Anybots2.0 Inc. Purchase Agreement
This Anybots, Inc Purchase Agreement (together with its applicable attachments, including the Standard Terms and Conditions, the “Agreement”) governs all transactions during the Term relating to the purchase of products (“Products”), delivery of services (“Services”) and certain other deliverables not considered Products that are sold from time to time (“Deliverables”), from Anybots, Inc (“Anybots”).
By clicking below, Buyer and Anybots agree that the terms of this Agreement govern all transactions during the Term relating to the purchase of Products, delivery of Services and/or Deliverables, that it is the complete agreement, and that it replaces and supersedes any prior or contemporaneous oral or written communications or agreements between Buyer and Anybots with respect thereto.
This Agreement is effective as of the date clicked.
Anybots , Inc.
Standard Terms and Conditions
1. ACCEPTANCE AND PRIORITY OF THESE TERMS AND CONDITIONS.
a. To the extent there are conflicts between this Agreement and any Purchase Order and/or Purchase Order Acknowledgment, the order of controlling document shall be this Agreement, the Purchase Order Acknowledgment and then the Purchase Order. Once accepted by Anybots, neither party can change, cancel or delay an order without the other party’s prior written approval, in each case subject to Section 3 below. Anybots shall manufacture, assemble, test and deliver the Products under these terms and conditions and any applicable Purchase Order and/or Purchase Order Acknowledgment, each of which is a part of, and incorporated by reference into, this Agreement.
b. The parties reject all preprinted terms on each other’s form documentation.
a. The quoted price (the “Price”) for Products and/or Services has been agreed to by the Buyer.
3. DELIVERY AND TITLE.
a. “Delivery” shall be deemed EX Works Anybots, or Anybots agent’s, manufacturing plant(s). The Products are deemed Delivered when the Products are made available at its own premises or those of its agent (the “Ex Works Location”). The Buyer bears all the costs including any insurance charges and risks involved in transporting the Products from the Ex Works Location to the desired destination. Upon “Delivery”, title automatically passes to Buyer.
b. Any delay, due to any cause beyond Anybots’ reasonable control, will automatically extend the date of Delivery, and Anybots will not be liable for any damages from such delay (or for failure to give notice of such delay). Anybots may deliver Products up to seven (7) days in advance of any delivery dates. Products, including spare parts or other materials, held or stored for Buyer following Delivery are at Buyer’s sole expense and risk.
4. SHIPMENT AND ACCEPTANCE.
Anybots will deliver Products in standard packaging.. Any freight forwarder or carrier is deemed to act as Buyer’s agent. All Products are deemed accepted upon transfer of title at the Ex Works Location.
5. SUBSTITUTIONS AND MODIFICATIONS.
Anybots shall have the right to make substitutions and modifications in the specifications of the Products, provided that such substitutions or modifications will not materially affect the overall performance of the Product.
6. TERMS AND METHOD OF PAYMENT.
a. Payment terms are per Anybots’ Inc. 100% upon placement of order.
b. If Anybots is required to pay any import or export tariffs, fees, Value Added Taxes, federal, state or local taxes or fees based on the Services or Deliverables, such taxes (other than income taxes) will be paid by Buyer.
7. INTELLECTUAL PROPERTY RIGHTS.
a. The terms and conditions of any non-disclosure or confidentiality agreement between Anybots and Buyer shall apply to any information exchanged or disclosed pursuant to any order placed under this Agreement. Anybots retains all proprietary rights including, without limitation, intellectual property, patent, trademark or trade secret rights embodied in the Products or arising out of other work in connection with an order under this Agreement. Buyer acknowledges and agrees that all user manuals and related documentation, including, without limitation, specifications, drawings, illustrations, designs, patterns, and text are confidential to Anybots and protected by all applicable copyright laws and shall not be duplicated, reproduced or disclosed outside Buyer’s organization, in whole or in part, for any purpose without the prior written consent of Anybots .
b. Buyer acknowledges that it is not granted by this Agreement any license or other right, directly, indirectly, to manufacture or have manufactured the Products, and Buyer specifically disclaims any such license or right.
c. To the extent Products incorporate Anybots’ software (whether embedded or on a disk or tape or other media), not otherwise covered by a separate software license, Anybots grants to Buyer a limited, non-exclusive, non¬-assignable license to use the software incorporated into the Products (the “Software”) only in connection with Buyer’s own use of the Products.. Anybots retains all right, title and interest in and to such Software and any new releases, versions, modifications, enhancements, error corrections or upgrades thereto. Buyer shall not modify, reproduce, reverse engineer, decompile or disassemble any portion of the Software or sublicense, divulge, disclose or distribute any portion of the Software to any third party, other than as provided herein.
d. Neither party shall use the other’s trademarks without prior written consent. Neither party shall remove or deface any patent, copyright, mask work, trademark or other proprietary rights notices of the other party.
8. LIMITED WARRANTY.
a. Anybots warrants that the Products (other than parts serviced through the RMA process, refurbished parts and spares) sold to Buyer will be free from material defects in material and workmanship for twelve (12) months following Delivery (the “Warranty Period”). Anybots warrants the parts serviced through the RMA process, Deliverables, refurbished parts and spares will be free from material defects in material and workmanship for ninety (90) days following Delivery. Anybots warrants that all Services shall be performed in accordance with the standards and practices of professional care, skill and diligence customarily observed by similar service providers under similar circumstances for a period of thirty (30) days from completion of the Services. THIS LIMITED WARRANTY ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. THE FOREGOING WARRANTY APPLIES ONLY TO BUYER, AND BUYER SHALL NOT PASS THROUGH ANY OF THE WARRANTIES MADE BY ANYBOTS HEREIN.
b. Anybots ’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, under the warranty above shall be to repair or replace, at Anybots ’s option and expense, any defective Products (or parts of the Products). Products and parts replaced by Anybots become the sole property of Anybots and will not be returned. Buyer must have in place insurance reasonably satisfactory to Anybots to cover injuries or other damages that may occur while Anybots employees are on site. The foregoing remedy is available only if: (i) Buyer promptly and within the Warranty Period notifies Anybots of the defective Product , (ii) Anybots determines, in its sole discretion, that such defect actually exists and was not caused by (A) damages or other events occurring during or following Delivery, including accident, fall, fire, power failure, power surge or other hazard, (B) misuse or modifications not authorized by Anybots in writing, (C) neglect, (D) improper installation or testing, or (E) attempts to repair, and, (iii) Anybots determines, in its sole discretion, that the Products were properly maintained as set forth in the applicable Product manual. Repair or replacement of Products, or any part thereof, does not extend the Warranty Period. In addition, the foregoing remedy will not be available, and a Product’s warranty will be null and void, to the extent Buyer uses spares not provided by Anybots .
9. LIMITATIONS ON ANYBOTS’ LIABILITY. Anybots shall not be liable for any loss, damage or penalty resulting from inability or failure to perform any of its obligations under the Agreement due to force majeure or any cause or condition beyond its reasonable control. IN NO EVENT SHALL ANYBOTS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES BY BUYER, NOR SHALL ANYBOTS ’S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED THE AMOUNT ACTUALLY PAID BY BUYER TO ANYBOTS FOR THE PRODUCTS OR SERVICES SOLD HEREUNDER. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN SECTION 13 (INTELLECTUAL PROPERTY INDEMNITY), NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INTELLECTUAL PROPERTY INDEMNITY.
a. Buyer agrees to defend and hold Anybots harmless from and against any legal action based upon a claim that any Product or Deliverable, to the extent incorporated, combined or used in conjunction with a product or service of Buyer (or a purchaser of Buyer’s products) infringes or violates any patent, copyright, mask work right or similar right of a third party now or hereafter existing in and shall indemnify Anybots from all Damages arising from a final adjudication of such legal action; provided that Anybots gives Buyer prompt written notice of any such legal action together with all reasonably requested and required information, assistance and authority during the course of the investigation or defense of any such claim. Notwithstanding the foregoing, Buyer shall have no liability or obligation to Anybots whatsoever to the extent: (a) infringement is attributable to Buyer’s incorporation into the Product of an Anybots supplied or specified design, product, system or processes; and/or (b) such legal action or the Damages arising there from would have been avoided but for the incorporation, combination, or use of the Product with devices, parts, processes or software not provided or not required by Buyer. Notwithstanding the foregoing, should any Product become the subject of any such legal action, Buyer may, at Buyer’s option and expense: (i) procure the right to make, use and sell the Product to the extent incorporated, combined or used in conjunction with a product or service of Buyer (or a purchaser of Buyer’s products); or (ii) replace or modify the product or service to make such non-infringing. Buyer shall have no obligation pursuant to this provision for any claim unless: (i) Anybots gives Buyer prompt written notice of the claim; (ii) Buyer has the sole right to control and direct the investigation, preparation, defense, and settlement of the claim; (iii) Anybots does not settle such claim without Buyer prior written consent; and (iv) Anybots fully cooperates with Buyer in such defense and settlement. Anybots may, at its own cost, retain counsel to assist in the defense of a claim provided Buyer shall retain control of the defense.
c. THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION CONSTITUTE THE PARTIES’ ENTIRE RESPECTIVE INDEMNITY OBLIGATION TO THE OTHER, AND SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
11. GENERAL INDEMNITY. Subject to the other express provisions herein, each party agrees to defend, indemnify and hold harmless the other party from and against all Damages arising out of this Agreement, to the extent arising from the indemnifying party’s negligence, misconduct, failure to provide a safe working environment, fraud or breach of any material obligation hereunder. The indemnifying party shall have no obligation pursuant to this provision for any claim unless: (i) the other party gives the indemnifying party prompt written notice of the claim; (ii) the indemnifying party has the sole right to control and direct the investigation, preparation, defense, and settlement of the claim; (iii) the indemnified party does not settle such claim without the indemnifying party’s prior written consent; and (iv) the indemnified party fully cooperates with the indemnifying party in such defense and settlement. The indemnified party may, at its own cost, retain counsel to assist in the defense of a claim, provided the indemnifying party retains control of the defense.
12. APPLICABLE LAW; JURISDICTION AND VENUE. The parties agree that any dispute in the meaning, effect, or validity of this Agreement shall be governed by, enforceable under and resolved in accordance with the laws of the State of California, without regard to the conflict of laws provisions. The parties further agree that if one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the balance of the Agreement shall be interpreted and given effect as if such provision were so excluded. The parties consent to Santa Clara County, California, and any United States District Court or Superior Court of competent jurisdiction located within its boundaries, as the exclusive venue and jurisdiction of any litigation or other dispute resolution modality. Notwithstanding the foregoing, either party may take action in any jurisdiction to prevent disclosure of Confidential Information, or to enforce a judgment or other decision. In any judicial or arbitration proceeding arising out of this Agreement or the Products, neither party is entitled to recover special, exemplary, indirect, consequential, incidental or punitive damages, or its attorneys’ fees or costs incurred pertaining to such proceeding (even if the prevailing party).
13 ARBITRATION. Anybots and Buyer agree that any and all disputes which arise out of this Agreement, shall be resolved through final, binding and non-appealable arbitration in Santa Clara County, California in accordance with the rules and regulations of the American Arbitration Association then in effect. Both parties understand and agree that the arbitration shall be instead of any civil litigation and that the arbitrator’s decision shall be final and binding to the fullest extent permitted by law and enforceable by any court of jurisdiction. If the parties cannot agree on an arbitrator, the Superior Court of the county of venue (or equivalent court) shall appoint the arbitrator. The arbitrator shall be empowered and authorized to award, order and enforce any equitable remedy, including specific performance. The arbitrator is not empowered, and is without jurisdiction, to award either party: (a) special, exemplary, indirect, consequential, incidental or punitive damages, or (b) its attorneys’ fees or costs incurred in the arbitration (whether such party is the prevailing party). Filing a judicial action for recording a notice of pending action, order of attachment, receivership, injunction, or other provisional remedies, shall not waive these arbitration rights nor is such limited recourse to such judicial relief precluded by the existence or availability of arbitration hereunder. The parties shall split equally the arbitrator’s fees.
14. WAIVER OF JURY/LIMITATIONS OF ACTIONS. Anybots and Buyer agree, to the fullest extent permitted by law, to waive any right or claim to adjudication by jury of any claim or cause asserted against the other and arising hereunder and, further, that any such claim or cause, if not brought within two (2) years of the event from which the claim or cause arises, shall be forever waived and barred.
Anybots End User Software License Agreement
THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”) beginning the date the buyer accepts these terms on any website operated by Anybots.com or related parties.
Anybots 2.0, Inc. 3001 Coronado Drive, Santa Clara, Ca 95054 USA
OF THE FIRST PART
OF THE SECOND PART
The Vendor wishes to license computer software to the Licensee and the Licensee desires to purchase the software license under the terms and conditions stated below.
IN CONSIDERATION OF the provisions contained in this Agreement and for other good and valuable consideration the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. Under this Agreement the Vendor grants to the Licensee a non-exclusive and non-transferable license (the “License”) to use Anybots Telepresence (the “Software”).
2. “Software” includes the executable computer programs, embedded software, clients and any related printed, electronic and online documentation and any other files that may accompany the product or are hosted on a remote server.
3. Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
4. Enterprise Server Software may be loaded onto no more than one computer. A single copy may be made for backup purposes only.
5. The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
6. The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
7. Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
8. The license fee for this Agreement will consist of an original license purchase price of included in the purchase price of the Anybots Inc. Model QB, plus a monthly fee of $150 USD.
Limitation of Liability
9. The Software is provided by the Vendor and accepted by the Licensee “as is”. Liability of the Vendor will be limited to a maximum of the original purchase price of the Software. The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software.
10. The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.
11. The Vendor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
Warrants and Representations
12. The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright or applicable statute.
13. All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee (“Acceptance”) upon execution of this Agreement.
14. The Licensee will be entitled to one year of phone support available 24 hours per day 7 days per week, at no additional cost.
1. Phone: Dial 650-332-7222.
2. E-mail: [email protected]
15. During the term of the license, the Licensee will be entitled to maintenance upgrades and bug fixes, at no additional cost.
16. The initial term of this Agreement shall be for the term of one (1) year (the “Initial Term”) commencing on Acceptance. At the expiration of the Initial Term, Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term” and collectively with the Initial Term the “Term”) unless a party provides the other parties with notice of its intent not to renew this Agreement at least thirty (30) days prior to the expiration of the then current term.
At the end of the term of this Agreement the Licensee must destroy all non embedded copies of the Software in their possession.
17. This Agreement will be terminated and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly destroy the non embedded Software or return the non embedded Software to the Vendor. Termination does not release the buyer from any other obligations of this agreement other than the monthly license fee.
18. The Vendor will be free of liability to the Licensee where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.
19. The Parties to this Agreement submit to the jurisdiction of the courts of the State of California for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of California.
20. This Agreement can only be modified in writing signed by both the Vendor and the Licensee.
21. This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
22. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
23. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
24. This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
25. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor’s successors and assigns.
26. All notices to the parties under this Agreement are to be provided at the following addresses, or at such addresses as may be later provided:
a) Anybots Inc.
3001 Coronado Drive, Santa Clara, Ca 95054