This Agreement (“Agreement") is entered into between you and DaisyBot, LLC, a Colorado limited liability company, with principal offices at 345 Bates Avenue, Boulder, Colorado 80305 (“DaisyBot”).
You wish to have DaisyBot provide you with application testing services as further described in this Agreement, and DaisyBot is willing to provide the services according to the terms and subject to the conditions of this Agreement. If you will be using the services described in this Agreement on behalf of an organization, you agree to the terms of this Agreement on behalf of that organization, and you represent that you have the authority to bind your organization to this Agreement. In such case, “you” and “your” as used in this Agreement refer to that organization.
In consideration of our mutual intentions and promises, you and DaisyBot agree as follows:
DaisyBot agrees to test your software application (the “App”) to evaluate the efficiency, speed, functionality and performance of the App and to provide a written report (the “Report”) of the results of our evaluation (the “Services”). DaisyBot will perform the Services upon the date You agree to it (by electronically indicating acceptance) (the “Effective Date”) and continues so long as You use the Service or until terminated by DaisyBot.
COMPENSATION & PAYMENT
You agree to pay the fees assessed by DaisyBot to You for providing the Service. These fees will be calculated pursuant to the Fee Schedule linked to here: https://www.daisybot.com/pricing/. We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to You.
CONFIDENTIAL INFORMATION, LICENSES & PROPRIETARY RIGHTS.
“Confidential Information” includes this Agreement, and all trade secrets, business and financial information, software, business methods, procedures, know-how, and other information of every kind that relates to the business of either party and is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. Confidential Information does not include information that (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) is disclosed to the receiving party by a third party without restrictions on disclosure, or (c) was in the receiving party’s lawful possession prior to the disclosure and was not obtained either directly or indirectly from the divulging party. Each party will: (i) not use the other’s Confidential Information for any purpose not expressly permitted by this Agreement; (ii) disclose the other’s Confidential Information only to its employees, subcontractors, and/or agents who have a need to know such Confidential Information for purposes of this Agreement; and (iii) protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as that party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. However, you and DaisyBot acknowledge that (x) nothing in this Agreement shall be construed to prohibit a party’s disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, that such party shall give prompt notice to the other of such disclosure. Each of you and DaisyBot agree that all Confidential Information disclosed by the other under this Agreement is the sole and exclusive property of the disclosing party.
You hereby grant to DaisyBot a limited right and license to the App, solely for the purpose of performing the Services. You are solely responsible for obtaining all rights required to license and use the App as contemplated by this Agreement.
DaisyBot agrees that the App and the Report are your exclusive property. The Report does not include: DaisyBot’s trade secrets, business and financial information, software, processes, business methods, procedures, know-how and other information of every kind that relates to the business of DaisyBot, including but not limited to methods, tools and formulas used to provide the Services or improvements thereto derived from providing the Services that generate the Report (the “DaisyBot IP”). You agree that the DaisyBot IP is the sole and exclusive property of DaisyBot.
DaisyBot represents and warrants that the Services shall be performed in a professional manner.
You represent and warrant that (a) your entering into this Agreement and your performance of your obligations hereunder do not and will not conflict with or result in any breach or default under any other agreement to which you are subject; (b) you have the right to provide the App to DaisyBot; (c) neither the App nor any of its elements infringe upon or misappropriate any copyright, patent, trademark, trade secret, right of publicity or privacy, or any other proprietary right of any person and (d) the App is and will remain free from any harmful software, hardware or other technologies, specifically including (but not limited to) any malware, spyware, virus, bug, ‘Trojan Horse,’ worm, backdoor or other malicious computer code, any time bomb or drop dead device.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES TO BE PURCHASED UNDER THIS AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT.
MODIFICATION OF TERMS OF SERVICE
DaisyBot reserves the right, acting in its sole discretion, to modify or replace any of the Terms of Service, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending an email to You. DaisyBot may also impose limits on certain features and Services or restrict Your access to parts or all of the Service without notice or liability. You are responsible to check these Terms of Service periodically for changes, and Your continued use of the Service after the posting of any changes to the Terms of Service constitutes acceptance of those changes.
You may terminate this Agreement by sending email to email@example.com. We may terminate this Agreement and close Your Account at any time for any reason stipulated explicitly or implicitly in these Terms of Service.
You agree to indemnify, defend and hold DaisyBot harmless from and against any and all loss, claims, expenses (including reasonable attorneys’ fees and expenses), damages, settlements or other liabilities resulting from or arising out of any actual, alleged or threatened third party claims relating to any breach of your representations and warranties in this Agreement.
LIMITATION OF LIABILITY
EXCEPT FOR BREACHES OF SECTION 3 (CONFIDENTIAL INFORMATION), OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), AND YOUR BREACH OF SECTION 4.2(d) (HARMFUL TECHNOLOGY), NEITHER PARTY WILL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN IF IT HAS NOTICE THAT THOSE KINDS OF DAMAGES MAY OCCUR. EXCEPT FOR YOUR BREACH OF SECTION 4.2(d) (HARMFUL TECHNOLOGY) AND EITHER PARTY’S OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY YOU TO DAISYBOT DURING THE PRECEDING 12 MONTHS.
Force Majeure. Neither Party shall be liable for its failure to perform any of its obligations hereunder during any period in which performance is delayed by fire, flood, war, embargo, riot, acts of terrorism, pestilence, or an unforeseeable intervention or act of any government authority that causes complete business interruption (“Force Majeure”), provided that the party suffering such delay did not cause such Force Majeure event; immediately notifies the other party of the delay, and uses all commercially reasonable efforts to mitigate its effects, including developing an immediate action plan to continue performance of its obligations under this Agreement.
Assignment. Either party may assign this Agreement or any of its rights or obligations under this Agreement by providing notice to the other party.
Governing Law; Alternative Dispute. This Agreement shall be construed in accordance with shall be governed by, the laws of the State of Colorado without regard to conflicts of law provisions.
Each party shall pay its own expenses in connection with the resolution of any disputes, including attorneys’ fees.
IN THE EVENT OF ANY JUDICIAL PROCEEDINGS, WE BOTH KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO COUNSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. In the event of any lawsuit between us arising out of or related to this Agreement, we agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.