This Customer Agreement, including our Privacy Policy (available at: www.bearrobotics.ai/privacy), which is incorporated herein by reference (together, this “Agreement”), is a legally binding contract between you and Bear Robotics, Inc. (“Bear,” “us,” “we,” or “our”) regarding your use of the Products. References to “Customer,” “you”, and “your” refer to the individual accepting this Agreement, executing or otherwise entering into an Order Form, or otherwise using the Products. If the Products are being used on behalf of a company, organization, or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to such entity and its Affiliates. If you are a company, organization, or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. The effective date of this Agreement (“Effective Date”) is the effective date of the Order Form. 

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY ACCEPTING THIS AGREEMENT THROUGH THE EXECUTION OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE PRODUCTS, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE PRODUCTS. YOUR USE OF THE PRODUCTS, AND OUR PROVISION OF THE PRODUCTS TO YOU, CONSTITUTES AN AGREEMENT BY US AND BY YOU TO BE BOUND BY THESE TERMS.

YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF US AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE PRODUCTS. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.  

If Customer purchases Products from an authorized distributor or reseller of Bear (“Reseller”), Customer’s use of the Products will be governed by this Agreement, subject to Section 10.15 below. 

1. DEFINITIONS

1.1 “Affiliate” means an entity directly or indirectly owned or controlled by a Party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

1.2“Authorized Purpose” means the Customer’s business or personal use (or such other uses as may be agreed to by the Parties in writing) and not for resale by Customer (as further specified in the Order Form).

1.3“Authorized Site” means the location and/or facility where the Robotic Solution will be deployed as specified in the Order Form.

1.4 “Confidential Information” means any and all technical and non-technical information either Party provides to the other Party that is marked or otherwise identified at the time of disclosure as confidential or, due to its nature or the circumstances of its disclosure, would reasonably be regarded as being confidential. Confidential Information concerning the Products, Services, and Solution Subscriptions will be the Confidential Information of Bear.

1.5 “De-Installation Services” means disassembling, de-installing, removing, and/or de-activating the Products and repossessing the Products from the Customer at the Authorized Site.

1.6 “Deployment Services” means certain installation, configuration, activation, and training services provided by or on behalf of Bear to the Customer at the Authorized Site.

1.7 “Intellectual Property Rights” means any and all now known or hereafter existing (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights, trade dress and similar rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) layout rights, design rights, and other proprietary rights of every kind and nature; and (vi) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.8 “Order Form(s)” means an order for Products and/or Solution Subscriptions referencing this Agreement that is executed by the Parties or that Customer completes through a Bear-provided online order flow. 

1.9 “Patron(s)” means Customer’s patrons, visitors, customers, guests, or other third parties who visit, access, or otherwise enter the Authorized Site.  

1.10 “Product(s)” means the Robotic Solution, the Rules, and the Accesory(ies).

1.11 “Robotic Solution” means the Robot(s) and certain of Bear’s proprietary hardware, equipment, components, Software, cloud services, and other technology which are provided, or otherwise made available, by Bear to Customer pursuant to a Solution Subscription. The Robotic Solution does not include Accessories.   

1.12 “Robot(s)” means Bear’s proprietary, self-driving Servi robot(s). 

1.13 “Rules” means any and all guidelines, materials, literature, and documentation relating to the Products that are provided or otherwise made available by Bear to Customer (each of which may be amended by Bear from time to time in its sole discretion).

1.14 “Services” means, collectively, the Deployment Services, De-Installation Services, and the Support Services. 

1.15 “Software” means the pre-installed software that is embedded or otherwise incorporated into the Robots. 

1.16 “Solution Subscription(s)” means a subscription to the Robotic Solution, Accessories, and/or Support Services purchased by Customer for a Subscription Term (as more specifically set forth in an Order Form).   

1.17 “Subscription Term” means the term of the Solution Subscription as identified in an Order Form. 

1.18 “Support Services” means the support and maintenance services for the Robotic Solution and Accessories which are provided by Bear to Customers (as more specifically set forth in Section 4.4).

 1.19 “Termination Fee” means the amount specified in the Order Form to be paid by Customer in accordance with Section 5.3. 

1.20 “Usage Data” means any data and information generated or otherwise collected by Bear or the Robotic Solution relating to the Customer’s use, operation, deployment, or implementation of the Products (including, without limitation, images and recordings of Patrons). 

2. LICENSE GRANTS; INTELLECTUAL PROPERTY

2.1 Products. Subject to Customer’s compliance with the terms and conditions set forth herein and in the Rules, Bear hereby grants Customer, during the Subscription Term, a non-exclusive, non-transferable (except in accordance with Section 10.3), non-sublicensable, and royalty-free license to access and use the Products provided or otherwise made available by Bear to Customer pursuant to Customer’s Solution Subscription solely at the Authorized Site and for the Authorized Purpose (provided that, with respect to Software, Customer (i) may only use the Software as embedded or otherwise incorporated in the Robot and for the sole purpose of using the Robot as expressly permitted in this Agreement and in the Rules, and (ii) may not extract or copy Software for any reason). 

2.2 Restrictions. Except as expressly set forth in this Agreement or otherwise with the prior written consent of Bear, Customer will not and will not permit any third party to: (i) copy, modify, or create derivative works or improvements of the Products; (ii) rent, lease, lend, resell, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Products available for use by any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Robotic Solution in whole or in part (except to the extent otherwise permitted by applicable law); (iv) bypass or breach any security device or protection used by the Robotic Solution; (v) input, upload, transmit, or otherwise provide to or through the Robotic Solution, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, malware, or other harmful code; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the information technology infrastructure used by or on behalf of Bear to provide or otherwise make available the Robotic Solution, including all computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Bear or through the use of third-party services; (vii) access or use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other proprietary right of any third party, or that violates any applicable law; (viii) access or use the Products for purposes of competitive analysis of the Products, the development, provision, or use of a competing products and/or services or any other purpose that is to Bear’s detriment or commercial disadvantage; (ix) access or use the Products for purposes other than the Authorized Purpose or beyond the scope of the authorization granted under this Agreement (in each case, any such attempt will be immediately null and void); (x) remove any copyright or other intellectual property or proprietary notices contained on or incorporated into the Products; or (xii) move, remove, relocate, uninstall, or transfer the Products from the Authorized Site.

2.3 Usage Data. Bear and the Robotic Solution collect, generate, and derive Usage Data for Bear’s business purposes, including to: (a) provide Support Services; (b) monitor the performance and stability of the Robotic Solution; (c) prevent or address technical issues with the Robotic Solution; and (d) improve the Products and develop derivative and new products and services. Customer will not interfere with the collection of Usage Data. As between the Parties, Bear exclusively and solely owns all right, title, and interest, including all Intellectual Property Rights in and to, the Usage Data, the know-how and analytical results generated in the processing of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Bear products and/or services made based on the Usage Data. Customer hereby assigns to Bear all of Customer’s right, title, and interest in and to the Usage Data, including all related Intellectual Property Rights. Bear will not use or disclose Usage Data in any manner that identifies Customer.

2.4 Customer Trademarks; Publicity. Neither Party may make any public announcement relating to this Agreement except with the other Party’s prior written consent or as required by applicable laws. Notwithstanding the foregoing, during the Term, Customer hereby grants Bear a worldwide, non-exclusive, royalty-free, fully paid-up, and irrevocable license to use Customer’s trade name, company name, trademarks, logos, and service marks in connection with Bear’s sales, marketing, advertising, and promotional activities and materials (including, without limitation, to identify Customer as a customer of Bear).  

2.5 Feedback. Customer may, but is under no obligation to, provide Bear with suggestions, comments, input, and other feedback (“Feedback”) regarding the Products. To the extent any such Feedback is provided by Customer to Bear, Customer hereby grants Bear an unrestricted, perpetual, irrevocable, non-exclusive, fully paid-up, royalty-free right and license to exploit the Feedback in any manner and for any purpose without payment or restriction, including to improve the Products and to create other products and services. Bear will have no obligation to provide Customer with attribution for any Feedback provided by Customer.  

2.6 Third Party Components. The Products may include or incorporate third-party products, materials, information, or intellectual property (“Third-Party Components”). Third-Party Components are owned by third parties and not by Bear and may be provided to you under terms and conditions that are in addition to and/or different from those contained herein (including as may be more specifically set forth in the Rules). Although the Products are provided to Customer subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict, Customer from obtaining Third-Party Components under the applicable third-party licenses or limiting Customer’s use of Third-Party Components under those third-party licenses. Customer’s use of any Third-Party Components will at all times be governed by, and subject to, the applicable third-party licenses and, in the event of a conflict between this Agreement and such third-party licenses, the terms and conditions of such third-party license will control. The Products may include code and components licensed under an open-source license, as may be further described in the Rules.

2.7 Reservation of Rights. Except for the limited license rights expressly granted herein, Bear and its suppliers, licensors, and vendors have and will retain all right, title and interest in and to the Products and all modifications, enhancements, and improvements to, and derivative works based upon, the foregoing, in each case, including all related Intellectual Property Rights. Customer will acquire no right, title, or interest in and to the Products other than the limited license rights expressly granted herein. 

2.8 Modifications to Products. Bear reserves the right to modify or discontinue Products at any time (including by limiting or discontinuing certain features or functionality of the Products), temporarily or permanently, without notifying Customer (except that Bear will provide Customer with thirty (30) days’ prior notice in the event of any deprecation of any material feature or functionality of any part of the Products). Bear will have no liability for any change or modification to Products or any suspension or termination of access to or use of them as a result thereof. 

3. DELIVERY; DEPLOYMENT SERVICES

3.1 Availability. Purchases of Products are subject to estimated availability, but please note that availability of Products cannot be guaranteed. Bear reserves the right to impose quantity limits on Products to be purchased. 

3.2 Delivery; Title; Risk of Loss. Unless otherwise agreed to by Bear in writing, the Robots and Accessories provided by Bear to Customer under Customer’s Solution Subscription will be delivered Ex-Works Bear’s facility (INCOTERMS 2020). The Robots and Accessories provided by Bear under a Solution Subscription are leased and not sold to Customer and nothing in this Agreement will be deemed to give Customer any right or option to purchase such Robots and Accessories. Bear will at all times retain title to the Products, and risk of loss in the Robots and Accessories provided by Bear to Customer pursuant to a Solution Subscription will transfer to Customer upon placing them for shipment with a common carrier. During any period of time that the Robots and Accessories provided by Bear under a Solution Subscription are within Customer’s possession, control, or care, Customer will be solely responsible for any loss of, or damage to, such Robots and Accessories (except for ordinary wear and tear), and Customer will compensate Bear for the same (not to exceed the full replacement cost of the Robots or Accessories). 

3.3 Estimated Dates. Any dates or times provided by Bear (including, without limitation, shipping or delivery dates or the date upon which Deployment Services or De-Installation Services are to be performed by or on behalf of Bear) are estimates only and may be subject to change in Bear’s sole discretion. Bear will not be responsible or liable for any delays or changes in its performance of its delivery obligations expressly set forth in this Section 3. 

3.4 Deployment Services. Bear will use commercially reasonable efforts to perform Deployment Services at the Authorized Site on a date mutually agreed to by the Parties in writing. Customer will be solely responsible for preparing the Authorized Site and/or any equipment, infrastructure, and facilities required for Customer’s use of the Products prior to Bear’s performance of the Deployment Services and any failure to do so may result in delays or additional charges being assessed for such delays. 

4. REPRESENTATIONS AND WARRANTIES; SUPPORT SERVICES

4.1 General. Each Party represents and warrants to the other Party that: (i) it is a corporation, limited liability company, or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation; (ii) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (iii) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (iv) the execution of this Agreement by its representative whose signature is set forth below has been duly authorized by all necessary action of the Party; and (v) when executed and delivered by each Party, this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with the terms and conditions set forth herein.

4.2 By Customer. Customer represents and warrants to Bear that: (i) it will provide all notices to, and obtain all necessary and sufficient consents, authorizations, permissions from, third parties (including from the landlords of the Authorized Site) that are required for the performance of the Deployment Services and De-Installation Services; (ii) it will at all times comply with all applicable federal, state and local laws, statutes, orders, codes and regulations (including, without limitation, applicable health codes and privacy regulations); (iii) it will not, and will not allow any third party, to directly or indirectly subject any Products provided to Customer in connection with a Solution Subscription to any mechanic’s lien, encumbrance, or other security interest; and (iv) it has provided all notices to, and obtained all necessary and sufficient consents, authorizations, and permissions to display, record, publicly perform, exhibit, transmit, broadcast, reproduce, modify, alter, edit, adapt, create derivative works, exploit, and otherwise use the name, image, likenesses, appearance, and voice of all Patrons in connection with Bear’s use of Usage Data and as necessary for Bear to exercise its ownership rights in the Usage Data.

4.3 By Bear. Bear represents and warrants to Customer that (i) the Robotic Solution and the Accessories will, during the Subscription Term, materially conform to the performance, functional, and operational requirements set forth in this Agreement and in the Rules (“Performance Warranty”), and (ii) the Services performed by Bear will be performed (1) using personnel of commercially reasonable skill, experience and qualifications and (2) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. In the event of any breach or non-fulfillment of the Performance Warranty, Bear’s sole and exclusive obligation and Customer’s sole and exclusive remedy is for Bear to perform the Support Services in accordance with Section 4.4. In the event of any breach or non-fulfillment of the warranty set forth in Section 4.3(ii) above, Bear’s sole and exclusive obligation and Customer’s sole and exclusive remedy is to reperform the Services at no additional cost to Customer.       

4.4 Support and Maintenance. Subject to Section 4.5 and Customer’s compliance with the terms and conditions set forth herein and in the Rules, Bear will use commercially reasonable efforts to provide Customer, during the Subscription Term, with the following technical support and maintenance services for any failure of the Robotic Solution or the Accessories to substantially conform to the Performance Warranty (each an “Error”): (i) diagnosing and rectifying a defect (or combination of defects) in the Robotic Solution or the Accessories; (ii) replacing, correcting, or modifying components of the Robotic Solution or Accessories that are damaged due to normal wear and tear; and (iii) providing updates, bug fixes, enhancements, new releases, new versions, and other improvements to the Software that Bear provides at no additional charge to other similarly situated customers (“Updates”). All Updates are deemed to be Software for purposes of this Agreement.  

4.5 Exclusions. The Performance Warranty will be void and Bear will have no obligation to provide Support Services to the extent an Error is caused by or arises from any of the following: (i) the Robot is moved, relocated, transferred, removed, or uninstalled from the Authorized Site; (ii) modifications or alterations made to the Robotic Solution or Accessories other than as authorized by Bear in writing; (iii) failure to use or implement Updates provided or otherwise made available to Customer by Bear; (iv) improper, unauthorized, or negligent maintenance, storage, or repair of the Robotic Solution or Accessories; (v) the combination, operation, or use of the Robotic Solution or Accessories with software, hardware, or other technology not provided by Bear or not approved for use in connection with the Robotic Solution or Accessories; (vi) failure to perform all routine maintenance on the Robotic Solution or Accessories as described in the Rules; (v) failure to store the Robot or Accessories using appropriate and reasonable safety precautions to protect them against damage, theft, or loss; (vi) failure to conform the Authorized Site to all applicable specifications, including with respect to physical characteristics, obstructions, technical infrastructure, and the availability of power, in each case as set forth in the Rules or otherwise specified by Bear; or (vii) failure to use the Robotic Solution or Accessories in accordance with this Agreement or the Rules. 

4.6 Support Services Requests. If, during the Subscription Term, Customer identifies an Error, please submit a request for Support Services by contacting Bear at support@bearrobotics.ai, which will include: (i) a short description of the Error (along with reasonable supporting documentation), (ii) the serial number of the Robot, and (iii) any other information that may be relevant for Bear to evaluate the Support Request (“Support Request”). Support Requests should only be submitted to Bear and not to any third party (including Resellers).  Bear will use commercially reasonable efforts to respond to your Support Request, but Bear cannot guarantee that any Support Requests will be responded to within any particular time frame. Upon Bear’s receipt of a Support Request, Bear will determine, in its sole discretion, whether the Error is eligible for coverage under the Performance Warranty. If the Performance Warranty is voided or the Robotic Solution or Accessory at issue is not otherwise eligible for coverage, Bear will notify Customer of Bear’s determination and provide Customer with an explanation for the denial of coverage. Bear will take any remedial action as it may determine in its sole discretion to resolve Errors that are eligible for coverage under the Performance Warranty, including repairing the Robotic Solution or Accessory or providing a replacement Robot or Accessory that complies with the Performance Warranty. The Robotic Solution or Accessories covered by the Performance Warranty may need to be returned in order for Bear to replace or repair the Robotic Solution or Accessory and Bear will provide Customer with instructions on how to correctly process any such return, as well as any other obligations that may be required by Customer in connection therewith. There will be no additional charge to Customer for processing any such return (except for any applicable taxes that may apply). Once the Robotic Solution or Accessories are repaired or replaced, Bear will perform Deployment Services at no additional cost to Customer if required to re-install the Robotic Solution at the Authorized Site. Bear reserves the right to use new, used, or refurbished parts, components, or materials to repair the Robotic Solution or Accessories; provided that such parts, components, or materials are functionally equivalent to those which are used in the Robotic Solution or Accessories subject to an Error and do not materially degrade the performance or operation of such the Robotic Solution or Accessories. Any Robotic Solution or Accessories repaired by Bear in accordance with this Section 4.6 will continue to be eligible for coverage under the Performance Warranty through the remainder of the Subscription Term. Certain Support Services are performed remotely, including, without limitation, conducting diagnostic tests and rebooting certain components of the Robotic Solution, and require a stable Internet connection. To the extent that an Error is unable to be resolved through Bear’s provision of remote Support Services, Bear may dispatch its service personnel to perform on-site Support Services to resolve the Error at no additional charge to you at a mutually agreeable date and time.  

4.7 Internet Connectivity. Customer acknowledges and agrees that certain features and functionalities relating to the Robotic Solution may only be accessible to Customer if the Robotic Solution maintains a stable connection to the Internet (including the installation of Updates). If you discontinue your use of, or fail to perform any of your obligations with respect to, the Products (including, without limitation, failing to pay any fees under this Agreement) or are unable to maintain a stable Internet connection, the Robotic Solution and certain portions thereof may not properly operate and/or your access to such features and functionality may be interrupted or otherwise be rendered unavailable. Bear is not responsible or liable to Customer for the improper functioning of the Robotic Solution or interruptions to Customer’s access to such features and functionality, in each case, that are due to a failure of Customer’s Internet connectivity or other network traffic problems arising in or from systems, networks, or infrastructure used by Customer in connection with the Robotic Solution.

4.8 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, ARE HEREBY DISCLAIMED BY BEAR INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BEAR DOES NOT WARRANT THAT THE PRODUCTS OR THE OPERATION THEREOF WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BEAR DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE BEAR INDEMNIFIED PARTIES (AS DEFINED BELOW) IN CONNECTION WITH THIS AGREEMENT WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE PRODUCTS AND THE SERVICES ARE AT ITS OWN DISCRETION AND RISK, AND THAT THE BEAR INDEMNIFIED PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY REAL OR PERSONAL PROPERTY OR FOR ANY BODILY INJURY (INCLUDING DEATH) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 4 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND BEAR DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT BEAR IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.    

5. TERM AND TERMINATION

5.1 Term of Agreement. The term of this Agreement commences on the Effective Date and will continue in full force and effect until the expiration or earlier termination of all Solution Subscriptions, unless earlier terminated as set forth herein (“Term”). 

5.2 Subscription Terms. Solution Subscriptions commence on the date that the Deployment Services are completed and will continue in full force and effect for the Subscription Term specified in the Order Form. Each Subscription Term will renew for successive terms equal in length to the Subscription Term unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term. 

5.3 Termination for Convenience. Either Party may terminate a Solution Subscription for convenience at any time. If Customer decides to terminate a Solution Subscription for convenience after the twenty-eighth (28th) day of the commencement of the Subscription Term, Customer will provide a formal termination notice to the following email address: cancellations@bearrobotics.ai. Bear will charge Customer a Restocking Fee. This fee will be 25% of the remaining value of the Subscription Term specified on the Order Form. Customer agrees to pay this fee in accordance to the terms outlined in Section 6.

5.4 Termination for Material Breach. Either Party may terminate a Solution Subscription and/or this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving written notice of such breach from the non-breaching Party.

5.5 Refunds. In the event the Solution Subscription is terminated by Bear pursuant to Section 5.3 or by Customer pursuant to Section 5.4, Customer will receive a refund for any prepaid fees for the Solution Subscription, which will be pro-rated for the terminated portion of the remaining months of the Subscription Term. Customer will not be entitled to any refund of any fees if the Solution Subscription is terminated by Bear pursuant to Section 5.4.    

5.6 Effect of Termination. Upon expiration or earlier termination of the Solution Subscription: (i) Customer will immediately cease all use of the Products; (ii) the licenses granted to Customer herein will immediately terminate; and (iii) Customer will allow Bear or its authorized third parties to enter and/or access the Authorized Site for the purposes of performing De-Installation Services. To the extent De-Installation Services are performed by any such authorized third party, such third party will at all times be responsible and liable for its acts or omissions in connection with its performance of De-Installation Services, and in no event will Bear be responsible or liable for any bodily injury, death, or damage to real or personal property arising from such third party’s performance of the De-Installation Services. Customer will ensure that the condition of the repossessed Products are substantially similar to the condition of such Products at the time the Subscription Term commenced, excluding ordinary wear and tear. Please note that certain components of your existing networking infrastructure or systems may fail or cease to function properly upon the completion of De-Installation Services and Bear will not be responsible or liable to Customer for any such failure or cessation. Upon termination of this Agreement: (1) Customer will pay to Bear any fees or other amounts that have accrued prior to the effective date of the termination; and (2) all causes of action, rights to payment, and any provision that, by their terms, are intended to survive termination, shall survive termination of this Agreement.

6. PAYMENT TERMS

6.1 Fees. Fees to be paid by Customer are set forth in an Order Form or will otherwise be communicated to Customer by Bear, and Customer will have an opportunity to review and accept the fees before they are charged to Customer.  All fees are denominated, and will be paid by Customer, in U.S. Dollars. Except as expressly set forth herein, any and all fees, costs, and expenses payable under this Agreement or any Order Form are non-cancellable and non-refundable. Bear reserves the right to determine pricing for the Products and the Solution Subscription. Bear may change the fees for the Products or the Solution Subscription, including additional fees or charges, and Bear will notify Customer of any such changes before they apply. Except as may be otherwise agreed to by the Parties in writing (including through an Order Form), Bear’s then-current pricing applicable for the Products and the Solution Subscription will apply on a going-forward basis for any Order Forms executed, and for any Solution Subscriptions renewed, after Bear notifies Customer of any such change (regardless of any discounted pricing in a prior Order Form or promotional offers previously extended to Customer). Bear, at its sole discretion, may make promotional offers with different features and different pricing to any of Bear’s other customers. These promotional offers, unless made to Customer, will not apply to Customer’s Order Forms or this Agreement.

6.2 Payment Terms. Fees are invoiced in accordance with the Order Form or as otherwise agreed upon by the Parties in writing, and any reimbursable expenses are invoiced in arrears. All fees and expenses are due within thirty (30) days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by applicable law, whichever is less. Customer will reimburse any documented costs or expenses incurred by Bear to collect any fees or expenses that are not paid when due (including, without limitation, reasonable attorneys’ fees). Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its payment of fees due under this Agreement, whether domestic or foreign (“Taxes”), other than Taxes based on Bear’s income. All fees and expenses are exclusive of Taxes. 

6.3 Payment Methods. Payments should be made by ACH or wire transfer. By providing the electronic payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processors) to automatically charge you any fees due under this Agreement to the payment method you provide. If you pay any fees through electronic payment means, we may seek pre-authorization of your payment method account prior to your purchase to verify that the payment details are valid and have the necessary funds or credit available to cover your purchase. You authorize us to charge any payment method previously provided to us in case your primary payment method is declined or no longer available to us for payment. We may cancel any Order Form or suspend or terminate your use of and/or access to the Products, if you fail to timely pay any fees due under this Agreement. You must resolve any payment method problems and pay any unpaid fees and charges before we fulfill your Order Form or reinstate your access to or use of the Products.

7. INDEMNIFICATION

7.1 By Bear. Bear will indemnify, defend, and hold harmless Customer from and against any and all claims, demands, or actions made by a third party (“Claims”), and all liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) (“Losses”) incurred or suffered by Customer arising from or in connection with any Claim that the Products infringe or misappropriate the Intellectual Property Rights of a third party. If the Products are, or in Bear’s opinion are likely to become, subject to an infringement Claim, Bear may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use Products as contemplated by this Agreement; (b) modify or replace the Products, in whole or in part, to make the Products (as modified or replaced) non-infringing; or (c) if the remedies set forth in subsection (a) or (b) above are not commercially reasonable (in Bear’s sole discretion), terminate this Agreement effective immediately on written notice to Customer. Bear will have no indemnification obligation under this Section 7.1 for Claims arising from or in connection with: (a) Customer’s use of the Products other than in accordance with this Agreement or the Rules; (b) Customer’s combination of the Products with software, hardware, components, or other technology not provided by Bear; or (c) modifications to the Products that are not made or authorized by Bear (“Excluded Claims”). THIS SECTION 7.1 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BEAR’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED INFRINGEMENT CLAIM.

7.2 By Customer. Customer will indemnify, defend and hold harmless Bear and its Affiliates and their employees, directors, agents, and representatives (“Bear Indemnified Parties” and, together with Customer, the “Indemnified Parties”) from and against any and all Claims (including those brought by Patrons) and Losses incurred or suffered by the Bear Indemnified Parties arising from or in connection with: (a) the Excluded Claims; (b) breach or non-fulfillment of any representation, warranty, or covenant set forth herein; (c) any death, bodily injury, damage, loss or destruction of any real or tangible personal property resulting from the use of the Products (except to the extent caused by the failure of the Products to materially operate in accordance with this Agreement or the Rules); or (d) Customer’s gross negligence, willful misconduct, fraud, or failure to strictly comply with Bear’s written instructions or directions.  

7.3 Procedures. The indemnifying Party will be given prompt written notice of the Claim by the Indemnified Party, provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay. Bear will have the option, in its sole discretion, to control the defense and all negotiations relative to the settlement of any such Claim, provided that no settlement admitting liability on the part of the Customer may be made without the express written consent of the Customer. To the extent that Bear does not exercise such option, Bear will promptly notify Customer and Customer will then be obligated to control the defense and all negotiations relative to the settlement of any such Claim; provided that no settlement admitting liability on the part of Bear may be made without the express written consent of Bear. The Indemnified Party will reasonably cooperate with the indemnifying Party and its counsel at the indemnifying Party’s cost and expense. The Indemnified Party may participate in a Claim with its own counsel at its own expense. The indemnifying Party will pay, on the Indemnified Party’s behalf, all damages awarded in a final judgment or settlement of such Claims (including reasonable attorney’s fees, interest, and penalties to the extent included therein).

8. LIMITATION OF LIABILITY

8.1 Consequential Damages. IN NO EVENT WILL BEAR OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF BEAR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 Direct Damages. IN NO EVENT WILL BEAR’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO BEAR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY.

8.3 Failure of Essential Purpose. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9. CONFIDENTIALITY

9.1 Nondisclosure. The receiving Party agrees that it will take, and will cause each of its directors, officers, employees, contractors, agents and consultants, including those of its Affiliate(s) (collectively, “Representatives”) to take, all reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the disclosing Party’s Confidential Information.  Without limiting the foregoing, the receiving Party will protect the disclosing Party’s Confidential Information using the same degree of care, but no less than a reasonable degree of care, as such Party uses to protect its own confidential information.  The receiving Party will use the disclosing Party’s Confidential Information solely to evaluate or perform obligations under this Agreement, and the receiving Party will not disclose the Confidential Information of the disclosing Party to any of its Representatives or any third parties, except to those Representatives who have a “need to know” the Confidential Information in order to evaluate or perform obligations under this Agreement; provided that such persons are made aware of the obligations under this Agreement and are bound by written agreements or professional obligations containing restrictions prohibiting the unauthorized disclosure or use of Confidential Information that are at least as protective as the terms of this Agreement, and the receiving Party remains liable for the acts and omissions of such parties with respect to the Confidential Information of the disclosing Party. If the receiving Party is subject to judicial or governmental proceedings requiring disclosure of the Confidential Information of the disclosing Party, then, prior to any such disclosure, the receiving Party will provide the disclosing Party with reasonable prior written notice and will obtain, or provide the disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information.

9.2 Exclusions. Confidential Information shall not include information which: (i) was rightfully in the possession of, or was known by, the receiving Party prior to its receipt from the disclosing Party, without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by the receiving Party from a third party, without an obligation to keep such information confidential; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.

9.3 Remedies. Each Party acknowledges that any breach or threatened breach of this Section 9 may cause irreparable injury to the disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief against a breach or threatened breach of this Section 9 or the continuation of any such breach by the receiving Party, without the necessity of proving actual damages or posting any bond.

9.4 Return. At the disclosing Party’s request or upon any termination of this Agreement, the receiving Party will delete or return (at the disclosing Party’s option) all of the disclosing Party’s Confidential Information (including any copies thereof and any documents or other materials containing or reflecting the disclosing Party’s Confidential Information).

10. MISCELLANEOUS

10.1 Export Control. Customer agrees to comply with all applicable U.S. and foreign export and import laws in using the Products. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Products in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit or upload to the Products any information controlled under the U.S. International Traffic in Arms Regulations.

10.2 Governing Law; Arbitration. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without reference to its conflict of law principles. Any dispute between the Parties that is not resolved through negotiation will be resolved exclusively by final and binding arbitration conducted in accordance with the then-current Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services (“JAMS”). The arbitration will be conducted by a single arbitrator selected by agreement of the Parties or, if the Parties cannot agree, an arbitrator appointed in accordance with the JAMS rules.  The Parties, their representatives, the arbitrator, and other participants shall keep confidential the existence, content, and result of the arbitration. The arbitration will be conducted in the English language; the location of such arbitration shall be in San Francisco, California. Each Party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the Parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement. Judgment upon the award may be entered in any court of competent jurisdiction. Notwithstanding the agreement to arbitrate, each Party may apply at any time to a court of competent jurisdiction for appropriate injunctive relief or for other interim or conservatory measures, and by doing so will not breach or waive the agreement to arbitrate or impair the powers of the arbitrator.

10.3 Waiver of Jury Trial.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN CONNECTION WITH THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.3.

10.4 Assignment.  Neither this Agreement nor any rights or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, except Bear may assign this Agreement and its rights hereunder, without Customer’s consent, to an Affiliate or to a successor in interest pursuant to a merger, reorganization, change of control, acquisition or sale of all or substantially all of the Bear’s assets to such successor.  Any assignment in violation of this Section 10.3 will be null and void, and will be deemed a material breach of this Agreement.  

10.5 Waiver.  It is agreed that waiver by a Party hereto of any breach or default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of a Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

10.6 Cumulative Remedies.  Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth in this Agreement and allowed under applicable law.

10.7 Independent Contractors.  The relationship of the Parties hereto is that of independent contractors.  The Parties hereto are not deemed to be agents, partners or joint ventures of the other for any purpose as a result of this Agreement or the transactions contemplated thereby.  Nothing herein shall be deemed or construed as granting a Party any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of the other Party.  

10.8 Notices.  Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt.  Notice shall be sent to the addresses set forth in the Order Form or to such other address as either Party may provide in writing.

10.9 Force Majeure.  Neither Party will be liable to the other Party in any way whatsoever for any failure or delay in performance of any of the obligations under this Agreement (other than the payment obligations set forth in Section 6 and the confidentiality obligations set forth in Section 9), arising out of any event or circumstance beyond the reasonable control of such Party (including war, rebellion, civil commotion, terror, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; acts of terror; epidemics, pandemics, or quarantine restrictions; or order by any government department, council or other constituted body).

10.10 Headings; Construction; Severability.  The headings to the clauses, sub-clause and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.  The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion of this Agreement.  As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation” and the word “discretion” means sole discretion.  In interpreting and applying the terms and provisions of this Agreement, the Parties agree that no presumption shall exist or be implied against the Party that drafted such terms and provisions. In the event that any clause, sub-clause or other provision contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such clause, sub-clause or other provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.

10.11 Complete Agreement.  This Agreement (including all Order Forms) supersedes any arrangements, understandings, promises or agreements made or existing between the Parties hereto prior to or simultaneously with this Agreement, and constitutes the entire understanding between the Parties hereto as to the subject matter hereof.  Any inconsistent or additional term or condition in a purchase order or other payment documentation provided by Customer to Bear that is not expressly agreed in writing to supersede this Agreement is hereby rejected and shall have no force or effect.

10.12 Modification of Agreement. Bear may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order Form unless Bear indicates an earlier effective date. If Bear requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Bear, in which case Bear will provide Customer a refund of any pre-paid fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify Bear of its objections within fourteen (14) days after Bear’s notice of the modified Agreement. Once the modified Agreement takes effect, Customer’s continued use of the Products provided in connection with the Solution Subscription constitutes its acceptance of the modifications. Bear may require Customer to click to accept the modified Agreement.

10.13 Modification of Rules. The Rules are not subject to Section 10.12. With notice to Customer, Bear may modify the Rules to reflect new features or changing practices, but the modifications will not materially decrease Bear’s overall obligations during a Subscription Term. 

10.14 Insurance. During the Term, Customer will maintain all necessary and sufficient insurance with financially sound and reputable companies with respect to its properties and business, in such amounts and covering such risks as is carried generally in accordance with sound business practices by companies in similar businesses similarly situated. Customer will provide to Bear either a certificate showing compliance with these insurance requirements or certified copies of all insurance policies within ten (10) days of Bear’s written request. Customer will provide Bear thirty (30) days’ prior written notice prior to any termination, non-renewal, or reduction in the amount or scope of coverage. Bear may require Customer to furnish evidence of the foregoing insurance but failure to comply with these insurance requirements will not relieve Customer of its liability and obligation under this Agreement.

10.15 Resellers. This Section 10.15 applies to any access to or use of Products purchased by Customer through a Reseller. Instead of paying Bear, Customer will pay applicable amounts to the Reseller as agreed upon between Customer and the Reseller. Customer’s order details (e.g., scope of use, Subscription Term, and fees) will be as stated in the Order Form placed by Reseller with Bear on Customer’s behalf. The Reseller is responsible for the accuracy of such Order Form. Bear may suspend or terminate Customer’s rights to access and use the Products if it does not receive the corresponding payment from the Reseller. If Customer is entitled to a refund under this Agreement, Bear will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise specified. This Agreement is directly between Bear and Customer and governs all use of the Products by Customer. Resellers are not authorized to modify this Agreement or make any promises, representations, warranties, or commitments on Bear’s behalf, and Bear is not bound by any obligations to Customer other than as set forth in this Agreement. Bear is not party to (or responsible under) any separate agreement between Customer and Reseller and is not responsible for the Reseller’s acts, omissions, products, or services. The amount paid by the Reseller to Bear for the Products purchased by Customer will be deemed to be the amount paid by Customer to Bear under this Agreement for purposes of Section 8.

10.16 Communications. Customer hereby agrees that Bear and those acting on Bear’s behalf may send Customer text (SMS) messages at the phone number provided to Bear. These text messages may include operational messages about Customer’s use of the Products and/or Services, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM BEAR, YOU CAN EMAIL support@bearrobotics.ai OR REPLY TO ANY SMS MESSAGE FROM BEAR WITH “STOP” OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM BEAR, YOU CAN EMAIL support@bearrobotics.ai OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE PRODUCTS AND SERVICES. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase of the Products. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. By using the Products, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

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Bear Robotics Inc., 785 Broadway St., Redwood City, CA 94063, USA.