GENERAL TERMS AND CONDITIONS FOR ROBOSUITE (“GTC”)
Effective starting: January 31, 2020
Capitalized terms used in this document are defined in the Glossary.
- USAGE RIGHTS AND RESTRICTIONS
2.1 Grant of Rights.
(a) Subject to these GTC, Reveal grants to Customer a non-exclusive, non-transferable world-wide right to use RoboSuite (including its implementation and configuration), RoboSuite Materials (as applicable), Reveal Content and Documentation solely for Customer’s and its Affiliates’ business operations during the Subscription Term on payment of the Subscription Charges. Permitted uses and restrictions of RoboSuite also apply to RoboSuite Materials and Documentation.
(b) Reveal further grants to Customer solely during the Subscription Term, the right to download and use the Learning Resources or portions thereof with the express obligation that Customer remove and return or destroy all Learning Resources upon expiration or termination of the Subscription Term; Reveal may audit Customer’ compliance with this post-Subscription Term obligation once annually for the two years following expiration or termination of the Agreement. Further, Reveal grants to Customer solely during the Subscription Term, the right to use the Reveal Content.
2.2 Authorized Users.
Customer may permit Authorized Users to use RoboSuite. Usage is limited to the Usage Metrics stated in the Order Form. Access credentials for RoboSuite may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use RoboSuite. Customer is responsible for any loss or damage arising from breaches of the Agreement caused by the number of Authorized Users being exceeded.
2.3 Acceptable Use Policy.
With respect to RoboSuite, Customer must not:
(a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
(b) transmit any content or data that is unlawful or infringes any intellectual property rights, or
(c) circumvent or endanger its operation or security.
(d) use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
2.4 Verification of Use.
Customer will monitor its own use of RoboSuite and report any use in excess of the Usage Metrics and volume. Reveal may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
2.5 Suspension of RoboSuite.
Reveal may suspend or limit use of RoboSuite if continued use may result in harm to RoboSuite or its users. Reveal will promptly notify Customer of the suspension or limitation. Reveal will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
2.6 Third Party Web Services.
RoboSuite may include integrations with web services made available by third parties (other than Reveal’s Affiliates) that are accessed through RoboSuite and subject to terms and conditions with those third parties. These third party web services are not part of RoboSuite and the Agreement does not apply to them.
2.7 Mobile Access to RoboSuite.
If applicable, Authorized Users may access certain RoboSuite through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
2.8 On-Premise Components.
RoboSuite may include on-premise components that can be downloaded and installed (including updates) by Customer. The System Availability SLA does not apply to these components.
2.9 Third-Party Application.
If Customer installs or enables a third-party application for use with RoboSuite, Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants Reveal permission to allow the provider of that third-party application to access Customer Data as required for the interoperation of the third-party application and RoboSuite.
2.10 Free Trials.
Should Customer agree to the Agreement as part of a free trial, then this section 2.10 shall apply. When Customer first agrees to these terms, Reveal allows for a free trial of up to thirty (30) days (“Free Trial Period”) of RoboSuite for no more than one (1) Authorized User to use RoboSuite on behalf of Customer with no payment obligation and no obligation of continued subscription past the Free Trial Period. Reveal shall have the right to immediately suspend RoboSuite upon expiration of Customer’s Free Trial Period. To avoid any such interruption of RoboSuite, Customer may elect to continue using RoboSuite after its Free Trial Period by accepting Reveal’s written Order Form, which will set forth RoboSuite, the Subscription Term, the number of Users, pricing, fees, and reference to these GTC. Customer acknowledges and agrees that these GTC will govern Customer’s use of RoboSuite during a Free Trial Period and any paid Subscription Term for which Customer accepts an Order Form. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO ROBOSUITE DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME ROBOSUITE AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT CUSTOMER DATA WILL BE PERMANENTLY LOST.
- REVEAL RESPONSIBILITIES
Reveal provides access to RoboSuite as described in the Agreement. Reveal reserves the right to modify the feature offerings at any time.
Reveal, at no additional charge, provides standard support as detailed on the RoboSuite Site and upgraded support if purchased and referenced in the Order Form.
Reveal uses reasonable security technologies in providing RoboSuite. As a data processor, Reveal will implement technical and organizational measures referenced in the Order Form to secure personal data processed in RoboSuite in accordance with applicable data protection law.
(a) RoboSuite and Reveal Policies may be modified by Reveal. Reveal will inform Customer of modifications by email, the support portal, release notes, Documentation or RoboSuite. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for RoboSuite, which Customer may use subject to the then-current Supplement and Documentation.
(b) If Customer establishes that a modification is not solely an enhancement and materially reduces RoboSuite functionality, Customer may terminate its subscriptions to the affected RoboSuite Service by providing written notice to Reveal within thirty days after receipt of Reveal’s informational notice.
Reveal may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of RoboSuite and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as RoboSuite Materials.
Unless otherwise agreed, personal data contained in Customer Data is only used to provide RoboSuite and Consulting Services. Analyses may be used for the following purposes:
- a) product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new Reveal products and services,
- b) improving resource allocation and support,
- c) internal demand planning,
- d) training and developing machine learning algorithms,
- e) improving product performance,
- f) verification of security and data integrity
- g) identification of industry trends and developments, creation of indices and anonymous benchmarking
- CUSTOMER AND PERSONAL DATA
4.1 Customer Data.
Customer is responsible for the Customer Data and entering it into RoboSuite. Customer grants to Reveal a nonexclusive right to process Customer Data to provide and support RoboSuite.
4.2 Personal Data.
Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
Customer will maintain reasonable security standards for its Authorized Users’ use of RoboSuite. Customer will not conduct or authorize penetration tests of RoboSuite without prior written approval from Reveal which approval may be denied or subject to limitations and conditions at Reveal’s absolute discretion.
4.4 Access to Customer Data.
(a) During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Reveal and Customer will find a reasonable method to allow Customer access to Customer Data.
(b) Before the Subscription Term expires, if available, Customer may use Reveal’s self-service export tools (as available) to perform a final export of Customer Data from RoboSuite. Alternatively, Customer may request data export through support ticket.
(c) At the end of the Agreement, Reveal will delete the Customer Data remaining on servers hosting RoboSuite unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
(d) In the event of third party legal proceedings relating to the Customer Data, Reveal will cooperate with Customer and comply with applicable law with respect to handling of the Customer Data.
- CONSULTING SERVICES
If applicable, Reveal will provide the Consulting Services, as mutually agreed by Customer and Reveal under a Statement of Work (“SOW”) or Order Form; such SOW(s) or Order Forms(s) shall be subject to the terms of (i) the GTC and (ii) the Reveal Consulting Services Terms and Conditions to the GTC available in Exhibit B (“Consulting Services Terms”). The defined term “Consulting Services” under the Consulting Services Terms shall mean solely those services set forth in the SOW or Order Form. In the event of conflict, the terms of the SOW or Order Form shall take precedence over the terms of the Consulting Services Terms, which in turn shall take precedence over the terms of the GTC.
- BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Payment and Billing.
All Subscription Charges as detailed on an Order Form are due in full upon commencement of the Subscription Term, or unless otherwise expressly set forth in this Agreement, an Order Form, a Statement of Work, or as otherwise agreed for Usage Charges. Customer is responsible for providing valid and current Account information and agrees to promptly update Account information, including payment information, with any changes that may occur (for example, a change in Customer billing address or credit card expiration date). If Customer fails to pay Subscription Charges or other charges indicated on any Order Form within five (5) business days of Reveal’s notice to Customer that payment is delinquent, or if Customer does not update payment information upon request, in addition to other remedies, Reveal may suspend or terminate access to and use of RoboSuite without further notice to Customer.
If Customer chooses to upgrade its Service Plan or increase the number of Authorized Users to RoboSuite during it Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Subscription Charges will reflect any such upgrades or increases.
Customer may not downgrade its Service Plan or reduce the number of Authorized Users under any Service Plan during its Subscription Term. If Customer desires to downgrade its Service Plan or reduce the number of Authorized Users under any Service Plan for a subsequent Subscription Term, Customer must provide Reveal with thirty (30) days advance written notice prior to the end of the then current Subscription Term. Downgrading a Service Plan may cause loss of content, features, or capacity of RoboSuite as available, and Reveal does not accept any liability for such loss.
6.4 Excess Use
Customer’s use of RoboSuite is subject to the Agreement, including the Service Plan, Usage Metrics and their volume stated in the Order Form. Any use of RoboSuite that exceeds this scope will be subject to additional fees. Fees accrue from the date the excess use began. Reveal may invoice and Customer will pay for excess use based on applicable pricing in the Order Form. Customer will execute an additional Order Form to document subscriptions for additional Usage Metrics and their volume.
Unless otherwise stated, charges do not include any Taxes. Customer is responsible for all Taxes. Customer must provide to Reveal any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. Reveal will invoice Customer for such Taxes if Reveal believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
6.6 Payment Agent.
If Customer pays by credit card or certain other payment instruments, an interface is provided to change credit card information (e.g. upon card renewal). Payments made by credit card, debit card or certain other payment instruments for RoboSuite are billed and processed by Reveal’s Payment Agent. Customer hereby authorizes the Payment Agent to bill Customer credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for RoboSuite for which Customer subscribes until the Subscription Term terminates, and Customer further agrees to pay any Subscription Charges so incurred. If applicable, Customer hereby authorizes Reveal and the Payment Agent to charge Customer credit card or other payment instrument to establish prepaid credit. Customer will receive a receipt upon each acceptance of payment by the Payment Agent, . The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Customer billing information except to process Customer credit card information for the Payment Agent.
6.7 Payment Portals.
If Customer mandates Reveal use a vendor payment portal or compliance portal which charges Reveal a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Customer shall be invoiced by Reveal for, and Customer is obligated to pay, the cost of this fee.
6.8 Promotional Credits.
Any promotional credits issued hereunder will be subject to the Reveal Promotional Credits Policy.
- PERSONAL DATA
Personal Data Processing Agreement for RoboSuite (“DPA”) available at [insert link here]shall apply to Personal Data (as defined under DPA) processed by Reveal and its Subprocessors (as defined under DPA) in connection with its provision of RoboSuite. Each reference to Reveal Group IPA Inc., or Reveal Group Holdings Inc. in the DPA shall be deemed to mean Reveal for purpose of the Order Form between Reveal and Customer.
- TERM, CANCELLATION AND TERMINATION
Unless subscription to RoboSuite is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an Order Form, Customer’s RoboSuite subscription will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Customer subscription for any such subsequent Subscription Term shall be at Reveal’s standard Subscription Charges for the Service Plan to which Customer has subscribed or which Customer has deployed, as applicable, as of the time such subsequent Subscription Term commences.
A party may terminate the Agreement:
(a) upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty-day period,
(b) as permitted under Sections 3.4(b), 9.3(b), or 10.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or
(c) otherwise materially breaches Sections 13 or 14.6.
8.3 Payment Upon Termination.
Except for Customer termination under Section 8.2(a), if Customer terminates a RoboSuite subscription prior to the end of its then effective Subscription Term, or if Reveal terminates or cancels a Customer RoboSuite subscription pursuant to Section 8.2(a), in addition to any other amounts Customer may owe Reveal, Customer must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.
8.4 No Refunds.
Except for Customer’s termination rights under Section 8.2(a), if Customers elects to terminate its RoboSuite subscription prior to the end of its then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to Customer.
8.5 Export of Customer Data.
For thirty (30) days after the effective date of termination or expiration of this Agreement, upon Customer request, Reveal will make Customer Data available to Customer for export or download as provided in Documentation. Thereafter, Reveal will have no obligation to maintain or provide any Customer Data, and, as provided in Documentation, Reveal will, unless prohibited by law or legal order, delete Customer Data in RoboSuite in accordance with Reveal’s Policies.
Sections 1, 6, 8.3, 8.4, 8.5, 10, 11, 12, 13, and 14 will survive the expiration or termination of the Agreement.
9.1 Compliance with Law.
Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
(a) in the case of Reveal, the operation of Reveal’s business as it relates to RoboSuite, and
(b) in the case of Customer, the Customer Data and Customer’s use of RoboSuite.
9.2 Good Industry Practices.
Reveal warrants that it will provide RoboSuite:
(a) in substantial conformance with the Documentation; and
(b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of RoboSuite.
Customer’s sole and exclusive remedies and Reveal’s entire liability for breach of the warranty under Section 9.2 will be:
(a) the re-performance of the deficient RoboSuite Service, and
(b) if Reveal fails to re-perform, Customer may terminate its subscription for the affected RoboSuite Service. Any termination must occur within three months of Reveal’s failure to re-perform.
9.4 Warranty Exclusions.
The warranties in Section 9.2 will not apply if:
(a) RoboSuite is not used in accordance with the Agreement or Documentation,
(b) any non-conformity is caused by Customer, or by any product or service not provided by Reveal, or
(c) The Customer’s access to RoboSuite was provided for no fee.
Except as expressly provided in the Agreement otherwise, neither Reveal nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Reveal or product roadmaps in subscribing for any RoboSuite Service.
- THIRD PARTY CLAIMS
10.1 Claims Brought Against Customer.
(a) Reveal will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of RoboSuite infringes or misappropriates a patent claim, copyright, or trade secret right. Reveal will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Reveal enters into) with respect to these claims.
(b) Reveal’s obligations under Section 10.1 will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of RoboSuite in conjunction with any product or service not provided by Reveal, or (iii) the Customer’s access to RoboSuite was provided for no fee.
(c) In the event a claim is made or likely to be made, Reveal may (i) procure for Customer the right to continue using RoboSuite under the terms of the Agreement, or (ii) replace or modify RoboSuite to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Reveal or Customer may terminate Customer’s subscription to the affected RoboSuite Service upon written notice to the other.
10.2 Claims Brought Against Reveal.
Customer will defend Reveal against claims brought against Reveal and its Affiliates and subcontractors by any third party related to Customer Data.
Customer will indemnify Reveal against all damages finally awarded against Reveal and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
10.3 Third Party Claims.
The party against whom a third party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
10.4 Exclusive Remedy.
The provisions of Section 10 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
- LIMITATION OF LIABILITY
11.1 Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
(a) the parties’ obligations under Section 10.1(a) and 10.2,
(b) unauthorized use or disclosure of Confidential Information,
(c) either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data,
(d) death or bodily injury arising from either party’s gross negligence or willful misconduct, or
(e) any failure by Customer to pay any fees due under the Agreement.
11.2 Liability Cap.
Subject to Sections 11.1 and 11.3, the maximum aggregate liability of either party (or its respective Affiliates or Reveal’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable RoboSuite Service directly causing the damage for that twelve month period. Any “twelve-month period” commences on the Subscription Term start date or any of its yearly anniversaries.
11.3 Exclusion of Damages.
Subject to Section 11.1:
(a) neither party (nor its respective Affiliates or Reveal’s subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and
(b) Reveal will not be liable for any damages caused by any RoboSuite Service provided for no fee.
11.4 Risk Allocation.
The Agreement allocates the risks between Reveal and Customer. The fees for RoboSuite and Consulting Services reflect this allocation of risk and limitations of liability.
- INTELLECTUAL PROPERTY RIGHTS
12.1 Reveal Ownership.
Reveal, Reveal’s Affiliates or licensors own all intellectual property rights in and related to RoboSuite, RoboSuite Materials, Documentation, Reveal Content, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to Reveal and its licensors.
12.2 Customer Ownership.
Customer retains all rights in and related to the Customer Data. Reveal may use Customer-provided trademarks solely to provide and support RoboSuite.
12.3 Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against Reveal and its Affiliates or licensors, any rights, or any claims of any rights, in any RoboSuite Service, RoboSuite Materials, Documentation, Reveal Content or Consulting Services.
13.1 Use of Confidential Information.
(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 13. Customer will not disclose the Agreement or the pricing to any third party.
(b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 13.
(c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law with respect to handling of the Confidential Information.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
(b) is generally available to the public without breach of the Agreement by the receiving party,
(c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
(d) the disclosing party agrees in writing is free of confidentiality restrictions.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that Reveal may use Customer’s name in customer listings or, at times mutually agreeable to the parties, as part of Reveal’s marketing efforts (including reference calls and stories, press testimonials, site visits). Customer agrees that Reveal may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with Reveal.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
14.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
14.3 Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
14.4 Regulatory Matters.
Reveal Confidential Information is subject to export control laws of various countries, including the laws of the United States. Customer will not submit Reveal Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Reveal Confidential Information to countries, persons or entities if prohibited by export laws.
All notices by Reveal to Customer under this Agreement may be delivered be in writing (a) by nationally recognized overnight delivery service or mail service to the address set forth in an Order Form; or (b) by electronic mail to the electronic mail address of Customer’s authorized representative or administrator identified in the Order Form. Notices by Reveal relating to the operation or support of RoboSuite and those under Sections 3.4 and 6.1 may be delivered by electronic mail to the electronic mail address of Customer’s authorized representative or administrator identified in the Order Form.
Without Reveal’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Reveal may assign the Agreement to Reveal Affiliates at its sole discretion.
Reveal may subcontract parts of RoboSuite or Consulting Services to third parties. Reveal is responsible for breaches of the Agreement caused by its subcontractors.
14.8 Relationship of the Parties.
The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created by the Agreement.
14.9 Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
14.10 Governing Law.
The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the State of New York, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in New York City, New York. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
14.11 Entire Agreement.
The Agreement constitutes the complete and exclusive statement of the agreement between Reveal and Customer in connection with the Parties’ business relationship related to the subject matter of the Agreement. The Agreement takes precedence over all previous representations, discussions, and writings (including any confidentiality agreements) and the Parties disclaim any reliance on these. The Agreement may be modified solely in writing signed by the Parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Reveal accepts or does not otherwise reject the purchase order.
1.1 “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
1.2 “Agreement” means collectively, these GTC along with the Order Form referencing these GTC. Each Order Form in combination with these GTC constitutes a separate Agreement between Customer and Reveal. If there is conflict between the terms of these GTC and an Order Form, then the terms of such Order Form shall prevail, but only with respect to RoboSuite licensed through that particular Order Form.
1.3 “Authorized User” means any individual to whom Customer grants access authorization to use RoboSuite that is an employee, agent, contractor or representative of
(b) Customer’s Affiliates, and/or
(c) Customer’s and Customer’s Affiliates’ Business Partners.
1.4 “Business Partner” means a legal entity that requires use of RoboSuite in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
1.5 “Confidential Information” means
(a) with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and
(b) with respect to Reveal: (i) RoboSuite, Documentation, RoboSuite Materials, Reveal Content and analyses under Section 3.5, and (ii) information regarding Reveal research and development, product offerings, pricing and availability.
(c) Confidential Information of either Reveal or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
1.6 “Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by Reveal’s employees or subcontractors as described in any Order Form and which are governed by the Consulting Services Terms or similar agreement.
1.7 “Content” means content that is created or viewed within RoboSuite (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship).
1.8 “Customer Data” means any content, materials, data and information that Authorized Users enter into the production system of RoboSuite or that Customer derives from its use of and stores in RoboSuite (e.g. Customer-specific reports). Customer Data and its derivatives will not include Reveal’s Confidential Information.
1.9 “Documentation” means Reveal’s then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for RoboSuite which is made available to Customer with RoboSuite.
1.10 “Learning Resources” means items that Customer may download, or that Reveal may otherwise provide, such as ancillary learning material like workbooks, graphics, or course-completion promotional collateral that Customer may use pursuant to this Agreement. Unless excepted, “Learning Resources” is included in each reference to Reveal Content in this Agreement.
1.11 “Order Form” means the ordering document for RoboSuite that references the GTC. The term “Order Form” includes but is not limited to Schedule, Sales Order, Order, Renewal Order or similar so-titled documents, along with all of its exhibits and attachments, which is issued pursuant to or refer to these GTC and is executed by Customer and Reveal.
1.12 “Payment Agent” means Reveal Group Holdings Inc., or a payment agent designated by Reveal. For example, if Customer chooses to pay with a credit card or certain other payment instruments in a currency other than the U.S. Dollar, Reveal may designate the Payment Agent to be Reveal Group Pty Ltd., a limited liability company under the laws of Australia.
1.13 “Reveal Content” means Content and Learning Resources created by or for Reveal, or otherwise provided by Reveal to Customer. Unless excepted, “Reveal Content” is included in each reference to RoboSuite in this Agreement.
1.14 “Reveal Policies” means the operational guidelines and policies applied by Reveal to provide and support RoboSuite as incorporated in an Order Form.
1.15 “RoboSuite Service” means any distinct, subscription-based, hosted, supported and operated on- demand solution provided by Reveal under an Order Form. The term “RoboSuite Service” includes On-Demand Service (as provided in an applicable Order Form), and Reveal Content.
1.16 “RoboSuite Materials” mean any materials provided or developed by Reveal (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. RoboSuite Materials do not include the Customer Data, Customer Confidential Information or RoboSuite.
1.17 “Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith as detailed on the Site applicable to RoboSuite.
1.18 “Site” means a website operated by Reveal, including www.revealgroup.com, as well as all other websites that Reveal operates.
1.19 “Subscription Charges” means all charges associated with Customer access to and use of RoboSuite
1.20 “Subscription Term” means the period during which Customer has agreed to subscribe to RoboSuite with respect to any individual Authorized Users or Usage Metrics as identified in the applicable Order Form, including all renewals.
1.21 “Supplement” means as applicable, the supplemental terms and conditions that apply to RoboSuite and that are incorporated in an Order Form.
1.22“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
1.23 “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for RoboSuite as set forth in an Order Form.
1.24 “Users” shall mean any person, third party, or entity that has login access RoboSuite.
All Consulting Services pursuant to the Agreement provided by Reveal to Customer will be outlined in one or more mutually agreed-upon and jointly executed SOWs or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.
Customer hereby retains Reveal to provide the Consulting Services described in one or more SOWs or Order Forms, subject to the terms and conditions set forth in the Agreement. Reveal shall not be obligated to perform any Consulting Services until the Parties have mutually agreed upon and executed a SOW or Order Form with respect to such Consulting Services. After execution of a SOW or Order Form, the Consulting Services to be provided under that SOW or Order Form may only be changed through a change order mutually executed by the Parties (“Change Order”).
- Performance of Consulting Services.
3.1 Each SOW or Order Form will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees (defined below) charged and the Consulting Services provided. Reveal and Customer agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services.
3.3 Reveal will perform the Consulting Services through qualified employees and/or non-employee contractors of Reveal (“Subcontractors” and together with Reveal’s employees for the purposes of these “Consulting Services Terms”). Customer agrees to provide, at no cost to Reveal, timely and adequate assistance and other resources reasonably requested by Reveal to enable the performance of the Consulting Services (collectively, “Assistance”). Reveal, including its Subcontractors, will not be liable for any deficiency in the performance of Consulting Services to the extent such deficiency results from any acts or omissions of Customer, including, but not limited to, Customer’s failure to provide Assistance as required hereunder.
3.4 In performing the Consulting Services, Reveal will utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Customer may object to Reveal’s use of a Subcontractor by specifying its reasonable objection to Reveal, in which case the Parties will cooperate in good faith to appoint another Consulting Services Personnel to perform such Consulting Services. Reveal may replace Consulting Services Personnel in its normal course of business, provided that Reveal will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
3.5 Reveal will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Consulting Services Personnel performing Consulting Services. Reveal will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Reveal’s obligations under the Agreement in accordance with its terms.
3.6 Consulting Services Personnel may enter (“assume into”) Customer’s production system of RoboSuite to provide the Consulting Services.
3.7 In the event that Customer seeks to change the scope of Consulting Services to be provided under any SOW or Order Form (including, but not limited to, any changes to the project schedule described in the SOW or Order Form), Customer shall discuss such proposed changes with Reveal. If Reveal elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a written Change Order. Reveal shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Reveal shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
3.8 Unless otherwise agreed to in a SOW or Order Form, for Consulting Services that are deliverable or milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW or Order Form, Reveal shall provide Customer with written notice (“Completion Notice”). Thereafter, Customer shall have five (5) business days from the date of the Completion Notice to provide Reveal with written notice describing any deliverables that have not been provided or milestones not met. The SOW or Order Form shall be deemed complete and the deliverables accepted or milestones met absent Customer’s timely written notice of any deliverables not having been provided or milestones not having been met. In the event that Customer provides timely written notice of any deliverables not having been provided or milestones not having been met, Reveal shall make commercially reasonable efforts to remedy the defects identified. If the defects cannot be remedied, Customer may terminate the applicable SOW and Reveal shall return the portion of the Consulting Fees paid to Reveal by Customer for the nonconforming portion of the Consulting Services (or, if Consulting fees have not yet been paid, Customer will be relieved from its obligation to pay Consulting Fees for the nonconforming portion of the Consulting Services). For the avoidance of doubt, a Completion Notice shall not be necessary for Consulting Services that are time and materials based.
- Consulting Fees.
4.1 Customer will pay Reveal the fees to provide the Consulting Services as detailed or described in a SOW or Order Form (the “Consulting Fees”).
4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW or Order Form. Each SOW or Order Form providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Reveal will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. If it appears that the T&M Estimate may be exceeded, Reveal will make a reasonable effort to notify Customer as soon as practicable and provide an amended T&M Estimate. Upon receiving such amended T&M Estimate, Customer will accept or reject the amended T&M Estimate. Unless Customer rejects such amended T&M Estimate within five (5) business days of delivery, such amended T&M Estimate shall be deemed accepted by Customer and Customer shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is accepted by Customer shall be deemed a Change Order.
4.3 As detailed in the applicable SOW or Order Form, the performance of Consulting Services may be subject to an advance payment of Consulting Fees by Customer upon execution of the SOW or Order Form. Such retainer will be applied against Consulting Fees which become payable by Customer. Reveal may refuse to perform Consulting Services unless and until such advance payment is paid to Reveal.
4.4 In addition to any and all Consulting Fees, Customer will reimburse Reveal for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including changes to travel and accommodations resulting from Customer’s request incurred by Reveal in connection with providing the Consulting Services (“Expenses”). Reveal will provide reasonable documentation for all Expenses as requested by Customer.
4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
4.6 Cancellation/Changes: Any cancellations of or changes to the Consulting Services less than five (5) business days prior to the agreed upon Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).
- Relationship of the Parties.
Reveal is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Reveal will never hold itself out as an agent, subsidiary or affiliate of Customer for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Customer to Reveal hereunder shall not be considered salary for pension or wage tax purposes and neither Reveal nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Customer, unless otherwise required by law. Customer shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
- Reveal hereby represents and warrants that:
(a) the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Reveal and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at Reveal’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Reveal by Customer for the nonconforming portion of the Consulting Services; and
(b) it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
6.2 The Parties hereby agree that:
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, CUSTOM APPLICATIONS THAT RESIDE WITHIN ROBOSUITE, CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO CUSTOMER “AS IS” AND REVEAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO CUSTOMER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. REVEAL SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT CUSTOMER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY REVEAL. REVEAL DOES NOT WARRANT THAT CUSTOMER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. REVEAL EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, REVEAL EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY REVEAL OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO CUSTOMER AND ANY THIRD PARTY’S USE OF THE SERVICES.
- Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW or Order Form primarily involve the configuration of RoboSuite or the integration of Customer data with and into RoboSuite using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Customer hereby assigns to Reveal all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Reveal a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Reveal shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Reveal receives from Customer.
7.2 Without limiting the foregoing, Reveal and its licensors reserve and retain ownership of all Pre-existing Technology, Developed Technology and Generic Components (each as defined below), and Reveal hereby grants to Customer a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with Customer’s use of the Service(s). “Pre-existing Technology” means all of Reveal’s inventions (including those of Reveal’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Reveal and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Reveal’s Pre-existing Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Reveal and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Reveal’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Customer’s Confidential Information.