Vendor Submission Agreement

 

LAST UPDATED: October 7, 2019

This is a legal agreement between you (a “Vendor,” “You,” and “Your”) and Automation Anywhere, Inc. (“AAI”) (individually a “Party” and collectively the “Parties”) that states the terms that govern Vendor submissions of Bot Store Products to AAI’s Bot Store at https://botstore.automationanywhere.com/. By agreeing to this Vendor Submission Agreement (“Agreement”), You acknowledge that You have read and agree to be bound by the terms herein.

Agreement

You represent that You have full power, capacity, and authority to accept the terms of this Agreement. If You are accepting the terms of this Agreement on behalf of Your employer, or another entity, You represent that You have full legal authority to bind Your employer or such entity to this Agreement.

AAI reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Bot Store website (currently located at https://botstore.automationanywhere.com). Modifications are effective immediately upon posting or dispatch of a notice. It is Your responsibility to regularly check for, review, and comply with any modifications to this Agreement.

I. Definitions

“Bot Store” is the marketplace provided by Automation Anywhere that lists products, including but not limited to bots and Digital Workers, enabling customers to discover and experience listed products. The Bot Store is currently accessible at: https://botstore.automationanywhere.com, but may be available from other URIs and also embedded within Automation Anywhere products in the future.

“Bot Store Products” applies any listing in Bot Store, which currently includes, but is not limited to bots and Digital Workers. Also referred to as “Product” or “Products”.

“Bot” is a robotic process automation application that runs on or independently of the Automation Anywhere platform.

“Digital Worker” is a collection of bots that are packaged to deliver skills associated with a traditional job role.

“Vendor” is any individual, corporation or entity that makes a product available for download and/or purchase on Bot Store.

II. Scope of Product License

To publish a Product on Bot Store website, the Product must be approved by AAI. AAI may, in its sole discretion, accept or reject any Product submission.

Vendor Product License: Subject to the terms of this Agreement, You hereby grant to AAI a limited, worldwide, non-exclusive license during the Term (as subsequently defined in this Agreement) to distribute, access, list, demonstrate, market, and allow an entity with an active Automation Anywhere Enterprise (“AAE”) license (a “Customer”) to access, download, install, and use any Product that You submit to AAI and/or Bot Store website.

Vendor-Customer Agreement: By listing your Product in Bot Store, you agree to deliver the Product and related services (ie. support, software patches and updates) as specified in the Vendor Program Policies provided in Section III directly to Customers as specified in your licensing terms if so provided with your Product listing. You may not, however, offer or impose any terms that alter or restrict the terms of this Agreement, and any license that you grant a Customer to use Your Product must terminate when the Customer’s AAE license is terminated. You must make it absolutely clear that any warranty, support, indemnity, or liability obligation that you offer to a Customer is offered by You alone. You agree to indemnify AAI for any liability incurred by any party as a result of any warranty, support, indemnity, liability, or other term You offer to a Customer. If You do not have Your own governing terms for Customers’ use of Your Product, You may opt to use the minimum terms provided in Section VIII (Optional Minimum End User Terms) below; provided, however that You acknowledge that such terms are provided as-is. AAI encourages You to consult with Your own legal counsel to review such terms prior to use.

Term: This Agreement is effective as of the date that you agree this Agreement (the “Effective Date”) and will remain in effect for one (1) year thereafter (the “Initial Term”), unless it is terminated earlier by either You or AAI pursuant to this Agreement. After the Initial Term, this Agreement automatically renews for additional one (1) year periods (each a “Renewal Term”), unless it is terminated earlier by either You or AAI pursuant to this Agreement, or unless You or AAI give notice of non-renewal to the other party no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term. The Initial Term, together with any and all Renewal Terms, are collectively referred to as the “Term.”

Termination: You or AAI may terminate this Agreement at will, provided that the terminating Party gives notice of termination to the other Party no later than thirty (30) days before such termination takes effect. AAI reserves the right to immediately remove Your Products from Bot Store website upon notice of termination or non-renewal. Upon termination or non-renewal of this Agreement by either Party, however the Vendor is obligated to provide support for all AAI customers with active paid licenses until the their license expires or refund those customers a pro-rata share of their paid license.

III. Additional Obligations, Representations, Acknowledgements, and Rights

Vendor Product Representations: You represent and warrant that You own any Product that You submit, and/or have all requisite licenses or authorizations necessary for You to grant AAI this license, including for any of Your Products underlying data, such as third-party code. You are solely responsible for acquiring from any third-party owner, and also complying with, whatever rights, requirements, and/or restrictions apply to such data. You represent and warrant that Your Product does not infringe on any owner’s intellectual property rights.

You agree to comply with, and ensure that Your personnel and subcontractors comply with, all applicable laws and regulations. You also agree that You will not use, or permit the use of, any information obtained through Your access to Bot Store or Your relationship with AAI in a manner that is harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable.

You also understand and acknowledge that AAI in no way recommends or endorses any Vendor Product, bot, Digital Worker, service, or company simply by permitting a Partner, Vendor or Customer to access Bot Store to submit or download a Product.

Vendor Program Policies: Further terms regarding publishing a bot, Digital Worker or any other Product on Bot Store website (“Vendor Program Policies”), including partnership types and tiers, vendor benefits, and submission and publishing criteria can be found here. To the extent of any inconsistency between the terms of the Vendor Program Policies and the terms of this Agreement, the terms of this Agreement shall prevail.

Intellectual Property: You acknowledge that, as between the Parties, Bot Store, AAI Enterprise Software, all AAI websites, and all intellectual property rights therein, are and will remain the sole property of AAI, with no rights granted to You under this Agreement with respect to such intellectual property, other than any limited license(s) specified in this Agreement.

AAI acknowledges that, as between the Parties, Your Product and all intellectual property rights therein are and will remain Your sole property, and no rights are granted to AAI under this Agreement with respect to the Product or the intellectual property rights therein, other than any limited license(s) specified in this Agreement.

The Parties agree not to use Bot Store, AAI Enterprise Software, AAI websites, Products, or the intellectual property rights therein, except as expressly permitted by this Agreement.

Trademarks: You grant to AAI a worldwide, non-exclusive, non-sublicenseable, royalty-free license during the Term to use Your trade and service marks (“Marks”), including Your name and associated designs and logos, for the sole purpose of identifying and promoting Your Product. You represent and warrant that You own or otherwise have sufficient rights to Your Marks to grant AAI these rights and that Your Marks do not infringe any intellectual property rights of any third party.

You further agree to follow AAI’s trademark guidelines, which are published at www.automationanywhere.com/trademark, as may be modified by AAI from time to time. You agree not to use AAI’s Marks in a way that is not permitted by the guidelines or this Agreement, unless You first receive express written authorization from AAI.

You and AAI agree that each Party’s Marks are, and will remain, the sole and exclusive property of each Party and that neither Party acquires any right, title, or interest in the other Party’s Marks, other than the limited license to use the Marks pursuant to this Agreement. The Parties further agree to immediately cease use of such Marks upon receipt of written instruction from the other Party to do so.

Product Support: You are solely responsible for supporting and servicing Your Products. You must make clear in Your Bot Store Product the level of technical support that You will provide for Your Products and that AAI cannot, and will not, provide support for Your Products.

AAI Periodic Review of Bots: AAI reserves the right to conduct periodic security reviews of Your Products, to ensure compliance with the terms of this Agreement and other terms that apply to Your use of the Bot Store website. You agree to reasonably cooperate with such testing, including submitting, within a reasonable time, responses to any questionnaires or other inquiries You may receive from AAI.

Payment and Fees: Any fees that You or AAI may charge or receive as compensation for Your Product submission or Customer downloads and purchases of Your Product are described in the Vendor Program Policies. Subject to the terms of this Agreement, You may use Customer information that You obtain through AAI to sell Your services to Customers, if those services can be used with a Customer’s AAE license or another AAI product. You may not use Customer or other information that You obtain solely through AAI to provide, promote, or service a competitor’s products or services, including a competitor’s robotic process automation applications or software. Information that You obtain solely through AAI excludes information that You have received or developed independently of Your relationship with AAI.

Marketing Statements: You are responsible for providing a description of any Product that You submit, which will be used by AAI to describe your Product on the Bot Store website. AAI reserves the right to edit any Product description that You submit. Any edits made by AAI to Your Product’s description are subject to Your consent, which shall not be unreasonably withheld. You and AAI agree that neither Party will knowingly make false or misleading statements regarding the other Party, any Product, or a Products’s capabilities, features, functions, or performance.

Customer Reviews of Products:  AAI permits Customers to post reviews of Products on the Bot Store website, and AAI reserves the right to remove any review that AAI, in its sole discretion, determines is harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable. AAI reserves the right, but is not required to, monitor and remove user-generated content.

Customer Termination by AAI:  You acknowledge and understand that AAI may modify, suspend, terminate, or otherwise disrupt a Customer’s access to the Bot Store or AAE license at any time, for any reason, subject to any applicable agreement between AAI and a Customer.

AAI Independent Development:  Except for the Parties’ confidentiality obligations, nothing in this Agreement will impair AAI’s right to develop, acquire, license, market, promote, or distribute Products, software, products, or technologies that perform the same or similar functions as, or otherwise compete with, any other Product, Bot, Digital Worker, software, or technologies that You may develop, produce, market, or distribute, subject to applicable patent, copyright, and trade secret laws.

Costs:  You and AAI are each solely responsible and liable for all costs and expenses incurred in performing Your respective obligations under this Agreement.

Confidentiality:  You agree that any non-public information, including Customer information and any other information disclosed by AAI to You in connection with Your Product submission, will be considered and referred to as “Confidential Information.” Excluding your Product submission and any connected or underlying information necessary for its operation, proprietary information that you disclose to AAI and clearly identify as “confidential” will also be considered Confidential Information. The Parties agree not to disclose, publish, or disseminate any Confidential Information to anyone other than their employees and contractors, and such disclosure may only be made to the extent that it is not otherwise prohibited by this Agreement. The Parties further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information and acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury that may be difficult to ascertain. Accordingly, the Parties agree that each Party will have the right to seek immediate injunctive relief to enforce the other Party’s obligations under this Agreement in addition to any other rights and remedies the Parties may have under law and in equity.

If a Party is required by law, regulation, or a valid binding order of a court of competent jurisdiction to disclose Confidential Information, the Party may make such disclosure, but only if, applicable law permitting, the Party notifies the other Party before doing so and uses commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of the Confidential Information. These confidentiality obligations will survive the termination or expiration of this Agreement and apply indefinitely.

IV. Indemnification

You agree to indemnify, defend (if AAI so requests), and hold AAI and AAI’s officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) made against You or AAI by any third party due to, arising out of, or resulting from Your Product submission, Your use of the Bot Store, or any violation of this Agreement, applicable law, or a third party’s rights, including intellectual property rights.

AAI agrees to indemnify and hold You and Your officers, directors, employees, agents, licensors, and service providers harmless from and against third-party claims based on AAI’s gross negligence or intentional misconduct or any violation of this Agreement, applicable law, or a third party’s rights, including intellectual property rights.

The Parties’ indemnification, defense, and hold harmless obligations will survive the termination or expiration of this Agreement and apply indefinitely.

V. Disclaimers

USE OF A BOT, DIGITAL WORKER, OR ANY OTHER BOT STORE PRODUCT AND THE BOT STORE IS “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES DO NOT MAKE ANY express OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING REGARDING THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT, OR ANY RELATED MATTER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF EVERY NATURE AND KIND, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SATISFACTORY QUALIT, ACCURACY, QUIET ENJOYMENT, SECURITY, TITLE, AND NON-INFRINGEMENT OF ANY PARTY’S RIGHTS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO THE PARTIES.

VI. Limitation of Liability

EXCEPT FOR YOUR OBLIGATION TO INDEMNIFY AAI, NEITHER PARTY NOR ITS OFFICERS, AGENTS, EMPLOYEES, LICENSORS, OR SERVICE PROVIDERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) OR OTHER LEGAL THEORY OF LIABILITY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.

IF, NOTWITHSTANDING THESE TERMS, EITHER PARTY IS FOUND LIABLE FOR ANY LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, IN NO EVENT WILL THE PARTY’S AGGREGATE LIABILITY TO THE PARTY OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR U.S. $100.00, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF A PARTY’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. USE OF A PRODUCT AND THE BOT STORE IS AT EACH PARTY’S SOLE RISK.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO THE PARTIES.

VII. Miscellaneous

Notices:  Except as otherwise specified in this Agreement, notices to AAI must be sent to [email protected] OR Automation Anywhere, Inc., Attn. Legal Department, P.O. Box 640007, San Jose, CA 95164. Notices to You will be sent to the email address that You provided when You registered for the Bot Store website. Notice to AAI is effective upon receipt by AAI. Notice to You is effective upon dispatch by AAI.

Vendor-AAI Relationship: You understand and agree that by submitting a Product, no legal partnership, joint venture, agency, employee, or fiduciary relationship is created between You and AAI. Neither Party has any authority to assume or create any obligation for, or on behalf of, the other Party, express or implied, and neither Party will represent otherwise or attempt to bind the other Party to any contract without the Parties’ mutual express written consent.

Assignment:  Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement, together with all rights and obligations herein, without the other Party’s consent if the assignment is in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of a Party’s assets that does not involve a direct competitor of either Party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this provision will be void and of no effect.

No Waiver of Rights:  Either Party’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, You and AAI agree that such provision shall be eliminated or limited to the minimum extent possible, and that every other provision of this Agreement will remain valid and in full force and effect.

Entire Agreement:  This Agreement constitutes the sole and entire Agreement between You and AAI with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.

Survival:  The following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the termination or expiration of this Agreement: (i) Vendor Product Representations; (ii) Intellectual Property; (iii) Confidentiality; (iv) Indemnification; and (v) Limitation of Liability.

Interpretation:  The section headings and subheadings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. Any construction or interpretation to be made of this Agreement shall not be construed against the drafter.

Governing Law and Jurisdiction:  This Agreement, and the relationship between You and AAI, shall in all respects be governed by the laws of California without regard to its conflict of law principles, the United Nations Convention for the International Sale of Goods, or any implementation of the Uniform Computer Information Transactions Act. The exclusive venue and jurisdiction of any dispute or suit arising out of, or in connection with, this Agreement shall be only in the federal or state court with competent jurisdiction in Santa Clara County, California, and You and AAI each irrevocably submit to the personal jurisdiction and venue of any such court therein.

Electronic Communications:  You consent to receive communications from AAI in electronic form, and You agree that all communications that AAI provides to You electronically—including terms and conditions, agreements, notices, disclosures, and other communications—satisfy any legal requirement that such communications be in writing.

Limitation on Time to File Claims: Any cause of action or claim You may have arising out of, or relating to, this Agreement must be commenced within one (1) year after the cause of action or claim accrues; otherwise, such cause of action or claim is permanently barred.

Questions:  If you have any business questions regarding AAI, the Bot Store, Products, or other AAI products and services, please email AAI at [email protected] or write to AAI at 633 River Oaks Pkwy, San Jose, CA 95134, USA.

VIII. Optional Minimum End User Terms

The following language provides optional minimum end user terms that You may opt to use to govern Customer’s use of Your Product as described under “Vendor-Customer Agreement” in Section II (Scope of Product License) above:

THIS PRODUCT IS PROVIDED BY THE COPYRIGHT HOLDER(S) AND APPLICABLE “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS, AND THE PRODUCT OWNER(S) HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF EVERY NATURE AND KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SATISFACTORY QUALITY, ACCURACY, QUIET ENJOYMENT, SECURITY, TITLE, AND NON-INFRINGEMENT OF ANY PARTY’S RIGHTS. NEITHER THE PRODUCT OWNERS NOR THEIR OFFICERS, AGENTS, EMPLOYEES, LICENSORS, OR SERVICE PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF, OR IN CONNECTION WITH, THIS PRODUCT OR THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) OR OTHER LEGAL THEORY OF LIABILITY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.

SUBJECT TO THE FOREGOING, THE PRODUCT OWNER(S) GRANT A LIMITED, REVOCABLE, NON-EXCLUSIVE, NONASSIGNABLE, NON-TRANSFERABLE, NON-SUBLICENSEABLE LICENSE TO DOWNLOAD AND USE AND/OR ADD TO THIS PRODUCT TO THE EXTENT NECESSARY TO ACHIEVE INTEROPERABILITY WITH AUTOMATION ANYWHERE INC.’S ENTERPRISE SOFTWARE FOR THE DURATION OF THE APPLICABLE AUTOMATION ANYWHERE, INC. SOFTWARE LICENSE AGREEMENT (“AASLA”), PROVIDED THAT ALL COPYRIGHT OR OTHER PROPRIETARY NOTICES ARE KEPT INTACT, AND SUBJECT TO ANY ADDITIONAL TERMS PROVIDED BY THE PRODUCT OWNER(S). WHEN THE APPLICABLE AASLA TERMINATES, THE LICENSE GRANTED HEREIN ALSO TERMINATES, AND USE OF THE PRODUCT AND ANY OF THE PRODUCT’S EXISTING OR UNDERLYING DATA OR CODE MUST CEASE.