Robusta - Terms of Use

"Affiliate" means any entity that Controls, is Controlled by, or under common Control with either of the Parties, where "Control" means having the power, directly or indirectly, to direct or cause the direction of the management and policies of the entity, whether through ownership of voting securities, by contract or otherwise.

"Documentation" means the instructions, user guides, manuals, and release notes provided, or made available by Robusta, at any time, in printed and/or electronic form, that describe the installation, operation, use or technical specifications of the Software.

"Updates" means any unspecified updates, service patches, or releases made to the Software from time to time which may enhance or improve on existing features, or functions, modules, and technology which are generally made available by Robusta to its customers at no additional costs.

"Upgrades" any new version of the Software, service patches, or releases thereof which involve the addition of new features and/or new capabilities beyond the existing scope of the features and/or capabilities of the Software.

Account Registration.

In order to use the Services, Customer Admin must register and open an account through the Robusta Website, the Platform Website, or a command line tool provided by Robusta, depending on the specific portions of the Services you wish to use, or as otherwise directed by Robusta (the "Robusta Customer Account"). Registration may be performed in several manners which we may make available such as through certain credentials (e.g. name, email and password) or social login. We may allow Customer Admin and/or Customer End Users to invite other Customer End Users to join the Robusta Customer Account as end users associated with the Robusta Customer Account. A person receiving such invite from Robusta may choose to join the Robusta Customer Account or if such person is not yet a registered End User, s/he will be required to first register to the Robusta Software and open an End User account ("Robusta End User Account"). For the purposes of this Section 2.1 the Robusta End User Account may also be automatically created upon the provision of certain credentials or other sign-on mechanisms; by providing such credentials or utilizing such sign-on mechanisms you agree to the creation of your Robusta Account. The term "Robusta Account" will collectively refer to the Robusta Customer Accounts and/or the Robusta End User Accounts, as the case may be.

Customer Admin Permissions.

Customer Admin holds and may delegate different roles and permissions to Customer End Users as applicable, such as without limitation, designating other Customer End Users as Customer Admin, allowing certain view and configuration permissions, making payments and placing orders for the Services, etc.

Account Security.

You are responsible for maintaining the confidentiality of the login credentials (e-mail and password or any other access method implemented by Robusta) of your Robusta Account and for all activities that occur thereunder. You agree not to disclose your login credentials to any third party, and you are responsible for any use or misuse performed through your Robusta Account (including by any third party if you do choose to disclose these credentials). Robusta End User Account and the credentials to login thereto, are personal and may not be transferred to, used by, or shared with, any person that is not the specific End User who initially registered such specific Robusta End User Account, or otherwise, a Robusta End User Account may not be shared between individuals. We reserve the right to temporarily suspend or permanently terminate your Robusta Account if we determine that you or anyone on your behalf is using such accounts in a manner that violates these Terms.

Robusta Trial.

We may allow you to register for a free or paid trial of the Services and Software ("Trial"). Any Trials and any use thereof are governed by these Terms. You acknowledge that we may, in our sole discretion and at any time(s), add, remove, discontinue, edit or otherwise change any part of the Trials (either prospective or ongoing) and the Services made available under such Trials, without notice, and delete any User data provided in the scope of such Trials.

User Updates.

If you wish to modify your Robusta Account information, or if you wish to terminate your Robusta Account, you may do so by contacting Robusta support available at support@robusta.dev. Your Robusta Account will be terminated within a reasonable time following your request in accordance with the Privacy Policy, and from that date you will no longer be able to access your Robusta Account and the permissions, rights and licenses granted to you under these Terms shall terminate.

NOTE THAT TERMINATING YOUR ACCOUNT MAY CAUSE THE LOSS AND/OR UNAVAILABILITY OF CONTENT, FEATURES, OR CAPACITY WITH REGARD TO YOUR ROBUSTA ACCOUNT. ROBUSTA SHALL NOT BE LIABLE IN ANY WAY FOR SUCH UNAVAILABILITY AND/OR LOSS.

Robusta Intellectual Property.

Any proprietary and intellectual property rights in and to the Software including any content thereof, such as logos, graphics, icons, images, as well as the selection, assembly and arrangement thereof (the "Content") and related materials, Robusta's trademarks, trade names, copyrightable materials, designs, "look and feel," all whether or not registered and/or capable of being registered, and any and all Feedback as defined herein, but excluding any Product Data (Collectively, the "Robusta Properties"), are owned and/or licensed to Robusta or its Affiliates or licensors and are subject to copyright and other applicable intellectual property rights under Federal and state United States law, foreign laws and international conventions. In the event Customer (including via its Customer Admin or Customer End User) provides Robusta with any suggestions, comments or other feedback relating to the Services, or if Robusta, independently or via its third party service provider generates any knowledge in connection with its provision of the Services and any related services or the use thereof (collectively "Feedback"), whether such Feedback is provided or generated (as applicable) prior to, on or after the effective date. Customer hereby grants Robusta and/or its Affiliates a royalty-free, worldwide, irrevocable, perpetual, unlimited license to use such Feedback in connection with the Services; provided that such Feedback shall be aggregated and anonymized in such a way that it is not capable of being reverse engineered or traced back to Customer.

Your Use Rights.

Subject to your compliance with these Terms (including the payment of Fees, if any), and unless otherwise agreed in writing between you and Robusta, Robusta grants you a limited, worldwide, non-exclusive, non-assignable, non-tradeable, non-sub-licensable, right, to access and use, where you have purchased a subscription to use and access the Software or where you have registered for a free-tier subscription of the Software (if such is made available by Robusta), all as solely necessary for Customer's internal business purposes (each, a "Subscription") will be determined in the Order Form (as defined below) and shall include the contemplated period(s) of the Subscription (the "Subscription Period(s)"). If Customer wishes to extend the Subscription or the Subscription Period(s), such extension shall be subject to additional Order Form(s).

Subject to payment of the Subscription's fees ("Fees") which may be specified under a valid Order Form, the activation, access and use of the Software shall be enabled.

Robusta may make available Documentation to Customer for Customer's internal business purposes and solely in connection with the use of the Services during the Subscription Period(s). Customer may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered as Robusta's Confidential Information (as further defined). Unless the Documentation is separately referred to herein, all references in these Terms to the Software shall include the Documentation.

Additional Rights and Restrictions.

The Services are licensed, not sold. These Terms only gives Customer limited rights to use the Services as explicitly set forth in these Terms and Robusta (or its licensors as applicable) reserves all other rights not expressly granted in this Agreement in the Services. The Customer and Authorized Users may use the Services (and any related integrations and services) only as expressly permitted in this Agreement except if otherwise required under applicable law.

Restrictions on Use.

The Customer (and any Customer Admin or Customer End User operating on its behalf) agrees that it will not, and will not permit others to (i) work around any technical protections; (ii) copy, distribute, modify, publicly display, translate, infiltrate, hack, adapt, emulate, reverse engineer, compile, decompile, disassemble or reproduce the Services, integration or component, and/or any part thereof, or create any derivative work based thereon, nor attempt to do any of the forgoing; (iii) exceed the Subscription as specified in these Terms and applicable Order Form(s); (iv) test the Services or use the Services in connection with any benchmark tests or any other tests or comparisons of which the results are to be published in any form or media (other than internal benchmarking and evaluation for User's internal business purposes which is not precluded hereunder); (v) sublicense, transfer, publish or make available to the public or any third party, rent, lease or lend the Services or any part thereof; (vi) use the Services to operate a service bureau or subscription service or for commercial software hosting services; (vii) disclose or attempt to disclose the underlying intellectual property of the Services or any part of, or their sources by any means of dissemination; (viii) represent that Customer possess any proprietary interest in the Services; (ix) directly or indirectly, take any action to contest Robusta's (or its licensors) intellectual property rights in or in connection to the Services in any way; (x) use the Services or any of the Software output for the purpose of competing with Robusta; (xi) interfere with or disrupt the operation of the Services, or the servers or networks that host them or make the Services available; (xii) bundle, integrate, or attempt to integrate with the Services, any third-party software technology other than as expressly permitted in writing by Robusta; (xiii) infringe or violate any of the terms and conditions of this Agreement; or (xiv) use the Services for any unlawful purpose. You hereby agree that upon Robusta's request, you will immediately return and purge from your systems all materials and copies of the same, collected, created, or used in breach of these Terms.

Marks and Use of Robusta's Name.

These Terms do not grant you any rights in and to Robusta's trademarks or service marks. You will not remove or modify any markings or any notice of Robusta's proprietary rights.

Software Minimum Requirements.

You acknowledge and agree that the proper use of the Software may require one or more compatible hardware (e.g., mobile devices, tablets and/or PCs to allow its Users enter the Services), internet access, as further described in the applicable Order Form and/or Documentation provided by Robusta.

Verification and Reporting.

Solely with respect to Customer's compliance with these Terms, for the term of the Subscription Period and for one (1) year after its termination or expiration for any reason whatsoever, at Robusta's written request, and no more than once in each twelve (12) months' period (unless Robusta has a reasonable and good faith basis to conclude that a breach of these Terms or any Order Form by Customer has occurred or is occurring, in which case a request may be made by Robusta more than once annually), Customer shall provide Robusta with a signed statement verifying that the Services and Documentation are being used solely pursuant to the provisions of these Terms. At Robusta's prior written request and at a mutually agreed time, which shall be no more than once in each twelve (12) months' period (unless Robusta has a reasonable and good faith basis to conclude that a breach of the terms of these Terms or any Order Form by Customer has occurred or is occurring in which case an audit may be conducted more than once annually), Customer shall grant Robusta access to Customer's relevant records in order to audit the use of the Services and Documentation, solely to the extent necessary to ensure Customer's compliance with these Terms. Such audit should be conducted during Customer's regular business hours and without impairing Customer's business operations. If such audit establishes that Customer has used the Software or Documentation beyond the Subscription set forth in these Terms and in applicable Order Form(s), Robusta shall be entitled to charge Customer for the costs of performing the audit in addition to Robusta's standard price list for such additional use of the Software and Documentation.

Prior to and during the term of the Subscription Period under these Terms, either Party (a "Disclosing Party") may disclose or make available to the other Party (a "Receiving Party"), on or after the Effective Date, certain information regarding its technology, operations and business, including without limitation trade secrets and other information related to the products, software, data, intellectual property, know-how, or business of the Disclosing Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive ("Confidential Information"). Receiving Party agrees to use best reasonable industry measures to protect confidentiality and not disclose the Confidential Information to any third party or use any Confidential Information except as required to provide or use of the Services or the Software in the scope of the parties' engagement hereunder. Confidential Information shall not include information that Receiving Party can show by written evidence (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions known to Receiving Party, or (c) is publicly and generally available, free of confidentiality restrictions. Receiving Party shall not be prevented from disclosing Confidential Information pursuant to a binding court order or similar binding legal requirement for disclosure, provided that, unless otherwise prohibited by applicable law, Receiving Party provides Disclosing Party with prompt notice of such requirement and reasonably cooperates at the Disclosing Party's expense in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which is bound by written confidentiality obligations no less restrictive than those set out herein. Receiving Party shall in any event remain liable for any actions or omissions performed by its employees and service providers, as if performed by Receiving Party. Upon termination or expiration of this agreement for any reason or upon User's written request, Robusta shall return or permanently destroy all Product Data related to User in its possession.

Order Form.

We may require you to execute a purchase order to allow you access or to subscribe to the Services (the "Order Form"). An Order Form may specify and include, among others, the fees payable in consideration for your access to the Services (the "Fees"), the scope of the Services, subscription plan and term, termination rights, additional payment and billing terms. An Order Form may be executed in various ways (as we deem appropriate), including by click-accepting an Order Form displayed through the website or otherwise in an online form, or by mutual acceptance in writing.

Payment of Fees.

We may allow several means of payment such as bank transfer, payment through an online payment gateway, and other means we may make available from time to time. If we make online payment available through our Services such payment option is executed via third party payment clearance service providers or payment gateway providers, such as PayPal, Stripe, Paddle, etc. (the "Payment Services") that may be integrated and embedded in the Services. If you choose to proceed with an online payment, then you: (i) agree to review and be bound by the relevant Payment Services' terms of use and privacy policy; (ii) acknowledge that you may need to hold, or register, an active account at such Payment Services in order to complete a purchase and (iii) acknowledge that confirmation or rejection of your payment is not performed by Robusta. We are not responsible or liable for any activities or conduct of any Payment Services, and you agree to hold us harmless, and expressly release us, from any and all liability arising from or in connection with any payment activity performed on our Services.

Unless otherwise agreed between the Parties in an Order Form, all Order Forms are final and may not be cancelled or terminated for convenience by User or Customer. Either party may terminate an Order and/or this Agreement for cause with immediate effect if: (a) the other party breaches any material term or condition of an Order and/or this Agreement, and such breach (if curable) remains uncured thirty (30) days after date of a written notice of such breach, by the non- breaching party, or (b) the other party seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party and not dismissed within sixty (60) days thereafter. If the Customer terminates this Agreement in accordance with Section 5.3(a), Robusta will refund to the Customer any prepaid unused fees covering the remainder of the then-current Subscription after the effective date of termination. If Robusta terminates these Terms in accordance with Section 5.3(a), the Customer will pay any unpaid fees covering the remainder of the then-current Subscription after the effective date of termination. In no event will termination relieve the Customer of its obligation to pay any fees payable to Robusta for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise. Unless expressly stated otherwise in the applicable Order Form, each Subscription term shall automatically renew for successive periods equal to the initial Subscription term (or one (1) year, if not specified), unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Rights for EU/EEA Customers.

If the Customer is domiciled in a member state of the European Union or European Economic Area, and to the extent Customer is eligible with respect to the subject matter of the Agreement to rights is Regulation (EU) 2023/2854 (the "Data Act"), then the Customer may, at any time during the Term, request to switch to another data-processing service provider or to its own infrastructure by providing Robusta with written notice to support@robusta.dev, subject to a two (2) months prior notification period. Robusta shall provide reasonable assistance to facilitate such switching in accordance with applicable laws, including Data Act. Under the foregoing circumstances, following said Customer eligible request, the applicable Order shall automatically terminate at the end of the two-month notice period, and the Customer shall remain liable for all accrued and remaining Fees for the Term, which the parties acknowledge do not constitute switching charges under the Data Act. Robusta shall not impose any other fees or penalties in connection with such switching.

Unless otherwise set forth in an Order Form, any Fees owed by you to Robusta shall be paid to Robusta in advance of the provision of the relevant Services.

Unless otherwise specifically stated in the Order Form, any discounts provided will apply only to the specific term they were granted. Support and maintenance services and/or professional services are optionally available to Customer subject to payment of applicable Fees. Customer is responsible for payment of any taxes resulting from the acceptance of the Subscription or from the possession and use of the Services. If any taxes are required to be withheld at source and remitted to the authorized tax authority, Customer shall pay an amount to Robusta such that the net amount payable to Robusta after withholding of taxes shall equal the amount that would have been payable under these Terms if such withholding was not applied.

Robusta Privacy Policy.

We respect the privacy of our Users and are committed to protecting the personal information you share with us or that we collect in connection with your use of the Services. In the scope of the provision of the Services, certain personal data may be collected, processed, stored, and analyzed. Such personal data may be obtained directly from Customer End Users or Customer Admins (as data subjects) or from the Customer Admin or Customer where such personal data pertains to other Customer End Users, from our Visitors or from our service providers all in accordance with the Privacy Policy ("User Data"). By accessing or using the Services you agree to the Privacy Policy.

Authorization to share Product Data.

You hereby represent and warrant that you have the full right, permissions and consents to provide (or allow Robusta to collect) User Data and any other data and information you make available, through the Services (collectively, "Product Data") under these Terms. You further knowledge and agree that, unless expressly stated otherwise in the applicable Order Form, the Services are not intended for the processing of sensitive information or personal data ("Sensitive Data"), especially trade secrets, government identifiers, protected health information, payment card data, biometric data, or special categories of personal data as defined under applicable privacy laws such as the GDPR. The Customer shall use commercially reasonable efforts to minimize the inclusion of any such data in Product Data and to minimize processing Sensitive Data using the Services.

Use of Product Data.

You hereby grant Robusta a non-exclusive, assignable, non-transferable license to use Product Data you made available to us in the scope of your use or access to the Services (including for the collection, storage, processing, analysis, display, transfer, troubleshooting and creation of derivatives, thereof) for the purpose of providing and optimizing the Services to you and to the Customer with which your account is associated, as contemplated hereunder. Robusta will store and maintain Product Data for such period of time necessary for it to provide the Services to you or to Customer (as the case may be).

During the Term, Customer will be entitled to receive Robusta's standard customer support services and set-up services for the on-premises deployment if applicable (collectively, "Support Services") during CET normal business hours (9:00 a.m. to 5:00 p.m., Monday-Friday). Subject to additional Fees, Customer may be entitled to receive enhanced Support Services in the event such are included under the applicable Order Form. The Support Services will require Customer to work with Robusta to set up the Software and troubleshoot and provide information related to Customer's network and systems in order to allow Robusta to provide such Support Services. Customer acknowledges that Robusta shall not be liable for failure to provide Support Services if Customer chooses not to grant Robusta such access or such information.

Unless otherwise indicated in the Order Form, the Support Services do not include, however, any configuration, integration, customization, training, or other professional services ("Professional Services") with respect to the Services. If Customer desires to receive any Professional Services, such Professional Services shall be governed by a separate professional service agreement to be agreed upon in writing between the Parties or as described in the Order Form.

Third-Party Components and Services.

Robusta may include with or embedded in the Software (as necessary or advisable for the operation of the Software) certain third-party software components licensed under free or open-source licenses (collectively "Third-Party Components") as part of the Software. Such Third-Party Components are delivered as part of the Software and they are subject to any applicable acknowledgments and license terms accompanying such Third-Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third-Party Components and these Terms, the licensing terms of the Third-Party Components shall prevail only in connection with the related Third-Party Components. Without derogating Robusta's warranties under section 9, Robusta disclaims all liability related to any Third-Party Components utilized in the Software. You acknowledge that Robusta is not the author, owner, or licensor of any Third-Party Components and that Robusta makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance, or suitability of Third-Party Components. Under no circumstances shall the Software or any portion thereof (except for the Third-Party Components contained therein) be deemed to be "open source" or "publicly available" software.

Without derogating from the foregoing, the Services include artificial intelligence and machine learning functionalities, provided by third-party platforms (collectively, "AI Tools"). Such AI Tools made available through certain features or components of the Services, which process Customer inputs and generate outputs, responses, or recommendations (the "Output").

You acknowledge and agree that the Output is generated automatically based on Customer inputs and inherent model behavior, and may be inaccurate, incomplete, or otherwise unsuitable. Customer and its Customer End User(s) are responsible for reviewing and validating any prior to use and for any decisions or actions taken in reliance thereon. Company does not warrant that any Output will be accurate, complete, or fit for any particular purpose, and shall not be liable for decisions made by Customer based solely on such Output without appropriate human review.

We will not use or process any Product Data to train AI Tools as specified under section 9.2 below.

Customer (and any person operating on its behalf hereunder) and/or User represents it is compliant and cause anyone on its behalf to comply with all applicable laws, rules, regulations, and guidelines relating to the use of the Services under these Terms or any part thereof (and the Services hereunder may be deemed as "commercial computer software" and "commercial computer software documentation" pursuant to applicable regulations). The Customer further agrees not to engage in any illegal activity. The Customer also acknowledges that Robusta reserves the right to notify its customers or appropriate law enforcement in the event of such unlawful activity. Both Parties shall comply with the U.S. Export Administration Regulations and any other applicable export laws, restrictions, and regulations to ensure that the Services and any technical data related thereto are not exported or re-exported directly or indirectly in violation of or used for any purposes prohibited by such laws and regulations.

Without derogating from the foregoing, Robusta shall: (i) process Product Data in accordance with applicable data protection and privacy laws; (ii) ensure that, as between Robusta and Customer, Customer retains all rights, title, and interest in and to Product Data submitted to the AI Tools; (iii) not use Product Data submitted to or processed by the AI Tools to train, retrain, or fine-tune general-purpose artificial intelligence or machine learning models, and not make such Product Data available to other customers or share it with third parties for the purpose of training artificial intelligence or machine learning models; (iv) implement commercially reasonable technical and organizational measures designed to protect Product Data processed by the AI Tools and to maintain logical separation between Product Data and data of other customers; (v) provide, upon reasonable request and to the extent required by applicable law, general information regarding the functionality of the AI Tools, subject to Robusta's confidentiality and security obligations; and (vi) use commercially reasonable efforts to provide the AI Tools in compliance with applicable laws and regulations.

Limited Software Warranty.

Robusta warrants, for Customer's benefit alone, that the Software provided by Robusta, if operated as directed and in accordance with the Documentation and herewith, shall operate substantially in accordance with the express functional specifications in the Documentation. Robusta warrants that it has the requisite authority to execute, deliver, and perform its obligations under these Terms and that doing so will not violate any preexisting contracts or agreements.

DISCLAIMERS.

THE SOFTWARE IS COMPLEX COMPUTER SOFTWARE. ITS PERFORMANCE WILL VARY DEPENDING ON THE USERS DEVICES, HARDWARE PLATFORM, SOFTWARE INTERACTIONS, THE CONFIGURATION OF THE SOFTWARE AND OTHER FACTORS. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, THE SOFTWARE IS NEITHER FAULT TOLERANT NOR FREE FROM ERRORS, CONFLICTS, OR INTERRUPTIONS AND ROBUSTA DOES NOT WARRANT OR GUARANTEE THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE ERROR-FREE, THAT CUSTOMER'S USE OF THE SOFTWARE WILL BE UNINTERRUPTED, THAT IT WILL BE COMPATIBLE WITH ALL OF CUSTOMER'S EQUIPMENT OR SOFTWARE CONFIGURATIONS OR THAT ROBUSTA WILL CORRECT ALL ERRORS IN THE SOFTWARE. IN ADDITION, NOTWITHSTANDING ANYTHING TO THE CONTRARY, ROBUSTA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR PROBLEMS CAUSED BY MODIFICATIONS OR CUSTOMIZATIONS TO THE SOFTWARE MADE WITHOUT ROBUSTA'S WRITTEN APPROVAL. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION ‎‎10.1 ("LIMITED SOFTWARE WARRANTY") ABOVE THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED "AS-IS", AND ROBUSTA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. ROBUSTA DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES AND/OR SOFTWARE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICES, INCLUDING USE OF AND/OR RELIANCE ON ANY CONTENT AVAILABLE THEREIN, IS ENTIRELY, OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK

Exclusive Remedies.

For any breach of the warranties contained in Section ‎‎10.1 (Limited Software Warranty), Customer's exclusive remedy, and Robusta's entire and sole liability under these Terms, shall be to use reasonable commercial efforts to repair or replace the Software so that it operates as warranted; provided that (i) Customer has fully paid all due Fees, (ii) Customer is not otherwise in breach of these Terms, and (iii) Customer has reported in writing to Robusta the claimed failure promptly upon discovery. If Robusta is unable to repair or replace the Software within thirty (30) days of receiving such notice from Customer, either Party will be entitled to terminate these Terms and Robusta will refund any prepaid unused Fees covering the remainder of the current Subscription Period(s) after the effective date of termination. Robusta may disclaim any obligation or liability under this Section ‎‎10 ("Software Warranty; Disclaimers") if the Software has been: (i) altered, modified, or serviced other than by Robusta; (ii) used in a manner other than as specified in the Documentation; or (iii) if Customer violated the Subscription's scope and/or the restrictions set forth under Section ‎‎3 ("Ownership; Right to Use; Restrictions on Use") hereto. The warranty shall not apply if the Software is used in any manner other than the unmodified version of the Software as was designed to be used as described in the Documentation or on the applicable Order Form.

Robusta Indemnification.

Solely with respect to a paying Customer subject to a non-free-tier Subscription, Robusta shall defend, indemnify, and hold Customer harmless at Robusta's sole cost and expense, for any third party claim, suit, expenses, damages, or proceeding brought against Customer which alleges that the Software, as delivered and used in accordance with the terms of these Terms, infringes any third party patent, copyright, or other intellectual property right (a "Claim"). Robusta will pay the amount of any final judgment or settlement of such Claim awarded against Customer, provided that Customer gives Robusta written notice promptly upon becoming aware of such Claim or threat of Claim, including full information and reasonable assistance in its defense or settlement and allows Robusta to assume full control of the defense and settlement of such Claim, provided that any settlement intended to bind Customer shall not be final without Customer's prior written consent, which consent shall not be unreasonably withheld. This Section ‎‎11 ("Indemnification") is the sole and exclusive remedy of Customer in connection with any Claim.

Customer Indemnification.

Except to the extent such liability, claim, loss or damage resulted from Robusta's gross, negligence, fraud or willful misconduct, you release, and agree, at your own expense, to indemnify, defend and hold harmless Robusta, our officers, directors, employees, agents and affiliates, from and against any third party claims, alleged claims, loss and damages, (including reasonable attorney's fees) arising out of or related in any way to your Product Data, including claims concerning privacy or intellectual property rights. We will provide you with written notice of such claim, suit or action and we will allow you to assume exclusive defense and control of any matter subject to indemnification by you hereunder as long as you conduct such defense diligently.

Limitations on Indemnity Obligations.

Robusta shall have no liability for any claim of infringement based upon: (i) modification of the Software not approved by Robusta; (ii) use by Customer of a superseded or altered release of the Software or Documentation if such infringement would have been avoided by the use of a current unaltered release of the Software or Documentation that Robusta made available to Customer; (iii) the combination, operation or use of the Software furnished under these Terms with software or hardware not furnished or approved for such combination, operation or use by Robusta if the infringement would not have arisen but for such actions.

Remedies.

Without in any way limiting Robusta's obligations to indemnify and defend Customer under Section ‎‎11.1 (Robusta Indemnification), if an injunction is obtained (or may be obtained according to Robusta's full discretion) in such action against Customer's use of the Services, Robusta may, at its option and expense, either: (i) obtain for Customer the right to continue to use the Services; (ii) replace the Services with a product with substantially equivalent functionality; or (iii) modify the Services so that it becomes non-infringing while maintaining substantially equivalent functionality. If (i), (ii) or (iii) above are not commercially practical, then Robusta may elect, as Customer's sole remedy, to give Customer a refund of prepaid Fees on a prorated basis from the date the Software became unavailable for Customer's use and shall be entitled to terminate these Terms and any Order Form.

(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR A PARTY'S LIABILITY RESULTING FROM EVENT OF GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), NITHER PARTY OR ANY OF THEIR AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, OR DATA ARISING IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SOFTWARE SUPPORT SERVICES OR PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. (B) WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, AND CONTRACTORS FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO ROBUSTA UNDER THE APPLICABLE ORDER FORM (IF ANY) THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITYTHE FOREGOING LIMITATION UNDER PARAGRAPH (B) SHALL NOT APPLY TO (I) EITHER PARTY'S LIABILITY UNDER ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 BELOW AND (II) CUSTOMER'S LIABILITY IN THE EVENT OF BREACH OF THE SECTION 3.5.2 ("RESTRICTIONS ON USE") (III) CUSTOMER'S PAYMENT OBLIGATIONS FOR SERVICES RENDERED; AND (IV) A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD IN RELATION TO THIS AGREEMENT.

Upon termination or expiration of this Agreement Customer must within thirty (30) days thereafter cease using the Software and Documentation and promptly return or destroy the Software, Documentation, and any copies thereof (in all forms, partial and complete, in and on all types of media and computer memory, and whether or not modified or merged into other materials) to Robusta or certify in writing that it has been destroyed. This requirement applies to copies of the Software and Documentation, and either Party shall return to the other Party and purge its systems from any Confidential Information of the other Party it holds or has access to and certify of the same in writing by an authorized officer of either Party.

You must be at least eighteen (18) years of age to use the Services. By using the Services and agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; or (ii) that you are the legal guardian of the User under the age of eighteen (18) and both you and the User have read and agreed to these Terms and approved of the User's continued use of the Services subject to these Terms; (iii) that you have not previously been suspended or removed from the Services; and (iv) that your use of the Services is in compliance with any and all applicable laws and regulations .

Except as otherwise set forth in Section 16, this Agreement may be amended only by a written document duly signed by the authorized representatives of both Parties.

Robusta may change these Terms from time to time, at its sole discretion by posting a revised version at https://home.robusta.dev/terms-of-use-for-robusta. Unless otherwise specified by Robusta in the applicable Order Form, changes become effective for Customer upon renewal of the then-current subscription term or upon the effective date of a new Order Form after the updated version of these Terms goes into effect.

Section 3, 4, 5.3, 5.4, 6, 10.3, 11, 12, 13, 20.2 and 20.5 shall survive termination or expiration of this Agreement for any reason.

Robusta may include the Customer's name and logo in its customer lists, website, and marketing materials, consistent with any Customer brand guidelines. Robusta shall remove any use of the Customer name and logo upon written request.

Neither Party shall be liable for any delay or failure in the performance of its obligations under this Agreement (except for payment obligations) to the extent caused by events or circumstances beyond its reasonable control, including acts of God, war, terrorism, civil unrest, cyberattacks, internet or telecommunications failures, power outages, embargoes, sanctions, or government actions of general application (each, a "Force Majeure Event"). The affected Party shall promptly notify the other Party of the occurrence and expected duration of any Force Majeure Event and shall use commercially reasonable efforts to mitigate its effects and resume performance as soon as practicable.

Severability.

In the event any provision or part of these Terms is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal, and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.

Independent Contractors.

Nothing in this Agreement shall be construed to mean a relationship of agents, partners or joint venture between the parties. The parties are independent contractors.

Waiver.

No waiver of any breach of these Terms will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party. The failure of either Party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

Entire Agreement.

These Terms, including any referenced written addenda, Order Forms and exhibits constitute the entire agreement between the Parties and supersede all previous agreements or representations, written oral, with respect to its subject matter.

Governing Law and Jurisdiction.

The validity, interpretation, and performance of these Terms shall be controlled by and construed under the laws of the State of New York as if performed wholly within New York and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts located in New-York to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter. The Parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms.

Headings.

The paragraph headings in these Terms have been inserted merely for convenience and shall not affect the rights and obligations of the Parties or the meaning of the language in these Terms.

Assignment.

Neither Party may assign, sublicense or otherwise transfer any or all of your rights or obligations under these Terms, without the other Party's prior express written consent, except in connection with a merger, reorganization, sale or acquisition of all or substantially all the shares or assets of the applicable Party (in which case no consent shall be required). Any purported assignment contrary to this section shall be void.