END USER LICENSE AGREEMENT
Last updated on 12th March 2023
IMPORTANT READ CAREFULLY: BY DOWNLOADING, INSTALLING, AND/OR USING THE SOFTWARE (DEFINED BELOW), YOU (DEFINED BELOW) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT (DEFINED BELOW). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
This End User License Agreement (the “Agreement”) is hereby entered into and agreed upon by you, either an individual or an entity, (“You” or “Customer”). If you are a resident of the Republic of India or any GCC (Gulf Cooperation Council) country (“Wobot India Customer”), then these terms comprise an agreement between you and Wobot Intelligence Private Limited. If you are not a resident of the Republic of India or any GCC (Gulf Cooperation Council) country (“Wobot US Customer”), then these terms are an agreement between you and Wobot Intelligence Inc. For the purposes of these Terms, Wobot Intelligence Private Limited and Wobot Intelligence Inc. are collectively referred to as “Company” or “Wobot”, which expression shall, unless repugnant to the context or meaning thereof, mean and include their successors, Affiliates, Partners and permitted assigns).
Company and Customer are sometimes referred to jointly as the “parties” or singularly as a “party”.1. DEFINITIONS
Affiliate means, with respect to any entity, any other present or future entity controlling, controlled by, or under common control with such entity. For the purposes of this definition, control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of the power to solely direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
Anonymisation Module means the artificially intelligent video anonymisation software offered by the Company which may be purchased by the Customer in conjunction with the Software.
Applicable Law(s) means any statute, law, regulation, ordinance, rule, judgment, notification, rule of common law, order, decree, bye-law, government approval, directive, guideline, requirement or other governmental restriction, or any similar form of decision of, or determination by, or any interpretation, policy or administration, having the force of law of any of the foregoing, by any Governmental Authority having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or thereafter.
Authorized User(s) means the Customer’s employee(s) and/or independent contractor(s) who are authorized to use the Software on behalf of the Customer in accordance with Customer’s agreements with the Company or its Partner(s).
Confidential Information means and includes any and all information provided by the Company to the Customer, or to which the Customer has or is given access, in whatever form, verbal or otherwise, including, but not limited to:
The Company’s business plans, marketing plans, financial records and analysis, research, technical specifications, marketing-sales-pricing data, designs, agreements, trade secrets, software or other Intellectual Property whether or not identified as Confidential Information, in any media, electronic or otherwise, and any other materials identified in writing as confidential information.
Any information disclosed, collected or transmitted during the term of this Agreement by the Company, including but not limited to, Personal Information of any person collected by the Company using the Services operations of the Customer, details regarding the Customer’s business relationships and details of the Customer’s employees.
For the purposes of this Agreement, “Company” shall mean the Party disclosing its Confidential Information, and“Customer” shall mean the Party receiving Confidential Information from the Company.
Customer Data means data collected by the Company in the course of providing the Software and/or Services to the Customer, which shall include but not be limited to video footage captured at the Premises (defined below). It is clarified that Customer Data shall not include Meta Data.
Documentation means the Company’s user guides and manuals relating to the Services and the Software, including on-line help, as updated and amended from time to time.
Data Protection Laws means Applicable Laws relating to protection of personal data and/or privacy of individuals.
Governmental Authority means any national, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency, any statutory body or commission or any non-governmental regulatory or administrative authority, body or other organization to the extent that the rules, regulations and standards, requirements, procedures or orders of such authority, body or other organization have the force of Applicable Law or any court, tribunal, arbitral or judicial body, or any stock exchange of any country.
Intellectual Property means all algorithms, application programming interfaces (APIs), apparatus, concepts, Confidential Information, data, databases and data collections, deliverables, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos and slogans), methods, models, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.
Intellectual Property Right(s) means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
Force Majeure Event means any event arising due to any cause beyond the reasonable control of the Party, including, without limitation, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes, industrial action of any kind, riots, insurrection, war, acts of a Governmental Authority, epidemic, pandemic and the spread of an infectious disease resulting in frustrating the performance of this Agreement by the affected Party.
Meta Data means any set of data which gives information about any other processed or unprocessed data contained in the Customer Data.
Partner means a reseller of the Company or any other entity with whose products, services or offerings, the Software and/or the Services may be integrated or bundled
Person means any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, trust, union, association, society, co-operative society, government or any agency or political subdivision thereof or any other entity that may be treated as a Person under Applicable Law.
Personal Information shall have the meaning attributed to it or any other analogous term under applicable Data Protection Laws.
Premises means the location of the Customer where the Software and Services shall be accessed / provided or otherwise onboarded in the platform.
Raw Data means any data, in relation to the Software and/or Services, that has not been processed for use by the Company.
Service(s) means the resources purchased by the Customer including (i) limited access and use rights to the Software, (ii) hosting services, (iii) professional services, and (iv) any other similar generally applicable services that the Company provides to its Customers in accordance with the Documentation and/or relevant agreements between You and a Partner.
Software means the Company’s proprietary AI/deep learning-based video analytics software which is used to monitor compliance and adherence to standard operating procedure at the workplace and to conduct inspections.
License: Upon payment of the applicable fees for the Software and continuous compliance with the terms and conditions of this Agreement, the Company hereby grants the Customer a limited, nonexclusive, nontransferable license to use the object code of the Software in the Customer’s Premises subject to the terms contained herein.
Customer agrees to use reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that Customer uses to protect Customer’s own confidential and proprietary information, but in no event less than a reasonable degree of care under all circumstances. Customer agrees that Customer will only install a Software license key obtained directly from the Company or any of its Partners.
Changes to Software: Company may, in its sole discretion, make any changes to the Software that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Company’s products or services to its customers, (b) the competitive strength of, or market for, Company’s products or services, (c) such Software’s cost efficiency or performance, or (ii) to comply with applicable law.
The Customer shall procure, or cause to procure, all necessary information, approvals, permissions, authorisations or decisions that are reasonably necessary for the Company or its Partner(s) or their authorized personnel to perform the Services including, but not limited to, a prominent display of a notice stating that the Premises is under CCTV recording and any other information as may be required to be displayed under Applicable Law, including Data Protection Laws. The Customer and its authorized representatives shall respond promptly, and in any case, within 48 (forty-eight) hours, to any requests by the Company or its Partners or their authorized personnel in the course of undertaking actions to remain compliant with Applicable Law, including Data Protection Laws, and this Agreement.
The Customer shall ensure that the Company or its Partners or their authorized personnel get access to appropriate and authorized personnel of the Customer and shall arrange for the Company’s personnel to have reasonable authorised access to the Premises. The Customer shall provide the necessary equipment and other associated resources which may be required by the Company or its Partners or their authorized personnel for performing the Services.
Administrative Users: During the configuration and set-up process for each Software, Customer will identify an administrative username and password for Customer’s company account. Company reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
Authorized Users: Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Software.
Authorized User Conditions to Use: As a condition to access and use the Software, (i) each Authorized User shall agree to abide by the terms of this Agreement. Customer shall immediately notify Company of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation and shall be liable for any breach of the foregoing agreements by any Authorized User.
Account Responsibility: Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Company account, passwords (including but not limited to administrative and user passwords) and files. Company is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
Software Restrictions: Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, Documentation or data related to the Software; (ii) modify, translate, or create derivative works based on the Software; (iii) use the Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use the Software in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with the Software. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Company, and Customer will comply with Section 5 with respect thereto.
Cooperation: Customer shall provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations hereunder, and in connection with, this Agreement, including providing Company with such access to Customer’s Premises and its information technology infrastructure as is necessary for Company to perform the Services in accordance with this Agreement.
Training and Education: Customer shall use commercially reasonable efforts to cause Authorized Users to be, at all times, educated and trained in the proper use and operation of the Software, and to ensure that the Software is used in accordance with applicable manuals, instructions, specifications and Documentation provided by Company from time to time.
Customer Systems: Customer shall be responsible for obtaining and maintaining – both the functionality and security of – any equipment and ancillary services needed to connect to, access or otherwise use each Software, including modems, cameras, hardware, servers, software, operating systems, networking, web servers and the like.
Restrictions on Export: Customer may not remove or export or allow the export or reexport of the Software or anything related to the Software or Services, or any direct product thereof in violation of any Applicable Laws.
Non-use and Non-disclosure of Confidential Information: With respect to Confidential Information of the Company, the Customer agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
Compelled Disclosure: Notwithstanding Section 5.1, the Customer may disclose Confidential Information of the Company to the extent necessary to comply with a court order or applicable law; provided, however that the Customer delivers reasonable advance notice of such disclosure to the Company and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
Remedies for Breach of Obligation of Confidentiality: The Customer acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Company for which the Company may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Customer of its obligations under this Section, the Company shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
Ownership: Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (i) the Software and the Services and all improvements, enhancements or modifications thereto (including those made during the course of performing the Services), (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all Intellectual Property Rights in relation to the foregoing. To the extent Customer acquires any right, title or interest in any such Intellectual Property Rights, Customer hereby assigns all of its right, title and interest in the same to Company.
Customer Data License: Customer hereby grants to Company a perpetual non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the Software and the Services, both during and after the term of this Agreement. For the avoidance of doubt, Company may use, reproduce and disclose Software-, and Services-related information, data and material that is anonymized, deidentified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Company. It is Customer’s sole responsibility to back-up Customer Data, and Customer acknowledges that it will not have access to Customer Data through Company or the Software following the expiration or termination of this Agreement.
The Customer hereby grants to the Company a perpetual non-exclusive, non-revocable license to use the Meta Data generated from processing of the Customer Data by the Company.
No Other Rights: No rights or licenses are granted except as expressly set forth herein.
The Company through the Software or Services provided may collect data which may be processed or unprocessed. The data collection and processing will happen on the cloud of the Company or at the Premises by installation of additional compute box or other such equipment / hardware by the Company or its partners.
It is agreed between the Parties that the ownership of the Raw Data that is collected as part of the provision of Software or Services shall vest with the Company and the Customer has no objection towards such ownership of the Raw Data by the Company, including any Raw Data that is collected locally at the Premises.
The Company shall use the Customer Data only in furtherance of provision of the Software or Services to the Customer or as required by Applicable Law. The Customer acknowledges and agrees that use of the Meta Data by the Company shall not constitute a violation of this Agreement.
The Company shall exercise at least the same degree of care as it uses with its own data and Confidential Information, but in no event less than reasonable care, to protect the Customer Data from misuse, unauthorized access and disclosure.
If any Personal Information is collected by the Company during the course of providing the Software or Services, the Customer shall have the sole responsibility to procure adequate consent for the collection, use and disclosure of such Personal Information in accordance with Data Protection Laws, from each person to whom such Personal Information relates (including but not limited to employees, and contractors or customers of the Customer), prior to sharing the same with the Company. All consents procured by the Customer under this Clause 7.5 shall be recorded and mapped adequately. In case the Customer has opted for the Anonymisation Module, the Customer may choose not to obtain consent from those persons whose identities are being anonymised using the same (entirely at its own cost and risk). Further, the Company shall at all times during the term of this Agreement or any time thereafter, have the right to seek all record of consents procured by the Customer relating to the collection of any Personal Information for the purpose of this Agreement, and Customer shall have the obligation to furnish such records within a period of 7 (seven) days of receipt of a written notice requesting such records from the Company.
The Customer agrees and acknowledges that the disclosure of Customer Data, including Personal Information, by the Company to its officers, directors, employees, contactors or affiliates, on a need-to-know basis, for the purpose of providing the Software or Services hereunder, shall not constitute a violation of this Agreement.
If the Company is compelled by a Governmental Authority and/or Applicable Law to disclose any Customer Data (including Personal Information) it shall provide the Customer with written notice as soon as reasonably practicable, to enable the Customer to seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.
Fees: Customer shall pay to the Company the Fees due for the Software in accordance with the price list of the Company or terms of its agreement with a Partner. Except as otherwise specified herein or in an agreement with a Partner, (a) fees are based on Software licensed and Services purchased and not actual usage, (b) all payment obligations are non-cancellable and non-refundable, and (c) quantities purchased cannot be decreased during the relevant term. All amounts payable by Customer are exclusive of any taxes, fees, duties, shipping, or other charges, however designated, now or hereafter levied. Customer will be responsible for all taxes (other than Company income taxes), fees, duties, shipping or other such charges.
Customer is responsible for all incidental charges related to using the Software such as charges for internet access, third party software licenses, text messaging, or other data transmission.
Term: This Agreement shall remain in effect as long as any of the Software or Services of the Company are in use by the Customer.
Termination: Company may terminate this Agreement upon written notice to Customer. In addition to any other remedies it may have, Company may also terminate this Agreement upon written notice if the Customer fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the Company.
Effect of Termination: Upon termination of the Agreement, license to the Software and provision of Services shall terminate and Customer shall immediately cease all use of, and all access to the Software and Company shall immediately cease providing Services.
Survival: Sections 4.1, 5, 6.2, 6.3, 7.5, 9.3, 10, 11, 12, 13, 15, 16, 17 and 19 of this Agreement shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
Disclaimer: Except as expressly provided herein, company does not warrant that access to the software or services will be uninterrupted or error free, nor does company make any warranty as to the results that may be obtained from use of the software or services. further, company makes no representations or warranties with respect to services provided by third party technology service providers relating to or supporting a software, including hosting and maintenance services, and any claim of customer arising from or relating to such services shall, as between company and such service provider, be solely against such service provider. the software and services are provided “as is,” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of non-infringement, merchantability and fitness for a particular purpose, to the maximum extent permitted by applicable law.
Indemnification by Company: Company will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of the Software or Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Software or Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Software is held by a court of competent jurisdiction to be or is believed by Company to be infringing, Company may, at its option and expense (a) replace or modify such Software to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Software, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Software. This Section states Customer’s sole and exclusive remedies for claims of infringement.
Indemnification by Customer: The Customer hereby agrees and undertakes to indemnify, defend and hold harmless the Company, its Partners, directors, agents, officers and employees (“Indemnified Parties”) against any and all claims, actions, demands or proceedings and all related damages, liabilities, cost and expenses (including but not limited to reasonable lawyers’ fees) (“Claims”) incurred by the Indemnified Parties arising directly out of or relating to (i) breach of the terms of this Agreement or of any Applicable Law; or (ii) any action taken by any Governmental Authority against the Indemnified Parties for any breach or default by the Indemnifying Party; or (iii) any negligent act of the Customer or its officials; or (iv) the Customer’s failure to comply with Data Protection Laws.
In no event shall (i) company’s liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability exceed in the aggregate the total fees paid or owed by customer hereunder during the two (2) months immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident), and (ii) company have any liability to the other for any lost profits or revenues or for any indirect, incidental, consequential, cover, special, exemplary or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether or not the company has been advised of the possibility of such damages. the foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law.
Any dispute, controversy or claim arising out of or relating to this Agreement or the validity, interpretation, breach or termination thereof (“Dispute”), including claims seeking redress or asserting rights under Applicable Law shall be amicably settled through mutual consultation and escalation.
If the Parties are unable to settle the Dispute amicably as aforesaid within a period of 30 (thirty) calendar days, then either Party may refer the matter to arbitration seated at (i) Delaware, in the event the Customer is a Wobot US Customer and (ii) New Delhi, India, in the event the Customer is a Wobot India Customer. The arbitral panel in both cases shall be appointed mutually by the disputing Parties. The arbitral panel’s award shall be final and binding and shall be substantiated in writing and the Parties shall submit to the arbitral panel’s award, which shall be enforceable in any competent court of law.
The arbitration proceedings shall be conducted in the English language. The venue for the arbitration proceedings shall be at (i) Wobot’s office in United States of America, in the event the Customer is a Wobot US Customer and (ii) Wobot’s office in India, in the event the Customer is a Wobot India Customer.
This Agreement shall be governed by and construed in accordance with (i) the laws of the State of Delaware, United States of America, in the event the Customer is a Wobot US Customer and (ii) the laws of India, in the event the Customer is a Wobot India Customer. Subject to Clause 13.1, both Parties hereby unconditionally submit to the exclusive jurisdiction of (i) the courts in Delaware, in the event the Customer is a Wobot US Customer and (ii) the courts in New Delhi, India, in the event the Customer is a Wobot India Customer.
Clause 13.1 to 13.3 shall not be applicable for instances of infringement of the Intellectual Property Rights of the Company in the Software. The Company will be entitled to seek injunctive relief and claim damages in accordance with Applicable Laws for such infringement.
Company may, from time to time, host and/or maintain a Software using a third-party technology service provider and Customer acknowledges that Company cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Customer agrees that Company may identify Customer as a customer and use Customer’s logo and trademark in Company’s promotional materials. Customer may request that Company stop doing so by submitting an email to email@example.com at any time. Customer acknowledges that it may take Company up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that Company may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided at the time of purchase. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
Company is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an Affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Company may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third-party technology provider that provides features or functionality in connection with a Software shall not be deemed a sub-licensee under this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with any agreement between the Customer and a Partner shall be the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any agreement between Customer and a Partner/Wobot, this Agreement shall prevail unless otherwise expressly indicated in such agreement with Partner/Wobot. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
In order to provide the Services to its users (“User” or “you”), Wobot Intelligence Private Limited and Wobot Intelligence Inc. (together with its affiliated companies and subsidiaries worldwide (“Wobot”) processes data of customers, prospective customers or visitors of the Users’ site or services (herein: “Users-of-Users”). The processing of such data by Wobot is hereinafter referred to as “Processing”. The following Data Processing Addendum (“DPA”) sets forth the terms of such Processing by Wobot.
To the extent Users-of-Users Information is Processed by Wobot on your behalf you acknowledge and agree that Wobot will process Users-of-Users Information as necessary to provide you with the Services and as further detailed herein, and by using the Services, you instruct Wobot to process such Users-of-Users Information on your behalf pursuant to this DPA.
- For the purpose of this DPA, the following terms have the following meaning:
- Adequate Country means a country that ensures an adequate level of protection to personal data.
- Data Protection Laws means all privacy and data protection laws and regulations applicable to Processing of Personal Data of natural persons under this DPA in connection with the Services and any laws or regulations ratifying, implementing, adopting, or supplementing such laws; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.
- Data Subject means the identified or identifiable person to whom the Personal Data relates.
- Jurisdiction Specific Terms means terms and conditions that apply to Users who are subject to certain additional jurisdiction-specific data protection laws, as specified in Schedule 1 of this DPA.
- Wobot Security Documentation means the technical and organisational measures Wobot deploys and maintains to protect Users-of-Users Information.
- Wobot Service(s) means the services that you avail from Wobot, during the course of which Users-of-Users Information is collected and/or processed by Wobot.
- The terms “Controller”, “Personal Data”, “Personal Data Breach”, “Processing”, and “Processor”, as used in these DPA, shall have the meanings given to them, or to any different but analogous term used in any other Data Protection Laws.
- Roles of the Parties: You acknowledge and agree that with regard to the Processing of Users-of-Users Information performed on your behalf, you are the Controller and Wobot is the Processor of such of such Users-of-Users Information.
- Details of the Processing by Wobot: Wobot will process Users-of-Users Information in order to provide the Services in accordance with the Agreement and this DPA. The nature and purposes of the Processing, its duration, the types of Personal Data Processed and categories of Data Subjects are further specified in Schedule 2 (Details of the Processing) to this DPA.
- Processing by Wobot: When Wobot Processes Users-of-Users Information on your behalf in the course of providing the Service, Wobot shall:
- Process Users-of-Users Information only for the following purposes: (i) provisioning the Services to you in accordance with the Agreement and this DPA (including any applicable Jurisdiction Specific Terms), (ii) in accordance with your reasonable documented instructions in this DPA and as may subsequently be instructed by you, to the extent your instructions are compatible with the Services and this DPA; and (iii) as required under the laws applicable to Wobot or subject to a competent authority's requirement, provided that if Wobot is required by law to Process your Users-of-Users Information for any other purpose, Wobot will provide you with prior notice of this requirement, unless Wobot is prohibited by law from providing such notice.
- Ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training regarding their responsibilities, and have committed themselves to confidentiality.
- Implement reasonable technical and organizational measures to enable you to comply with Data Subject Requests (as defined below) that you are obligated to fulfil.
- Processing by You: When using the Wobot Service, you shall:
- Ensure that your submission of Personal Data to Wobot, your instructions for the Processing of Users-of-Users Information by Wobot, and your processing of Users-of-Users Information in your use of the Services will comply with Data Protection Laws.
- Establish and have any and all required consents, legal bases and authorizations but not limited to, a prominent display of a notice stating that the Premises is under CCTV recording and any other information as may be required to be displayed as required by Applicable Law, including Data Protection Laws in order to collect, use and otherwise process and transfer to Wobot the Users-of-Users Information, and to authorize the Processing by Wobot, and for Wobot’s Processing activities on your behalf.
- In some instances (and when relevant) flag specific data as Personal Data in order for Wobot to treat it as such. You have sole responsibility for the accuracy, quality, and legality of Users-of-Users Information and the means by which it was obtained.
- Be solely responsible for any transfer of Users-of-Users Information by you (or any other person operating on your behalf) to any platform other than Wobot, or any other third party.
- General Authorization for use of Sub-processers: You hereby grant Wobot a general authorization to engage sub-processors to Process your Users-of-Users Information in order to provide the Services without obtaining any further written, specific authorization from you, subject to the following conditions:
- Wobot will restrict the sub-processor’s access to Users-of-Users Information only to what is necessary to provide the Services, and will prohibit sub-processors from processing Users-of-Users Information for any other purpose.
- Wobot’s use of any specific sub-processor to process Users-of-Users Information shall comply with applicable Data Protection Laws and Jurisdiction Specific Terms (if any) and will be governed by a contract between Wobot and such sub-processor that sets forth a level of protection and security to Users-of-Users Information comparable to this DPA.
- Current Sub-processors and Notification of Sub-processor Changes : A current list of sub-processors engaged by Wobot and Wobot subsidiaries that may Process Users-of-Users Information is available (“Wobot Sub-processor List”). Upon your first use of the Services, you acknowledge and deem authorized the Wobot Sub-Processor List effective as of the date of such first use. If you subscribe to such notifications, Wobot will provide you, via your subscribed email, with details of the current Wobot Sub-processor List or any change of its sub-processors as soon as reasonably practicable, and, in any event will notify you no less than seven (7) days prior to such change.
Objection Right for new Sub-processors: You may reasonably object to the appointment or replacement of a sub-processor by Wobot on documented reasonable grounds relating to data protection, by submitting a written and reasoned objection to Wobot at firstname.lastname@example.org within seven (7) days from the receipt of a change notification in accordance with the mechanism detailed in the previous clause.
In such an event, Wobot may, in its sole discretion, choose to use commercial reasonable efforts (but is not required to) make available to you an alternative solution to avoid the Processing of your Users-of-Users Information by the new sub-processor you objected to. Until Wobot makes a decision concerning your objection, Wobot may be required to temporarily suspend the Processing of the related Users-of-Users Information, including, if required for this matter, suspend or limit access to your User account or suspend or limit certain features of the Services offered to you.
If Wobot finds that it is unable to resolve your objection or to provide you with such alternative solution, within thirty (30) days from receipt of your valid reasoned objection, as determined in Wobot’s full and sole discretion (with no obligation to provide any reasoning), you may, as a sole remedy, discontinue the use of the affected Wobot Service(s) by providing written notice to Wobot. Such discontinuation will be without prejudice to any fees incurred by you prior to the discontinuation of the affected Services and you will have no further claims against Wobot in connection with the discontinuation of the affected Service(s). If no objection has been raised to the replacement or appointing a new sub-processor within the above mentioned time frame, Wobot will deem you to have authorized the new sub-processor.
Security Measures: Wobot has implemented and will maintain industry-standard technical and organizational security measures as required to appropriately ensure the protection of Users-of-Users Information against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Users-of-Users Information, and the confidentiality and integrity of Users-of-Users Information, including those measures in accordance with the Wobot Security Documentation.
These measures shall be appropriate to the harm which might result from any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Users-of-Users Information, and the nature and scope of the Users-of-Users Information which is to be protected.
Your Responsibility: You are responsible for reviewing the information Wobot makes available regarding its data security, and making an independent determination as to whether the Services meet your needs, requirements and legal obligations, including your obligations under applicable Data Protection Laws to ensure the appropriate level of security when using the Services, taking into consideration any risks with respect to Users-of-Users Information.
You are further responsible for properly configuring the Services and using features and functionalities made available by Wobot to maintain appropriate security in light of the nature of the data processed by your use of the Services. By using any of Wobot’s Services, you agree to the adequacy of the organizational, technical and security measures implemented by Wobot to protect the Users-of-Users Information.
Security Notifications: Wobot will, to the extent permitted by applicable law, notify you without undue delay, after becoming aware of any Personal Data Breach that affects your Users-of-Users Information, as required under applicable Data Protection Laws. Wobot shall use reasonable efforts to include in such notifications relevant information concerning: the nature of the related breach, the scope and type of affected records and affected Data Subjects, anticipated consequences and details about any remediation and other measures that Wobot has taken and/or intends to take to mitigate any potential negative effects of such breach.
You acknowledge that Wobot’s notification concerning a Personal Data Breach shall not be deemed or construed as an acknowledgement by Wobot of any fault or liability with respect to such incident.
You also acknowledge that in the event of a Personal Data Breach, you may also be obligated to take measures required under applicable Data Protection Laws in connection with your Users-of-Users Information.
- Data Subject Requests: Wobot shall promptly notify you if Wobot receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”), unless Wobot is legally prohibited from doing so. Wobot shall assist you, in a timely manner, to the extent you, in your use of the Wobot Service, do not have the ability to address a Data Subject Request, by the appropriate measures and, as reasonably possible (considering the nature of the relevant Processing), in the fulfilment of your obligation to respond to a Data Subject Request under applicable Data Protection Laws, unless Wobot is legally prohibited from doing so.
- Records: Wobot will keep records of its Processing in compliance with applicable Data Protection Laws and provide you with necessary records to demonstrate compliance upon reasonable request.
- Costs: Subject to applicable Data Protection Laws, to the extent any assistance described in this Section E entails material costs or expenses to Wobot, the parties shall first come to agreement on your reimbursement to Wobot of such costs and expenses.
Notwithstanding the forgoing, Wobot may retain Users-of-Users Information (or a portion of it), if required under the Agreement or by applicable law or regulation (including applicable Data Protection Laws); provided such Users-of-Users Information remains protected in accordance with the terms of this DPA and applicable Data Protection Laws.
- General: You acknowledge that Wobot may Process Users-of-Users Information anywhere in the world so long as it complies with applicable Data Protection Laws, applicable Jurisdiction Specific Terms and this DPA.
- Appropriate Safeguards for Cross Border Data Transfers:Wobot shall only transfer Users-of-Users Information using the applicable mechanisms required to ensure that the relevant cross-border transfer is in compliance with applicable Data Protection Laws, as follows:
- Transfers to Adequate Countries: Transfers of Users-of-Users Information by Wobot to a recipient operating on Wobot’s behalf that is located in an Adequate Country may be undertaken freely (with no need for any other safeguard) subject to applicable Data Protection Laws.
- Transfers to Wobot Sub-contractors in Other Countries: Any transfer of Users-of-Users Information by Wobot to a recipient operating on Wobot’s behalf that is located in a country other than an Adequate Country shall be undertaken only in accordance with applicable Data Protection Laws.
- Transfers at Your Instructions: In case of a transfer to a third party that is not a sub-processor of Wobot, which is conducted by Wobot at your instructions, or by you in accordance with an agreement between you and such third-party (which Wobot is not a party to), you shall be solely responsible for the transfer of Users-of-Users Information and its compliance with applicable laws.
- If the applicable transfer mechanism is amended, replaced, or otherwise invalidated, Wobot shall enter into any updated version of such mechanism or any alternative mechanism endorsed by the applicable competent authority.
- This DPA shall be in effect for as long as you use any of the Services; provided, however, that in the event Wobot is obligated, according to the terms of this DPA or the Agreement, to keep Users-of-Users Information following the termination of the Services, this DPA shall remain in effect for as long as Wobot holds Users-of-Users Information.
- For avoidance of doubt and to the extent allowed by applicable law, all liability under this DPA, including limitations thereof, will be governed by the relevant provisions of the Wobot EULA.
- You acknowledge and agree that Wobot may amend this DPA as may be required from time-to-time, by posting the relevant amended and DPA on Wobot’s website. Any amendments to the DPA are effective as of the date of posting. Your continued use of the Services after the amended DPA is posted constitutes your agreement to, and acceptance of, the amended DPA.
- If any provision of this DPA deemed by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions.
- Any questions regarding this DPA should be addressed to the Wobot Data Protection Officer at email@example.com. Wobot will attempt to resolve any complaints regarding the use of your Users-of-Users Information in accordance with this DPA and the Agreement.
- California: Applicable Data Protection Laws and Jurisdiction Specific Terms for California Residents:
- The definition of “Data Protection Law” includes the CCPA.
- The definitions of “Personal Data”, “Data Subject”, “Controller” and “Processor” includes the definitions “Personal Information”, “Consumer”, “Business”, and “Service Provider”, respectively, all as defined under CCPA.
- Wobot will process, retain, use, and disclose personal information only as necessary to provide its Services, which constitutes a business purpose.
- Wobot agrees not to: (i) sell (as such terms is defined under the CCPA) Personal Data (including Users-of-Users Information); (ii) retain, use, or disclose Personal Data (including Users-of-Users Information) for any commercial purpose (as defined by the CCPA) other than providing the Services; or (iii) retain, use, or disclose Users-of-Users Information outside of the scope of the Agreement.
- Wobot certifies that its sub-processors, as described in Article C of the DPA, are Service Providers under CCPA, with whom Wobot has entered into a written contract that includes terms ensuring at least the same level of protection and security as those set out in this DPA.
- Wobot will implement and maintain reasonable security procedures and practices appropriate to the nature of the Personal Data it processes as set forth in Article D of this DPA.
- Nature and Purpose of Processing: We may use your User-of-User Information for the following purposes (and tasks related to such purposes), all in accordance with the Agreement and in a way that is proportionate and that respects yours and your Users-of-Users privacy rights:
- Providing you with the Services.
- Acting upon your instructions, including providing you with professional assistance, only upon your request. provided your instructions are consistent with the terms of this DPA and the Agreement.
- Performing and enforcing the Agreement and this DPA and other contracts executed by and between us (if any), and defending Wobot’s rights.
- Preventing, investigating and mitigating data security risks and incidents, fraud, errors and/or illegal or prohibited activities.
- Complying with applicable laws and regulations.
- Duration of Processing: Prior to the termination of your use of the Services, Wobot will process your User-of-User Information in accordance with this DPA and the Agreement until you elect to delete such User-of-User Information (or part thereof) on your own, as you are solely responsible for deleting your User-of-User Information. Upon such termination, deletion of your Users-of-Users Information will be handled by Wobot in accordance with Section 14 (Deletion of Users-of-Users Information) of this DPA.
- Type of Personal Data: Subject to your content restriction obligations under this DPA and the Agreement, you may submit Users-of-Users Information to the Service, in scope and nature that is controlled and determined solely by you.
- Categories of Data Subjects: Subject to your content restriction obligations under this DPA and the Agreement, you may submit Users-of-Users Information to the Service, which may include (but is not limited to), Personal Data relating to the following categories of Data Subjects, all as controlled and determined solely by you: Your existing and prospective employees, candidates, agents, consultants, freelancers, business partners and/or sub-contractors (and their respective employees, contact persons, agents, etc.), who are natural persons;(ii) your existing and prospective customers and end users (and their respective employees, contact persons and agents), who are natural persons; and (iii) any other third party individual with whom you decide to engage through the Wobot Service.