Services Terms and Conditions
By virtue of purchasing any service, you ("Customer" or “You”) agree to be bound by these Services Terms and Conditions as such may be updated from time to time, and any proposal prepared Gecko Robotics, Inc. (collectively, the "Terms"). In the event of any conflict between these Terms and any other service-specific terms, the service-specific terms shall control, provided that any such service-specific terms have been explicitly agreed upon as evidenced in writing. For purposes of these Terms of Service, all references to "Service Provider" mean Gecko Robotics, Inc. and any of its affiliates or subsidiaries providing You with products or services (including third parties Gecko Robotics, Inc. may retain to provide the products or services).
These Service Terms and Conditions are updated as of October 22, 2020.
Services
Service Provider shall provide to Customer the services (the "Services") set out in a proposal. All changes in the Services will be documented by written change order signed by Service Provider and Customer, setting forth the nature of the change and any adjustment to price and time of performance necessitated by such change. Notwithstanding the foregoing, a “Project Schedule” must be agreed to by Service Provider before commencement of the Services. If Service Provider is delayed at any time in the commencement or progress of the Services, by any act, or neglect, or failure to respond, of the Customer, or by changes ordered in such Services by the Customer, then the term and cost, shall be adjusted accordingly. Furthermore, Service Provider’s performance hereunder is dependent upon (i) Customer’s fulfillment of its responsibilities hereunder, (ii) the accuracy and sufficiency of any and all drawings and other information provided by Customer (including without limitation site dimensions and composition), (iii) uninterrupted access to Customer’s sites and utilities, (iv) site cleanliness, and (v) any additional assumptions and/or Customer responsibilities as further set forth in a proposal. Customer hereby acknowledges and agrees that if any of the foregoing are unmet or are inaccurate, then Service Provider and Customer will promptly engage in good faith discussions regarding a change order in accordance with the above.
Fees and Expenses
For the Services to be performed, Customer shall pay to Service Provider the fees (and expenses, if any) set forth in the proposal (the "Fee") within thirty (30) days of the date of Service Provider's invoice. Should any portion of the Services be performed on an continual basis, including but not limited to Service Provider’s “chartered services”, Service Provider may, but without obligation and pursuant to the terms of this Agreement, invoice Customer at a frequency not less than weekly for all Services performed up to and including the date of any such invoice. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider's income, revenues, gross receipts, personnel, or real or personal property or other assets. In addition to all other remedies available under the Terms or at law (which Service Provider does not waive by the exercise of any rights), Service Provider shall be entitled to suspend the provision of any Services if Customer fails to pay any Fees when due and such failure continues for seven (7) days following written notice thereof. Customer’s liability for payment hereunder is primary and is not conditioned upon Customer receiving payment from any third party. Customer acknowledges and agrees that no payments shall be made via joint check or credit card.
Intellectual Property
Customer acknowledges and agrees that the Services are not considered “work-for-hire” or subject to any similar legal theory under applicable copyright law. Any of Service Provider’s deliverables that are provided in connection with the Services are explicitly limited to inspection reports and access to Service Provider’s “Portal” (collectively “Deliverables”). Any rights, title, or interest in any of the Services beyond those Deliverables enumerated above, including but not limited to inspection metadata, will remain the sole and exclusive property of Service Provider. Furthermore, Customer acknowledges and agrees that the Services and all inventions, data, results, product improvements, modifications, or developments related to the Services that Service Provider conceives, learns or makes before, during or subsequent to the performance of the Services, including those inventions, product improvements, modifications and developments that may be based partly or wholly on Feedback (as defined below), will be the exclusive property of Service Provider. Customer shall not, and shall not permit a third party to: (i) copy, download, provide screen prints, modify, transfer or assign any part of the Services (except as set forth below), (ii) reverse engineer, de-compile, reverse-compile, translate, disassemble or reverse assemble any part of the Services or the source code or object code for all or any portion of the Services, (iii) use the Services for any purpose other than its intended purpose, or (iv) sell, lease, assign, sublicense or otherwise transfer or disclose any part of the Services to any third party. Subject to the foregoing, Customer may generate, print, and distribute certain reports via an interactive interface within Service Provider’s “Portal”, as such may be updated from time to time by Service Provider. Any and all such reports shall be used strictly in connection with Customer’s internal business purposes and shall not be shared, disclosed or sold to any third party.
Confidentiality
From time to time, either party (as the "Disclosing Party") may disclose or make available to the other party (as the "Receiving Party"), non-public, proprietary, and confidential information of Disclosing Party ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section ; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.
Feedback and Service Data
Customer agrees that any feedback or ideas it provides to Service Provider regarding any of the Services or any suggested improvements thereto (collectively, “Feedback”) will be the exclusive property of Service Provider. To the extent Customer owns any rights in the Feedback, it agrees to assign and hereby does assign to Service Provider all right, title and interest in and to the Feedback. Customer agrees to perform all acts reasonably requested by Service Provider to perfect and enforce such rights. Additionally, notwithstanding anything to the contrary herein, as between Customer and Service Provider, Service Provider shall be the sole and exclusive owner of all right, title and interest in and to all Service Data, including all intellectual property rights relating thereto. "Service Data" means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer by or through the Services, or that incorporates or is derived from the processing of such information, data or content by or through the Services. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Service Provider an assignment of all right, title and interest in and to the Service Data, including all intellectual property rights relating thereto.
Third Party Equipment
From time to time as Service Provider deems reasonably necessary, Service Provider may rent equipment, tools or the like from a third party in connection with the provision of the Services hereunder (collectively, “Third Party Equipment”). Service Provider shall charge Customer for the use of any such Third Party Equipment on a direct cost basis, plus fifteen percent (15%), as itemized on the applicable invoice. Service Provider shall be solely responsible for all Third Party Equipment, except in the event of any loss or harm caused to such by Customer, in which cases Customer shall be solely liable.
Termination
Either party may terminate the Services at any time upon fifteen (15) days prior written notice. Either party may terminate the Services immediately upon written notice if the other party breaches the provisions hereof. Upon termination of any such Services, Customer will promptly delete any of Service Provider’s Confidential Information to which it has access and will promptly return any and all of Service Provider’s equipment in its possession. Notwithstanding the foregoing, in the event that any Services provided, in whole or in part, is terminated by Customer within ninety (90) days of the date of an agreement to provide Services or the actual commencement date of the Services, whichever occurs later, Customer will pay to Service Provider, as liquidated damages (and not as a penalty), an amount assessed at three percent (3%) of the total value of the Services to be performed (“Termination Fee”). This Termination Fee represents the reasonable estimate of the damage from the loss of revenue and sunk costs which will result from such termination. The Termination Fee must be paid within fifteen (15) days after such date of termination.
Independent Contractor
The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in these Terms or elsewhere shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Service Provider is for all purposes an independent contractor and in no event will Service Provider be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.
Limited Warranty
In providing services under this Agreement and/or arising from any Proposal, Service Provider shall perform consistently with that reasonable degree of skill and care ordinarily used by other members of Gecko’s profession practicing in the same or similar locality and under similar circumstances. Service Provider represents and warrants that, for a period of one (1) month after the completion of Services, such Services performed hereunder will conform to the specifications, complies with all applicable laws, and will be free from defects in workmanship. SERVICE PROVIDER (a) MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Service Provider's sole and exclusive liability and Customer's sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected Services.
Customer shall be responsible for ensuring the accuracy, validity and completeness of all user-defined report definitions. Customer shall also be responsible for initiating, monitoring, operating, printing and ensuring the accuracy, validity, and completeness of all print outputs and file downloads, such as but limited to all reports, determining how many and on what print stock such outputs are to be printed or into which files or programs on Customer- controlled computers such files are to be downloaded and manipulated, at Customer's own initiative, responsibility and risk. Customer hereby acknowledges responsibility for generally controlling all aspects related to the production, distribution and control of such outputs. Customer further acknowledges that, notwithstanding the responsibility of Service Provider to have used due care and diligence in the design, programming, documentation and operation of the Portal, the accuracy and interpretation of the Deliverables, will be dependent on the accuracy and use of the Customer-controlled data variables, logic rules, system functions, and its own independent analysis.
Limitation of Liability
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
General
Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile (with confirmation of transmission), by email, or by recognized overnight courier service, and addressed to the other party at the applicable addresses (including without limitation email addresses) set forth in any agreement for Services (or to such other address that the receiving party may designate from time to time). This Agreement and all matters arising out of this Agreement are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of this Agreement in the federal or state courts in each case located in Pittsburgh, Pennsylvania. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT. These Terms contain the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. No waiver of any right, remedy, power, or privilege is effective unless contained in a writing signed by the party charged with such waiver and no failure to exercise, or delay in exercising, any such right operates as a waiver thereof. Any provision that, in order to give proper effect to its intent, should survive the expiration or termination of the Services, will survive such expiration or termination indefinitely.
Force Majeure
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, government mandated or suggested shut-down, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Non-Solicitation
During the term of any agreement for Services and for a period of one (1) year after expiration or termination thereof, Customer agrees not to, directly or indirectly: (i) solicit for employment or hire, either full or part time, any employee of Service Provider who is first introduced to Customer in connection with the Services, or (ii) solicit or induce, or attempt to solicit or induce, any customer, supplier, licensee, licensor or other business relation of the Service Provider to terminate its relationship or contract with the Service Provider, to cease doing business with the Service Provider, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Service Provider.