such Feedback in any manner it deems appropriate. Crowdbotics will treat any Feedback as non-confidential and non-proprietary. Unless you provide Crowdbotics with an opt-out notice, you grant Crowdbotics a right to use your name, logo, and application screenshots in Crowdbotics’ marketing materials. Any such opt-out notice will not apply to use by Crowdbotics in accordance with this Section prior to Crowdbotics’ receipt of notice.
14. Representations and Warranties.
You represent and warrant that you have the full right and authority to enter into and perform these Terms, and that entering into these Terms does not violate any outstanding assignments, grants, licenses, encumbrances, obligations, agreements or understanding to which you are a party. Crowdbotics warrants that during an applicable subscription term Crowdbotics will not materially decrease the overall functionality of the Platform. For any breach of that warranty, your exclusive remedies are those described in Section 9.
15. Free Services. a.
Crowdbotics may make certain parts of the Platform available for free (“Free Products
”). Use of Free Products is subject to the terms and conditions of these Terms. In the event of a conflict between this section and any other portion of these Terms, this section controls. Free Products are provided to you without charge as described on the Platform. You agree that Crowdbotics, in its sole discretion and for any or no reason, may terminate your access to the Free Products or any part thereof, with or without prior notice. Crowdbotics will not be liable to you or any third party for such termination. You are solely responsible for exporting your User Content and any Apps from the Free Products prior to termination of your access to the Free Products for any reason, provided that if Crowdbotics terminates your account, except as required by law, Crowdbotics will provide you a reasonable opportunity to retrieve your Apps.
NOTWITHSTANDING SECTIONS 14, 16, AND 18.b, THE FREE PRODUCTS ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY, AND CROWDBOTICS HAS NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE PRODUCTS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE CROWDBOTICS’ LIABILITY WITH RESPECT TO THE FREE PRODUCTS WILL NOT EXCEED US$100. WITHOUT LIMITING THE FOREGOING, CROWDBOTICS AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR USE OF THE FREE PRODUCTS WILL MEET YOUR REQUIREMENTS, (II) YOUR USE OF THE FREE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (III) ANY DATA PROVIDED THROUGH THE FREE PRODUCTS WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 17, YOU ARE FULLY LIABLE UNDER THESE TERMS TO CROWDBOTICS FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE PRODUCTS, ANY BREACH BY YOU OF THESE TERMS AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
17. Limitation of Liability. a.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL CROWDBOTICS (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE PLATFORM OR SERVICES, EVEN IF CROWDBOTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE PLATFORM AND SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY, CROWDBOTICS’ LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE FEES YOU HAVE PAID CROWDBOTICS IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY AND (II) US$50. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
18. Indemnificationa. By You
. To The fullest extent permitted by law, you will indemnify Crowdbotics
from and against any and all liabilities, suits, losses, damages and judgments, costs and expenses (including reasonable outside counsel's fees and expenses) in connection with (i) your use of the Platform or Services in a manner not authorized under these Terms, (ii) any other breach of these Terms by you, and (iii) your use of Prior Inventions or Reusable Modules in a manner not authorized under these Terms.
b. By Crowdbotics
. Unless you are using a Free Product, Crowdbotics will indemnify and defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the Platform or any Prior Invention infringes or misappropriates such third party’s intellectual property rights (an “IP Claim
”), provided that you (i) promptly give Crowdbotics written notice of the IP Claim, (ii) give Crowdbotics sole control of the defense and settlement of the IP Claim, and (iii) give Crowdbotics all reasonable assistance, at Crowdbotics’ expense. The foregoing obligations do not apply if (1) the allegation does not state with specificity that the Platform or a Prior Invention are the basis of the IP Claim; (2) an IP Claim arises from the use or combination of the Platform or Prior Invention (other than as incorporated into an Invention) with software, hardware, data, or processes not provided by Crowdbotics, if the Platform, Prior Invention or use thereof would not infringe without such combination; (3) an IP Claim arises from Services for which there is no charge; or (4) an IP Claim arises from User Content or your breach of these Terms. If Crowdbotics believes an infringement or misappropriation claim related to the Platform or a Prior Invention is likely, then Crowdbotics may: (A) modify the Platform or Prior Invention to be non-infringing, (B) obtain a license for your continued use of the Platform or Prior Invention, or (C) terminate your subscription for the Platform upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions.
19. Confidentiality. a. Definition
. “Confidential Information
” means all information disclosed by a party (“Disclosing Party
”) to the other party (“Receiving Party
”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Crowdbotics’ Confidential Information includes the Platform and any Prior Inventions, and the terms and conditions of all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
b. Non-Use and Non-Disclosure
. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in these Terms. Neither party will disclose the terms of these Terms or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent.
c. Compelled Disclosure
. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
20. Electronic Communications
By using the Platform, you consent to receiving electronic communications from Crowdbotics (either by posting notices on the Platform or via email). You agree that any notices Crowdbotics is required to provide you may be provided electronically.
The Platform and any Inventions, Prior Inventions and Reusable Modules may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Crowdbotics, or any products utilizing such data, in violation of the United States export laws or regulations.
. a. We Both Agree To Arbitrate.
You and Crowdbotics agree to resolve any claims relating to these Terms, the Platform or any Services through final and binding arbitration by a single arbitrator, except as set forth under Section 22.e. This includes disputes arising out of or relating to interpretation or application of this “Arbitration” section, including its enforceability, revocability, or validity.
b. Informal Resolution
. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party. If a dispute is not resolved within thirty days of notice, either party may bring a formal proceeding.
. The American Arbitration Association
(AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.
d. Exception to Arbitration
. Either Party may bring a lawsuit in the federal or state courts of Alameda County, California solely for injunctive relief to stop unauthorized use or abuse of the Platform or infringement of intellectual property rights without first engaging in the informal dispute notice process described above. Both you and Crowdbotics consent to venue and personal jurisdiction there.
e. NO CLASS ACTIONS
. You may only resolve disputes with Crowdbotics on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. If any term or provision of these Terms is determined to be illegal or invalid, such illegality or invalidity will not affect the validity of the remainder of these Terms. These Terms are governed by California law. These Terms, which include any Order Form, are the entire agreement between the parties hereto with respect to the subject matter hereof. Neither party may assign these Terms without the other party’s consent, except that Crowdbotics may assign these Terms without consent in connection with any merger where Crowdbotics is not the surviving entity, reorganization, or sale of all or substantially all of its assets. These Terms will be binding upon each party’s successors and permitted assigns.