Terms of Service

Last Updated: June 10th, 2021

PLEASE READ THIS TERMS OF SERVICE (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND Copia Automation, Inc. (“COPIA,” “COMPANY,” “WE,” OR “US”).

By accessing or using https://www.copia.io/, or any other website with an authorized link to this Agreement (“Website”) or accessing or using any content, information, services, features or resources available or enabled via the Website or Copia’s browser extension(s) or desktop application(s) (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 7.6 (AUTOMATIC RENEWAL) BELOW.

SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”), which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.

Copia reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

Company, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property terminates the licenses granted by Company pursuant to the Agreement.
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1. Ownership of Intellectual Property; License Grants; Restrictions.

1.1 Each Party Owns its Intellectual Property.

(a) Except to the extent licenses are expressly granted hereunder, Copia and its licensors retain all right, title and interest in and to all Intellectual Property Rights in and to the Services.

(b) Except to the extent licenses are expressly granted hereunder, Licensee retains Intellectual Property Rights in and to (i) its products and services, and (ii) the Licensee Data.

1.2 License Grant: What Licensee Can Do with Copia’s Services. Subject to and in consideration of timely payment by the Licensee of the license fees hereunder, and of Licensee’s compliance with the other terms and conditions of this Agreement, Copia hereby grants to the Licensee and its Authorized Users, solely during the applicable term specified in an Order, a royalty free, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license to:

(a) in the case of a Copia Cloud Services Subscription, access and use the Product via the Internet address provided to Licensee by Copia solely from the Sites designated on the Order;

(b) in the case of a Licensee Hosted Services Subscription install, run and use the Product (solely from the Sites designated on the Order) for the number of Authorized Users for which Licensee has a current Subscription; and

1.3 Restrictions: What Licensee Cannot Do with the Services. Licensee agrees that it (and its Authorized Users) will not without express written permission of Copia:

(a) reverse compile, disassemble, decompile, reproduce, modify, adapt or create derivative works of, or from, the Services or any part thereof;

(b) make the Services available to, or use the Services for the benefit of, anyone other than Licensee or Licensee’s customers;

(c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering;

(d) permit direct or indirect access to, or use of, the Services in a way that circumvents any contractual usage limit;

(e) reproduce the Services or any part, feature, function or user interface thereof; or

(f) access or use any Services in order to build a competitive product or service.

1.4 License Grant by Licensee. Licensee hereby grants to Copia, solely during the applicable term specified in an Order, a non-exclusive, worldwide, royalty free license to use, reproduce, modify and perform the Licensee Data solely as reasonably required to operate and provide the Services.

1.5 Copia Can Use Data for Product Improvement. Copia shall have the right to collect and analyze information relating to the provision, use and performance of various aspects of the Services, and to (a) use such information and data for the purpose of analytics, to improve and enhance Services, and for other development, diagnostic and corrective purposes in connection with the Copia offerings, and (b) disclose such data to third party entities who may assist Copia with the activities listed in the foregoing clause solely in aggregate and de-identified form from which neither Licensee nor any Authorized User may be identified.

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1.4. Third-Party Websites. Company Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Company. Company is not responsible for any Third-Party Websites. Company provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or any product or service provided in connection therewith. You use all links in Third-Party Websites at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

2. Certain Terms Applicable only to Licensee Hosted Services.

Solely in the case of Licensee Hosted Services (and not Copia Cloud Services), the following terms shall also apply:

(a) Additional Licensee Rights. Licensee shall be entitled to make such back-up copies (“Backup Copies”) of the Product and Documentation as shall be consistent with Licensee’s usual policies for backup of its internal data. Any such Backup Copies shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Services. Backup Copies shall at no time be stored in a manner enabling them to be directly executed.

(b) Licensee Report; Additional Users. No later than 15 calendar days after the end of each calendar quarter during the Term (and after the Term with respect to the final Licensee Usage Report), Licensee shall deliver to Copia a report in writing and certified by an authorized agent of Licensee (the “Licensee Usage Report”) stating the actual number of Authorized Users and/or other metric as may be agreed by the parties on an Order during the just-ended calendar quarter (the “Reporting Period”). The Licensee Usage Report shall include a screenshot or screenshots to document all Active Users and/or Projects (as applicable), dated the last day of the applicable Reporting Period taken from Licensee’s systems console. If the actual number of Authorized Users and/or Projects (as applicable) for the applicable Reporting Period exceeds the number on Licensee’s original Order, then the fees for such Reporting Period will be adjusted accordingly, and Licensee shall pay Copia the adjusted balance based on Copia’s properly issued invoice. The additional per-Registered User and/or Project fee will be pro-rated based on the number of months left in the applicable subscription term, including all of the months for the calendar quarter applicable to the Licensee Usage Report. No downward adjustments will be made.

(c) Audit. Only upon Copia’s reasonable suspicion of Licensee’s material breach of this Agreement, and upon Copia’s notice to Licensee thereof, Copia may audit any relevant records during Licensee’s normal business hours, in a manner that will not unreasonably interfere with normal business operations and subject to the same confidentiality terms as set forth in this Agreement. Copia will give Licensee at least 7 days prior written notice of inspection, and will not conduct audits more than once per year, except in follow-up to the discovery of material discrepancies, in which case the audits may be conducted as reasonably necessary under the circumstances and no later than 30 days after discovery of the material discrepancy. All audits will be at Copia’s expense, unless the audit finds a material error resulting in underpayment by Licensee, in which case Licensee will pay for the audit.

(d) Effect of Termination. Upon termination of this Agreement, Licensee shall immediately uninstall or destroy all copies of the Product and Documentation in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Copia that the Licensee has complied with such obligation.

3.0 Certain Terms Applicable only to Copia Cloud Services.

Solely in the case of Copia Cloud Services (and not in the case of Licensee Hosted Services), the following terms shall also apply:

(a) Licensee and its Authorized Users will not (i) access the Services for, or upload to the Cloud Infrastructure, anything unlawful, misleading, malicious or discriminatory; or (ii) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Infrastructure, or prevent access to (or use of) the Cloud Infrastructure by Copia’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests, or any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure).

(b) Licensee is Responsible for its Authorized Users and Each of Their Accounts. Licensee shall provide accurate, current and complete information required to enable its Authorized Users on the Cloud Infrastructure, and shall maintain the accuracy of such information during the Use of the Services. Licensee shall require Authorized Users to maintain proper password security, and to keep their accounts confidential. Licensee is responsible for the actions of its Authorized Users, and of anybody accessing the Cloud Infrastructure using the credentials of any Authorized User (unless such access was due to Copia’s actions).

(c) Termination. This Agreement, and any Order or any license granted thereby, may be suspended or terminated by Copia upon its reasonable determination that Licensee’s use of the Services poses a threat to the secure or reliable provision of Services to other customers, or to the Cloud Infrastructure, or to the data contained therein.

4. Fees; Payments

4.1 Copia’s Right to be Paid Accrues on Delivery. Copia’s right to payment for the Services shall accrue on the date the Product is Delivered to Licensee. Except in the case of material breach of this Agreement by Copia, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.

4.2 Invoicing and Payment. Unless otherwise indicated in an applicable Order, payment of the License Fee is due within thirty days of Licensee’s receipt of an undisputed invoice. Any amount which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. If Licensee’s account is referred to a collection agent due to non-payment, Copia shall be entitled to reimbursement for reasonable costs associated with the collection of any past-due balance.

4.3 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated. Any taxes related to the Services licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Copia based on Copia’s income.

5. Warranties and Disclaimer

5.1 Subject to each of the other provisions hereof, Copia warrants solely to Licensee that during any paid Subscription term (the “Warranty Period”), the Product, when installed properly, will be capable of functioning in accordance with the Documentation.

5.2 The warranty provided in Section 5.1 will not apply if: (a) Licensee fails to notify Copia in writing during the Warranty Period of any such breach; or (b) Licensee fails to implement all Updates to the Product made available at no charge to Licensee during the Warranty Period.

5.3 If Copia breaches the warranty set forth in Section 5.1, Licensee’s sole and exclusive remedy, and Copia’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Copia, Copia will, at its expense, either: (a) repair or replace the defective Product to enable it to perform in accordance with the Documentation; or (b) if the Product as a whole does not function in accordance with the Documentation, terminate this Agreement and refund to Licensee the fees prepaid by Licensee to Copia for the defective Product for any period after the effective date of such termination.

5.4 Licensee Promises that the Licensee Data Doesn’t Violate Anyone’s Rights. Licensee represents and warrants that it has all rights that are necessary to grant Copia the rights granted under this Agreement, and that neither Licensee Data, nor the inclusion of Licensee Data in the Services, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or Applicable Privacy Law. Licensee further agrees that, unless the parties separately agree in writing, Licensee will not upload to the Services any Licensee Data or other information, other than Authorized User log-in credentials, which would qualify as personal information or personally identifiable information under any Applicable Privacy Law.

5.5 ALL OTHER WARRANTIES ARE DISCLAIMED BY BOTH PARTIES. EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

6. Indemnities

6.1 Indemnification of Licensee by Copia. Subject to each of the other provisions hereof, Copia shall (a) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that at the time of Delivery the Product infringes the copyright, trademark, or US patent of said third party (a “Claim”) and (b) indemnify Licensee against damages and costs (“Losses”) finally awarded against and payable by Licensee in any such Claim.

6.2 Exceptions. Copia shall have no liability to Licensee under this Section:

(a) to the extent any Claim is based on or arises from any Product or any portion or component thereof, that is: (i) not provided directly to Licensee by Copia; (ii) modified by a party other than Copia and not at Copia’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (iii) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;

(b) to the extent Licensee continues allegedly infringing activity after: (i) being notified thereof; and (ii) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or

6.3 Indemnification of Copia by Licensee. Licensee will defend or (at its option) settle, and indemnify Copia from and against any Losses, arising out of or relating to a breach of Licensee’s warranty in Section 5.4.

6.4 Despite any of the foregoing, each party’s obligations under Section 6 shall be valid only if the party requesting indemnification:

(a) gives notice to the indemnifying party of any Claim promptly upon becoming aware of the same;

(b) gives the indemnifying party the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and

(c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.

6.5. In the event of any alleged Intellectual Property infringement, Copia shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Product and Documentation; (b) make such alterations, modifications, or adjustments to the Product so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Product with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

7. Limitation of Liability

7.1 Indirect Damages Are Limited. EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 7.2, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Certain Damages Are Always Prohibited. IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR (a) ANY SPECIAL OR PUNITIVE DAMAGES, (b) EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER ANY LOSS OF PROFITS, LOST BUSINESS, OR LOST REVENUE, OR (c) THE USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, AND WHETHER OR NOT SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER.

7.3 Maximum Liability. EXCEPT IN THE CASES OF (a) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT (b) BREACH OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (c) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE (OR IN THE CASE OF LICENSEE’S LIABILTY, PAID PLUS OWED BUT UNPAID) TO COPIA UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER.

8. Confidentiality

All confidential information exchanged between the parties shall be subject to a separately negotiated and singed non-disclosure and non-use agreement.

9. Terms and Termination of Agreement and Orders

9.1 Term of Agreement. This Agreement (as opposed to Orders issued under this Agreement) shall begin on the Effective Date and shall continue in force for an initial term of one year unless validly terminated earlier. Thereafter, this Agreement shall automatically renew for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.

9.2 Term of Orders. Orders issued under this Agreement shall begin and end as specified in each such Order. Unless otherwise specified in an Order, Orders shall automatically renew at Copia’s then-current fees for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.

9.3 Termination. This Agreement and any Service Order may be terminated by either party upon notice if the other party breaches any material term or condition of this Agreement and fails to remedy the breach within thirty days after being given notice thereof.

9.4 Effect of Termination. Upon termination of this Agreement, Copia’s obligation to provide the Services will immediately cease, any and all licenses granted by Copia hereunder will immediately terminate, and all unpaid fees and other amounts due from Licensee for Services previously provided by Copia will immediately become due and payable. Despite the foregoing, the terms of this Agreement will continue to apply to any Order with a term that extends beyond the date of expiration or termination of the Agreement. In addition, for up to thirty days after expiration or termination of this Agreement, Licensee shall have the right (provided that Licensee has met all of its financial and other obligations under this Agreement) to have Copia furnish Licensee (at no additional cost) with an electronic copy of the Licensee Data, in a format reasonably agreed upon between the parties.

9.5 Survival. Sections 1.1, 1.3, 1.5, 2(b) (but only with respect to any final Licensee Usage Report), 3, 4, 5.4, 5.5, 6, 7, 9.4, 9.5, 10 and 12, all associated definitions, and all accrued rights to payment shall survive any termination or expiration of this Agreement.

10. Export Regulations

The Product is subject to U.S. export controls, including the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Product in violation of any export law or regulation, and Licensee affirms that it is not, and is not acting on behalf of, any person or entity on the Denied Persons List, Entity List, Unverified List or Military End User List as published by the U.S. Department of Commerce, Bureau of Industry and Security.

11. Privacy

Each party agrees to abide by all applicable laws and regulations in connection with providing the Services, including, without limitation, all Applicable Privacy Laws.

12. Miscellaneous

12.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions.

12.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time.

12.3 Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

12.4 Assignment and Sublicensing. Either may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Despite the foregoing, Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Copia as determined in Copia’s reasonable discretion. In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.

12.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in New York, New York, USA.

12.6 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.

12.7 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.

12.8 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.

13. No Publicity

A party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications only upon the written agreement (including by email) of the other party in each instance. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.