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Bonsai Amiga Terms and Conditions of Sale
And License Agreement (Bonsai Amiga U.S)
Last Updated: May 15, 2026
IMPORTANT – READ CAREFULLY. THE BONSAI AMIGA TERMS AND CONDITIONS OF SALE AND LICENSE AGREEMENT TOGETHER WITH THE RELEVANT ORDER ENTERED INTO WITH BONSAI (COLLECTIVELY “AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN THE RELATIONSHIP BETWEEN BONSAI ROBOTICS, INC. (“BONSAI” OR “WE” OR “US”) AND THE PARTY LISTED ON THE ORDER REFERENCING THIS AGREEMENT (“CUSTOMER” OR “YOU”) AND DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO (A) THE PURCHASE OF THE BONSAI AMIGA ROBOT IDENTIFIED IN THE ORDER (“ROBOT”) AS WELL AS ANY OTHER ACCESSORIES, COMPONENTS, ATTACHMENTS, HARDWARE KITS, DEVICES, CONTROLLERS, EMBEDDED ELECTRONICS, WIRING, CABLES, CONNECTORS, POWER SUPPLIES, BATTERIES, CHARGING EQUIPMENT, SENSORS, ACTUATORS, MOUNTING HARDWARE, REPLACEMENT PARTS, AND ANY OTHER TANGIBLE OR PHYSICAL COMPONENTS DELIVERED TO CUSTOMER, WHETHER AS PART OF AN INITIAL PURCHASE, UPGRADE, REPAIR, OR REPLACEMENT (SPECIFICALLY EXCLUDING ANY THIRD-PARTY PRODUCTS RESOLD BY BONSAI) (COLLECTIVELY ALL SUCH HARDWARE, DEFINED HEREIN AS “HARDWARE”); (B) YOUR LICENSE TO ANY SOFTWARE, FIRMWARE, EMBEDDED CODE, OPERATING SYSTEMS, DRIVERS, APPLICATION PROGRAMMING INTERFACES (APIS), SDKS, RELATED SOFTWARE TOOLS, ALGORITHMS, MODELS, APPLICATIONS, AND EXECUTABLE OR NON-EXECUTABLE CODE MADE AVAILABLE BY BONSAI TO CUSTOMER IN CONNECTION WITH THE HARDWARE OR THE ORDER, WHETHER PRE-INSTALLED ON THE HARDWARE, PROVIDED FOR DOWNLOAD, ACCESSED VIA THE INTERNET, OR OTHERWISE MADE AVAILABLE TO CUSTOMER IN CONNECTION WITH THE ORDER, INCLUDING ANY MODIFICATIONS, BUG FIXES, PATCHES, UPDATES OR UPGRADES TO THE SAME DELIVERED TO CUSTOMER BY, OR ON BEHALF OF BONSAI (“SOFTWARE”), AND (C) IF APPLICABLE TO YOUR PURCHASE, ACCESS AND USE OF ANY WEB-BASED APPLICATIONS, DASHBOARDS, PORTALS, AND USER INTERFACES, OR CLOUD-BASED, HOSTED, OR WEB SERVICES USED FOR REGISTRATION, AUTHENTICATION, CONFIGURATION, MONITORING, UPDATES, DIAGNOSTICS, OR CONTROL OF THE ROBOT OR OTHER HARDWARE AS UPDATED BY BONSAI FROM TIME TO TIME (“WEB SERVICES”); (D) ANY SDKS, APIS, SAMPLE CODE, DEVELOPER TOOLS, OR INTEGRATION UTILITIES PROVIDED BY BONSAI TO CUSTOMER INCLUDING UPDATES (“TOOLS”); AND (E) ANY DOCUMENTATION (INCLUDING UPDATES) SUPPLIED TOGETHER WITH ANY OF THE FORGOING (“DOCUMENTATION”). ALL SUCH HARDWARE, SOFTWARE, WEB SERVICES, TOOLS, AND DOCUMENTATION DELIVERED BY BONSAI TO CUSTOMER ARE REFERRED TO HEREIN AS “BONSAI SOLUTION(S)”.
DO NOT PURCHASE OR USE ANY BONSAI SOLUTIONS UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT AUTHORIZED TO PURCHASE, ACCESS OR USE ANY COMPONENT OR ASPECT OF THE BONSAI SOLUTION(S). IF YOU ASSENT TO THE ORDER REFERENCING THESE TERMS, OR BY ACCEPTING DELIVERY OF THE BONSAI SOLUTION(S) YOU SIGNIFY YOUR AGREEMENT TO ALL THE TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT.
THIS AGREEMENT WILL BE EFFECTIVE ON THE DATE IDENTIFIED ON THE ORDER (OR IF NO EFFECTIVE DATE IS IDENTIFIED) THEN ON THE DATE THE HARDWARE IS FIRST DELIVERED TO CUSTOMER (THE “EFFECTIVE DATE”).
IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF ANY ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ASSENT TO THESE TERMS.
1. Commercial Terms.
1.1 Orders. Customer may purchase Hardware by submitting an Order to Bonsai and assenting to the terms of the Order and this Agreement. For purposes of this Agreement, an “Order” means any document (including any web form) referencing these terms entered into between Customer and Bonsai (or an Authorized Reseller of Bonsai) for Bonsai Solution(s). An Order will include the relevant commercial terms of the purchase, including as applicable the pricing and payment terms. Customer may also purchase certain Third-Party Product(s) (defined below), subject to third party terms listed in the Order.
1.2 Delivery. Hardware will be shipped by Bonsai (or its Authorized Reseller). Software and Web Services, if any delivered, will be delivered electronically. Unless otherwise stated in the applicable Order, Customer is responsible for all shipping, freight, insurance, customs, duties, and related charges. Any delivery dates are estimates only and are not guaranteed. Bonsai shall not be liable for delays in delivery. If Hardware becomes unavailable after Order acceptance but prior to shipment, Customer’s sole and exclusive remedy is a refund of the purchase price. If technical issues unreasonably delay delivery, Bonsai may, at its option, provide replacement Hardware or issue a refund of the purchase price as Customer’s sole remedy.
1.3 Price, Payment Terms, & Taxes.
(a) Pricing. Pricing for Bonsai Solution(s) is set forth in the applicable Order. Bonsai may revise pricing prior to Order acceptance.
(b) Payment Terms. Payment terms are as stated in the Order. If not specified, payment is due upon execution of the Order and prior to shipment. Bonsai may, in its sole discretion, extend or revoke credit at any time. Bonsai reserves the right to require full payment prior to shipment, including if Customer has outstanding unpaid amounts. If credit is extended, invoices are payable within thirty (30) days of invoice date unless otherwise stated. Overdue amounts shall accrue interest at 1.5% per month or the maximum permitted by law, whichever is less. Bonsai may accelerate all unpaid amounts upon default. Customer shall pay all amounts without setoff, counterclaim, deduction, or withholding (except as required by law). Bonsai may set off amounts owed by Customer against amounts payable by Bonsai to Customer. Customer must dispute any invoice in writing within thirty (30) days of receipt; otherwise, the invoice shall be deemed accepted. Except as expressly stated in this Agreement or the Order, all fees are non-cancelable and non-refundable. Bonsai is entitled to reimbursement of all reasonable costs of collection of past-due amounts, including attorneys’ fees.
(c) Taxes. All prices are exclusive of taxes, duties, and governmental charges. Customer is responsible for all such amounts (other than taxes based on Bonsai’s net income) and shall provide valid exemption documentation if applicable. Customer’s total invoiced amount will include the price of the Bonsai Solution(s) plus any applicable sales, value added, goods and/or use tax (“Sales Tax”). Such Sales Tax is based on the ship-to address and Sales Tax rate in effect at the time Customer purchases. Bonsai will charge Sales Tax only in countries, territories, or US states where local regulations and laws require it, to the best of Bonsai’s knowledge.
1.4 Purchase Through Authorized Resellers. If Customer purchases Bonsai Solution(s) through an Authorized Reseller: (a) The applicable Order shall be entered between Customer and the Authorized Reseller; (b) Payment obligations are owed to the Authorized Reseller; (c) Bonsai shall issue any credits or refunds owed by Bonsai to the Authorized Reseller, and Customer shall look solely to the Authorized Reseller for payment-related refunds; (d) Bonsai shall not be responsible for any failure by the Authorized Reseller to issue credits or refunds to Customer. Unless expressly agreed in writing by Bonsai, no additional or different terms in any agreement between Customer and an Authorized Reseller shall be binding on Bonsai. In the event of conflict between the Reseller Order and these terms, these terms control.
2. Hardware Terms.
2.1 Risk of Loss. Unless otherwise specified in the Order, delivery of Hardware is FCA (Bonsai’s shipping facility), Incoterms® 2020. Risk of loss and damage transfers to Customer upon delivery of the Hardware to the carrier.
2.2 Title. Title to the Hardware shall pass to Customer only upon Bonsai’s receipt of full payment. Until such time: (a) Bonsai retains a purchase money security interest in the Hardware and may file financing statements or other documents necessary to perfect and enforce such interest; (b) Customer shall not sell, lease, pledge, or otherwise encumber the Hardware; (c) Customer shall maintain the Hardware in good condition and insured for its full replacement value, and upon request shall provide proof of insurance naming Bonsai as loss payee; (d) Customer shall not remove or alter identifying marks on the Hardware; and (e) Customer shall provide information reasonably requested by Bonsai relating to the Hardware. If Customer fails to make payment when due, Bonsai may, without limiting any other remedies: (i) Declare all outstanding amounts immediately due and payable; (ii) Suspend or disable access to Bonsai Software or Web Services associated with the Hardware; (iii) Revoke any extended credit terms; and (iv)To the extent permitted by law, enter Customer’s premises during normal business hours to repossess the Hardware, with Customer’s reasonable cooperation, at Customer’s expense. Customer shall bear all costs associated with repossession and collection, including reasonable attorneys’ fees.
2.3 No Resale. Customer agrees that the Hardware is sold solely for Customer’s internal use in connection with the Bonsai Solutions. Customer shall not sell, resell, lease, sublicense, assign, distribute, or otherwise transfer the Hardware to any third party without Bonsai’s prior written consent. Customer acknowledges that: (i) only Bonsai and its authorized resellers are permitted to distribute new or used Hardware; and (ii) any unauthorized transfer voids any associated Software licenses, warranties, support, and service rights. Bonsai reserves the right to suspend or permanently disable associated Software or Web Services for any Hardware transferred in violation of this Section. This Section survives termination or expiration of the Agreement.
2.4 Inspection and Acceptance. Customer shall inspect all Hardware promptly upon delivery. Customer must notify Bonsai in writing of any nonconformity, damage, or shortage within ten (10) days after delivery (“Inspection Period”). If Customer fails to provide such notice within this period, the Hardware shall be deemed accepted. Acceptance does not waive Customer’s rights under the limited warranty set forth in Section 8, but any claims relating to shipment damage, shortages, or nonconformity at delivery must be made within the Inspection Period.
2.5 Dead-on Arrival. Dead-on-Arrival (DOA). If Hardware is inoperable or materially nonconforming upon delivery (“DOA”), and Customer provides written notice within ten (10) days after delivery, Bonsai will, at its option, promptly repair or replace the affected Hardware or component. DOA Hardware will be handled on a priority basis separate from standard warranty procedures. Hardware that becomes nonconforming after the DOA period will be handled under the warranty terms set forth in Section 8.
3. Licenses; Bundled Software; Tools; Use Rights.
The following subsections apply only if, and to the extent that, the corresponding item is supplied to Customer under the applicable Order.
3.1 Definitions:
“Bundled Software” means Software and/or Web Services delivered by Bonsai to Customer with the Hardware purchased by Customer at no additional charge (no separate fee). Bundled Software includes any Updates to the relevant Software and/or Web Services and any associated Documentation provided by Bonsai. For clarity, the definition of Bundled Software specifically excludes any Software and/or Web Services sold as part of any Subscription Services.
“Subscription Services” shall mean Software and/or Web Services identified in an Order which are licensed on a subscription basis. For clarity, no Subscription Services are sold under the terms of this Agreement. If Customer has purchased Subscription Services such purchase shall be subject to Bonsai’s standard subscription terms separately provided to Customer.
3.2 Bundled Software. If Hardware is delivered with free Bundled Software the following applies: Subject to Customer’s compliance with the terms of this Agreement, Bonsai grants Customer a limited, non-exclusive, non-transferable, non-sublicensable limited license to use Bundled Software (including any online or web-based functionality) solely with the specific Hardware delivered together with such Bundled Software and solely for Customer’s internal business purposes. Customer understands and agrees that the license to Bundled Software is (a) tied to the specific Hardware delivered together with the Bundled Software (b) may not be separated from the Hardware where integrated; and (c) automatically terminates if Customer sells, transfers, or otherwise ceases to own or lawfully possesses the applicable Hardware. Notwithstanding anything else herein, all Bundled Software is delivered “as is” with no warranty of any kind, and with respect to free Bundled Software, Bonsai has no obligation to: (i) provide maintenance, updates, upgrades, support, or ongoing hosting; or (ii) maintain compatibility with future systems. Bonsai may modify, suspend, discontinue access to, or the offering of, free Bundled Software at any time.
3.3 Tools. If Tools are delivered to Customer in connection with the purchase of any Bonsai Solution, then subject to Customer’s compliance with this Agreement, Bonsai grants to Customer a limited, non-exclusive, non-transferable license to use the Tools solely: (a) to develop integrations or interoperability with relevant Bonsai Solution(s) identified in the relevant Documentation; (b) for internal development purposes in accordance with the use rights identified in the relevant Documentation and this Agreement. Notwithstanding anything else herein, all Tools are delivered “as is” with no warranty of any kind and with respect to any Tools, Bonsai has no obligation to: (i) provide maintenance, updates, upgrades, support, or ongoing hosting; or (ii) maintain compatibility with past or future systems. Bonsai may modify, suspend, discontinue access to, or the offering of, Tools at any time.
3.4 Documentation. Subject to Customer’s compliance with this Agreement, Bonsai grants Customer a limited, non-exclusive license to use Documentation solely: (a) in connection with Customer’s permitted use of the applicable Bonsai Solution, including the relevant Hardware, Software, or Web Services; and (b) for internal business purposes. Documentation may not be redistributed or published without Bonsai’s prior written consent.
3.5 Updates and Modifications. Bonsai may, at its sole discretion, deliver to Customer certain enhancements, modifications, updates, upgrades, bug fixes, maintenance releases, and/or workarounds to the Software, Web Services or Documentation at its sole discretion (each an “Update”). Bonsai may require installation of Update(s) as a condition of continued use of the relevant Software, Web Services, and/or Documentation. For clarity, Bonsai is not obligated to provide Updates or support services to Customer.
3.6 Web Services; Access and Credentials; Additional Online Terms. If Web Services are made available to Customer in connection with use of any Hardware or Software and such Web Services require that Customer register an account and provide Bonsai with certain information (such as identification or contact details) as part of the registration process, Customer shall ensure that the Customer’s users accessing or using the Web Services on behalf of Customer (“Customer User(s)”) provide accurate, current and complete information. Customer will maintain the accuracy of such information during the use of the Services. Customer and Customer Users shall maintain proper password security and maintain the confidentiality of Customer’s account(s). Without limiting any other responsibilities Customer has under this Agreement, Customer is responsible for the actions of anybody using Customer’s credentials. Access to and use of any Web Services may be subject to additional terms, conditions, click-through agreements, acceptable use policies, or service descriptions presented at the time of account creation, activation, or access (collectively, “Online Terms”). Customer agrees that use of the Web Services constitutes acceptance of such Online Terms. In the event of a conflict between this Agreement and the Online Terms, this Agreement shall control unless the Online Terms expressly state that they supersede specific provisions of this Agreement with respect to the Web Services.
4. Restrictions.
4.1 General Restrictions. Customer shall not, and shall not permit any third party to: (a) modify, translate or create derivative works of the Bonsai Solution(s); (b) reverse compile, disassemble, decompile or reverse engineer Bonsai Solution(s) or any part thereof, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Bonsai Solution(s), except to the extent such restriction is prohibited by applicable law; (c) interfere or attempt to interfere in any manner with the functionality or proper working of the Bonsai Solution(s) (including by disabling or circumventing any features or functionality); (d) copy the Bonsai Solution(s) or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); (e) access or use the Bonsai Solution(s) in order to develop or improve a competitive product or service; (f) use the Bonsai Solution(s) in any unlawful manner, or in violation of any applicable laws or regulations; or (g) separate the Bundled Software from the Hardware or use the Bundled Software on any equipment other than the Hardware delivered together with the Bundled Software; or (h) do anything that would adversely affect the intellectual property rights of Bonsai and its licensors in and to the Bonsai Solution(s). If Customer installs or has a third party install Software on any hardware other than the Hardware provided by Bonsai, such action will be deemed a material breach of this Agreement that will void the warranties set forth herein. In addition, without limiting any other remedy available to Bonsai, Bonsai reserves the right to bring an action against Customer for breach of contract and infringement of intellectual property rights in such event. Except where explicitly permitted in writing by Bonsai, licenses and rights of access or use granted to Customer hereunder are not transferable. The licenses to Bundled Software and Tools (if any) do not survive transfer of Hardware, and any attempted transfer in violation is void.
4.2 No High-Risk Uses. Customer shall not use the Bonsai Solutions in: (a) life-support systems; (b) medical applications; (c) autonomous passenger transportation; (d) nuclear, aviation, or weapons systems; (e) or any high-risk environment where failure could reasonably result in death or catastrophic damage (collectively “High Risk Uses”), unless expressly authorized in writing by Bonsai. Customer understands and any High-Risk Uses shall be subject to different and additional terms including higher insurance limits and indemnification obligations.
5. Personal Data and Privacy Notice; Data.
5.1 Privacy Notice. Bonsai’s collection and use of any personally identifiable data (“Personal Data”) shall be in compliance with Bonsai’s Privacy Notice, as may be amended from time-to-time by Bonsai and which is incorporated by reference herein, the current version of which can be viewed at https://bonsairobotics.ai/privacy/ (“Privacy Notice“) and Customer (on behalf of itself and its users accessing Bonsai Solutions (“Users”)) consents to collection and use outlined in the Privacy Notice.
5.2 Customer Data. “Customer Data” means any data or information submitted, uploaded, transmitted, or otherwise made available by Customer or its Users to or through the Bonsai Solution(s). Customer is solely responsible for Customer Data, including its legality, accuracy, content, and compliance with Laws. Customer represents and warrants that it has provided all notices and obtained and will maintain all rights, consents, permissions, and authorizations necessary for Bonsai and its service providers to Process Customer Data as contemplated by these Terms without violating applicable Laws, third-party rights, or applicable terms or policies. Customer grants Bonsai a non-exclusive, worldwide, sublicensable right to access, use, host, copy, store, process, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data for the following purposes: (i) to provide, operate, support, maintain, secure, improve, and exercise Bonsai’s rights and obligations with respect to the Bonsai Solution(s); (ii) to generate, derive, collect, and use Usage Data (defined below); (iii) to create, compile, use, disclose, and commercialize Aggregated Data (defined below); (iv) to develop, train, fine-tune, test, improve, and enhance the Bonsai Solution(s), including algorithms, machine-learning models, artificial intelligence systems, analytics, features, functionality, and related Bonsai products and services; (v) to comply with applicable Laws; and (vi) as otherwise authorized in writing by Customer.
5.3 Usage Data; Aggregated Data. “Usage Data” means data generated from or relating to the use, operation, support, or performance of the Bonsai Solution(s), including metadata, telemetry, system performance metrics, autonomy performance logs, confidence scores, navigation traces, safety-system activations, obstacle-detection signals, technical logs, and similar operational or diagnostic information, provided that such data does not identify Customer, any User, or any other natural person. “Aggregated Data” means information or data that has been aggregated, anonymized, deidentified, or otherwise processed such that it no longer identifies any natural person including any User or Customer. Bonsai may process Usage Data and Aggregated Data for any lawful purpose, such as to: (a) track use of Bonsai Solution(s) for billing purposes; (b) to perform, including to provide Hardware, Software, Web Services, and/or Tools; (c) monitor the performance and stability of the Bonsai Solution(s); (d) prevent or address technical issues with the Bonsai Solution(s); (e) train, fine-tune, and improve Bonsai’s solutions including algorithms, machine-learning models, and artificial intelligence systems and to improve Bonsai Solution(s), its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, forecasting, and reports. Customer will not interfere with the collection of Usage Data. For clarity, and notwithstanding anything else herein, the definition of Customer Data specifically excludes Usage Data or Aggregated Data.
5.4 Prohibited Data. Customer shall not, and shall not permit any User or third party to, provide Bonsai with any Prohibited Data unless expressly agreed in writing by Bonsai. “Prohibited Data” means any sensitive or regulated data subject to heightened legal or regulatory requirements, including protected health information subject to HIPAA, financial account information, payment card data, biometric data, or similar regulated information. Notwithstanding the foregoing, Customer may provide business contact information, account credentials, telemetry, location data, operational data, and system performance data to the extent necessary for the use, operation, support, or improvement of the Bonsai Solution(s), and such data shall not constitute Prohibited Data. Bonsai shall have no responsibility or liability for any Prohibited Data provided in violation of this Section.
6. Confidentiality.
6.1 Definition. “Confidential Information” means any non-public information disclosed by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally, visually, in writing, or by access to systems or equipment, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, (i) with respect to Bonsai, the Robot, any Software, Web Services, Tools, Documentation, specifications, models, algorithms, analytics, telemetry, performance data, system architecture, product roadmaps, pricing, and any non-public information relating to the design, operation, or performance of the foregoing, and (ii) with respect to Customer, Customer Data and Customer’s non-public business and operational information.
6.2 Obligations. The Receiving Party shall (i) use the Disclosing Party’s Confidential Information solely as necessary to exercise its rights or perform its obligations under this Agreement, (ii) not disclose such Confidential Information to any third party except to its employees, contractors, and advisors who have a need to know and who are bound by confidentiality obligations at least as protective as those set forth herein, and (iii) protect such Confidential Information using at least a reasonable degree of care, and in no event less than the degree of care it uses to protect its own information of a similar nature.
6.3 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate: (i) is or becomes publicly available without breach of this Agreement, (ii) was known to the Receiving Party prior to disclosure without restriction, (iii) is independently developed without use of or reference to the Disclosing Party’s Confidential Information, or (iv) is rightfully obtained from a third party without restriction.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law or valid legal process, provided that, to the extent legally permitted, it gives the Disclosing Party prompt notice and reasonable assistance to seek protective treatment.
6.5 Return or Destruction. Upon written request of the Disclosing Party or termination of this Agreement, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information, except for copies retained in routine backups or as required for legal or compliance purposes, subject to continued confidentiality obligations.
6.6 Equitable Relief. The parties acknowledge that unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages may be insufficient, and the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief, in addition to any other remedies available at law or in equity.
7. Intellectual Property; Ownership.
7.1 Title; Not a Sale of Bonsai IP. Title to the Hardware passes to Customer only upon Bonsai’s receipt of full payment. Notwithstanding the foregoing, and except for title to the physical Hardware unit itself, no right, title, or interest in or to any intellectual property is transferred to Customer. The sale of Hardware does not transfer any intellectual property rights in the Hardware design, architecture, or embedded Software. As between the parties, Bonsai retains all right, title, and interest in and to:(a) the design, specifications, architecture, and underlying technology of the Hardware; and (b) all firmware, software, source code, object code, operating systems, APIs, models, algorithms, data structures, user interfaces, documentation, and other materials embedded in, installed on, bundled with, delivered with, or used in connection with the Hardware; and (c) all improvements, modifications, derivative works, updates, and enhancements of the foregoing (collectively, the “Bonsai IP”). All Bonsai IP is expressly excluded from the sale. Software, Web Services, Tools, and Documentation included in Bonsai Solutions are licensed, not sold.
7.2 Ownership; Feedback. As between the parties, and except for title to Hardware as expressly provided in Section 7.1, and the limited license rights granted to Customer herein to access and use the Software, Web Services, Tools, and Documentation, Bonsai retains all other right, title, and interest in and to all Bonsai Solutions, and all related intellectual property and proprietary rights, and all derivatives or modifications of or to the Bonsai Solutions. All rights not expressly granted herein are reserved by Bonsai, and no rights are granted by implication, estoppel, or otherwise. Additionally, with respect to any suggestions, feedback, or other input provided by Customer regarding the Bonsai Solutions (“Feedback”), such Feedback shall be Bonsai Confidential Information and Customer grants Bonsai a perpetual, irrevocable, royalty-free right to use and exploit any Feedback provided by Customer regarding the Bonsai Solutions, without restriction or obligation (including to account or pay any license fees), and without conferring any ownership rights on Customer.
8. Warranties; Disclaimers; Recalls.
8.1 Hardware Limited Warranty; Exclusive Remedy. Bonsai warrants that the Hardware (excluding any Limited-Warranty-Items (defined below)) will, under normal use and in accordance with the applicable Documentation, be free from material defects in materials and workmanship for a period of twelve (12) months from the date of delivery to the carrier (the “Hardware Warranty Period”). During the Hardware Warranty Period, Bonsai’s sole obligation, and Customer’s exclusive remedy, for any breach of the foregoing warranty shall be, at Bonsai’s option, to: (a) repair the nonconforming Hardware; (b) replace the nonconforming Hardware (or applicable component) with new or refurbished Hardware of equal or greater functionality; or (c) if repair or replacement is not commercially reasonable, accept return of the affected Hardware and refund the amount actually paid for such Hardware. Replacement parts or units may be new or refurbished and are warranted for the remainder of the original Warranty Period or ninety (90) days, whichever is longer. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY WITH RESPECT TO HARDWARE (EXCLUDING THE LIMITED-WARRANTY-ITEMS ADDRESSED BELOW).
8.2 Limited-Warranty-Items. The foregoing Hardware warranty does not apply to the following Hardware: (a) consumables or normal wear-and-tear items; (b) batteries, battery chargers, charging kits, cables, connectors, mounts, bulbs, exterior enclosures and similar accessories (“Limited-Warranty-Items”), except as stated below. Bonsai will pass through to Customer any assignable manufacturer warranties for the Limited-Warranty-Items. Where no such warranty exists, Bonsai warrants Limited-Warranty-Items against material defects in materials and workmanship for ninety (90) days from delivery, limited to repair or replacement at Bonsai’s option. During this warranty period, Bonsai’s sole obligation, and Customer’s exclusive remedy, for any breach of the foregoing warranty shall be, at Bonsai’s option, to: (a) repair the nonconforming items; (b) replace the nonconforming item or component with new or refurbished replacement of equal or greater functionality; or (c) if repair or replacement is not commercially reasonable, accept return of the item and refund the amount actually paid for such Limited-Warranty-Items. Replacement parts or units may be new or refurbished and are warranted for the remainder of the original ninety (90) day warranty period. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY WITH RESPECT TO THE LIMITED-WARRANTY-ITEMS.
8.3 Hardware Warranty Conditions and Limitations. This warranty applies only if the Hardware: (a) has been installed, operated, and maintained in accordance with the Documentation; (b) has not been modified, altered, or repaired by anyone other than Bonsai or its authorized service providers; and (c) has not been subjected to misuse, abuse, negligence, accident, improper storage or handling, or use outside specified environmental or operating conditions. The Hardware warranty does not apply to damage or defects caused by operating the Hardware contrary to Bonsai’s guidelines, Customer or third-party servicing or altering the Hardware, Customer’s failure to use, maintain, store, install the Hardware in accordance with relevant Documentation, normal wear and tear, damage, negligence, or abnormal storage or working conditions. The warranty provided in this Section will not apply if: (i) Customer fails to notify Bonsai in writing during the Hardware Warranty Period of the defect; (ii) Customer fails to promptly provide Bonsai with detailed description of any claimed defect or malfunction; or (iii) Customer fails to implement all Updates to Software made available at no charge to Customer during the Hardware Warranty Period. All Hardware warranty returns are subject to Bonsai’s return material authorization (RMA) process.
8.4 Free Bundled Software; Tools. Any software, tools, utilities, SDKs, APIs, sample code, or other materials provided at no additional charge in connection with the Hardware are provided on an “as-is” and “as-available” basis. Bonsai shall have no obligation to provide any maintenance, support, updates, upgrades, or other services for Bundled Software and Tools. Any such maintenance, support, updates, upgrades, or services may be provided by Bonsai in its sole discretion and may be modified, suspended, or discontinued at any time without notice. Customer acknowledges that Bundled Software and Tools may be changed or discontinued at any time and that continued availability is not guaranteed.
8.5 General Disclaimers; Disclaimer of Other Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY BONSAI WITH RESPECT TO THE BONSAI SOLUTION(S), AND BONSAI DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. BONSAI DOES NOT WARRANT THAT THE BONSAI SOLUTIONS PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT ANY BONSAI SOLUTION WILL SUCCEED IN RESOLVING ANY PROBLEM.
8.6 Accuracy of Information; Assumption of Risk. While Bonsai endeavors to ensure that any analytics, telemetry, or other data generated, captured, or made available through the Bonsai Solution(s) is complete, accurate, and current, Bonsai does not warrant or guarantee the accuracy, completeness, or timeliness of such data. Customer understands that Bonsai Solutions may have errors, may return inaccurate information that does not accurately reflect real people, places, or facts. Prior to any use of the data generated in connection with use of the Bonsai Solutions, Customer and its Users will make their own determinations as to the safety, efficacy, accuracy, lawfulness, and appropriateness of such data for any given use. Customer understands that it is responsible to monitor usage and output from Bonsai Solutions and that Customer is ultimately responsible for all activities of the Bonsai Solutions to the fullest extent permitted by applicable laws. Additionally, to the extent artificial intelligence tools are incorporated or used, Customer acknowledges and agrees that (a) artificial intelligence tools are novel and experimental, and that therefore there is significant uncertainty regarding the operation of such tools, (b) Bonsai Solutions are not fully autonomous and require human supervision and human intervention from time to time, and (c) performance of Bonsai Solution(s) depends on factors that may be out of the control of the provider, including environmental conditions (dust, light, terrain, weather, crop density) which can be unpredictable, and Bonsai cannot and does not warrant error free operation of Bonsai Solution(s). CUSTOMER’S AND ITS USERS’ USE OF THE BONSAI SOLUTIONS IS AT CUSTOMER’S SOLE RISK AND UNDERSTANDING THAT THERE ARE RISKS IN RUNNING SUCH SOLUTIONS WHICH ARE NOT FAIL PROOF.
8.7 Product Recalls and Safety Actions. If Bonsai determines that any Hardware is subject to a safety recall or similar corrective action, Bonsai may require Customer to cease use of the affected Hardware and follow Bonsai’s instructions for repair, replacement, or return. Bonsai will bear reasonable costs associated with such recall remedy. Customer shall reasonably cooperate with any recall or corrective action.
8.8 Purchase of Extended Warranties. If Customer purchases an extended warranty for any Bonsai Hardware, the applicable warranty period for such Bonsai Hardware shall be extended for the duration specified in the applicable Order, and such extended warranty period shall supersede the standard warranty period otherwise set forth herein with respect to such Bonsai Hardware.
9. Limitation of Liability.
9.1 Limitation on Indirect and Consequential Damages. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, AND SUBJECT TO SECTION 9.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT WITH RESPECT TO CLAIMS BASED UPON CUSTOMER’S USE OF THE BONSAI SOLUTION(S) OUTSIDE THE SCOPE OF THE LICENSE RIGHTS GRANTED HEREIN OR IN BREACH OF THE LICENSE RESTRICTIONS SET FORTH HEREIN, ANY LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, LOSS OF DATA, OR BUSINESS INTERRUPTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), WARRANTY, OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Maximum Aggregate Liability. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AND SUBJECT TO SECTION 9.3, IN NO EVENT SHALL BONSAI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID AND DUE TO BONSAI UNDER THE RELEVANT ORDER.
9.3 Exclusions from Liability Limitations. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIMITATION OR EXCLUSION IS PROHIBITED BY APPLICABLE LAW OR WITH RESPECT TO: (a) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (b) A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (c) CUSTOMER’S USE OF THE BONSAI SOLUTION(S) OUTSIDE THE SCOPE OF THE LICENSE RIGHTS GRANTED HEREIN OR IN BREACH OF THE LICENSE RESTRICTIONS SET FORTH HEREIN; (d) A PARTY’S INDEMNIFICATION OBLIGATIONS; OR (e) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9.4 Excluded Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BONSAI SHALL NOT BE LIABLE TO THE EXTENT ANY LOSS, DAMAGE, INJURY, OR CLAIM ARISES FROM OR RELATES TO:
(a) CUSTOMER’S MISUSE, ABUSE, MODIFICATION, ALTERATION, OR UNAUTHORIZED REPAIR OF THE BONSAI SOLUTION(S);
(b) CUSTOMER’S FAILURE TO COMPLY WITH THIS AGREEMENT, THE SAFETY GUIDE, THE DOCUMENTATION, OR ANY APPLICABLE LAWS, REGULATIONS, OR INDUSTRY STANDARDS;
(c) OPERATION OR USE OF THE BONSAI SOLUTION(S) OUTSIDE OF THEIR INTENDED PURPOSE, DESIGN SPECIFICATIONS, OR OPERATING PARAMETERS;
(d) OPERATION OR USE OF THE BONSAI SOLUTION(S) FOR HIGH-RISK USES PROHIBITED HEREUNDER;
(e) DAMAGE TO CROPS, PLANTS, TREES, VINES, SOIL, OR AGRICULTURAL YIELDS, INCLUDING ANY LOSS OF HARVEST, REDUCED YIELD, OR DIMINUTION IN AGRICULTURAL OUTPUT, EXCEPT TO THE EXTENT DIRECTLY CAUSED BY BONSAI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
(f) ENVIRONMENTAL OR SITE CONDITIONS OUTSIDE BONSAI’S CONTROL, INCLUDING TERRAIN CONDITIONS, WEATHER, OBSTACLES, VEGETATION, SOIL CONDITIONS, OR OTHER CONDITIONS AT CUSTOMER’S FACILITY OR OPERATING LOCATION THAT AFFECT OPERATION OR PERFORMANCE OF THE BONSAI SOLUTION(S).
(g) ANY FAILURE, INTERRUPTION, OR LIMITATION OF INTERNET CONNECTIVITY, NETWORK INFRASTRUCTURE, GPS SIGNAL, CELLULAR SERVICES, POWER SUPPLY, OR OTHER CUSTOMER- OR THIRD-PARTY-PROVIDED INFRASTRUCTURE REQUIRED FOR THE OPERATION OR SUPPORT OF THE BONSAI SOLUTION(S).
(h) COMBINATION OF THE BONSAI SOLUTION(S) WITH ANY THIRD-PARTY HARDWARE, SOFTWARE, OR SYSTEMS NOT PROVIDED BY BONSAI;
(i) ANY ACTS OR OMISSIONS OF CUSTOMER OR ANY THIRD PARTY ; OR
(j) CLAIMS RELATED TO OPERATION OR USE OF THIRD-PARTY PRODUCTS.
10. Termination.
10.1Termination for Cause. Either party may terminate this Agreement or any affected Order upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of notice.
10.2 Effect of Termination. Upon expiration or termination of this Agreement or any Order: (a) Customer retains ownership of Hardware that has been fully paid for, (b) all rights to Bundled Software and Tools terminate as set forth above and Customer shall cease all use of the same, (c) Bonsai may remotely disable, suspend, or limit functionality of Bundled Software and Tools, (d) Customer shall promptly discontinue use of all Bundled Software and Tools, upon request, certify deletion or destruction of Bonsai-provided Bundled Software in its possession. Termination does not relieve Customer of any accrued payment obligations.
10.3 Survival. Provisions that by their nature should survive (including ownership, license restrictions, license termination provisions, payment obligations, limitations of liability, disclaimers, data rights, and confidentiality) shall survive expiration or termination. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Sections 2 and section 4-12, and all accrued rights to payment, shall survive any termination of this Agreement.
11. Indemnification.
11.1 Indemnification by Bonsai. Bonsai will defend and indemnify Customer from and against all claims, liabilities, loss, cost and expense (“Losses”) incurred as a consequence of a third party claim, demand, action or proceeding to the extent resulting from any actual or alleged infringement of any intellectual property rights of any third party by the Bonsai Solution(s) as delivered by Bonsai, when used by Customer as permitted hereunder.
11.2 Indemnification by Customer. Customer will defend and indemnify Bonsai from and against any Losses arising out of any third-party claim, demand, action or proceeding to the extent resulting from (a) Customer Data, (b) the operation, control, or use of the Robot outside the intended use or operating parameters or in violation of this Agreement;(c) Customer’s failure to maintain a safe operating environment or to comply with applicable safety guidelines; (d) Customer’s failure to comply with applicable laws, rules, or regulations in connection with its use or deployment of the Robot, including those relating to data privacy, export controls, workplace safety, or operation of autonomous or robotic systems.
11.3 Procedure. The indemnifying party’s obligations in this Section are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Robot, when Bonsai is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
11.4 Mitigation. In response to any actual or alleged infringement or misappropriation claim, or if Bonsai determines such action is reasonably necessary to avoid material liability, Bonsai may, at its option and expense: (a) procure for Customer the right to continue using the affected Bonsai Solution(s); (b) replace or modify the affected Bonsai Solution(s), or the allegedly infringing portion thereof, so that it becomes non-infringing, provided that such replacement or modification does not materially reduce the functionality of the Robot; or (c) if clauses (a) and (b) are not commercially reasonable, terminate Customer’s rights with respect to the affected Bonsai Solution, require Customer to return the affected Bonsai Solution, and refund to Customer the fees actually paid to Bonsai for the affected Bonsai Solution, less straight-line depreciation over five (5) years.
11.5 Exceptions. Bonsai’s obligations in this Section 11.1 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Bonsai Solution or use of Bonsai Solution in combination with items not provided by Bonsai; (b) to unauthorized use of Bonsai Solution; (c) if Customer settles or makes any admissions about a claim without Bonsai’s prior consent; or (d) free or evaluation use of Bonsai Solution.
11.6 Exclusive Remedy. THIS SECTION SETS OUT CUSTOMER’S EXCLUSIVE REMEDY AND BONSAI’S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
12. General Terms.
12.1 Inherent Risk; Hazardous Operation. Customer acknowledges that the Bonsai Solution(s) involve moving mechanical components, automated decision-making, and interaction with physical environments, and may present risks of personal injury, death, or property damage when installed, configured, operated, or maintained. Customer agrees that it is solely responsible for ensuring that the Bonsai Solution(s) are used, operated and maintained in a safe manner, in accordance with the Documentation, safety instructions, and applicable laws and industry standards.
12.2 Regulatory Compliance and Certification. Unless expressly stated in writing by Bonsai in the relevant Order or applicable specifications in the Documentation, the Customer acknowledges that the Bonsai Solutions have not been certified or approved under any specific regulatory, governmental, or industry standards. Customer acknowledges that it is solely responsible for determining the suitability of the Bonsai Solutions for Customer’s intended use and for ensuring Customer’s compliance with all applicable laws, regulations, safety standards, and permitting requirements in jurisdictions where the Bonsai Solution(s) are deployed and for obtaining any appropriate certifications (if any) for Customer’s use and deployment of Bonsai Solution(s).
12.3 Operational Control; Autonomy Limitations. Customer retains sole responsibility for the operation, supervision, and control of the Bonsai Solutions obtained hereunder. Customer shall ensure that appropriately trained personnel supervise operation of the Bonsai Solution(s) at all times. Customer is solely responsible to ensure that all applicable safety procedures, industry standards, and manufacturer instructions are followed with respect to the use of Bonsai Solutions. Customer acknowledges that the Bonsai Solution(s) are intended to assist Customer operations and do not replace human judgment, supervision, or operational control. Customer assumes full responsibility for maintaining appropriate human oversight, safety procedures, and operational controls.
12.4 Insurance. During the Term and for at least two (2) years thereafter with respect to any Bonsai Solutions that are in operation, Customer shall maintain, at its own expense, insurance coverage consistent with industry standards for the operation of Bonsai Solution, including at minimum: Commercial General Liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate, including products-completed operations coverage; and (b) Workers’ Compensation insurance as required by applicable law. Such policies shall name Bonsai as an additional insured with respect to liabilities arising from Customer’s use, operation, or deployment of Bonsai Solution(s), include a waiver of subrogation in favor of Bonsai, and provide that coverage may not be cancelled without at least thirty (30) days prior written notice. Upon request, Customer shall provide certificates of insurance evidencing the required coverage.
12.5 International Considerations; Export Compliance.
(a) U.S. Compliance. Bonsai Hardware is designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in English (U.S.). The Hardware provided hereunder is not intended for use outside of the United States and may only be purchased by residents of the United States.
(b) Export Regulations. The Bonsai Solution(s) are subject to U.S. export controls, including the Export Administration Regulations. Customer agrees to 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. Customer shall not transfer, export or re-export, directly or indirectly, the Bonsai Solution(s) in violation of any export law or regulation, and Customer affirms that Customer 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.
12.6 Government End-Users. The Bonsai Solution(s) and all related documentation, technical data, and materials are “commercial items,” “commercial computer software,” and “commercial computer software documentation,” as applicable, developed exclusively at private expense. If the user, licensee, or acquirer of any Bonsai Solution(s) is an agency, department, or other entity of the United States Government, then, to the maximum extent permitted by applicable law, such Bonsai Solution(s) are provided only with the rights and restrictions set forth in these Terms. Consistent with Federal Acquisition Regulation (“FAR”) 12.212 and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202, all use, duplication, reproduction, release, modification, disclosure, or transfer of the Bonsai Solution(s), including any related documentation or technical data, is subject to and limited by these Terms. No greater rights are granted to the U.S. Government than those provided to non-government customers. All rights not expressly granted are reserved by Bonsai.
12.7 Remote Access; Deactivation. To the extent the Bonsai Solution(s) include remote connectivity, Customer acknowledges and agrees that Bonsai may, consistent with this Agreement: (a) access, monitor, and manage the Bonsai Solution(s) systems for purposes of providing, maintaining, securing and improving its products and services, (b) remotely disable, suspend, or limit functionality of Bundled Software or Tools upon expiration or termination of applicable rights, and (c) remotely delete or render inaccessible Bundled Software and/or Tools and Bonsai proprietary components residing on the Hardware upon termination of applicable licenses. Further, Customer agrees that Customer shall not (and shall not permit any third party to) interfere with or block such remote access or functionality.
12.8 Infrastructure; Customer Systems. Customer will provide and maintain any Customer hardware, software, computers, servers, software, databases, electronic systems (including database management systems) and networks, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Bonsai Solution(s) in accordance with the instructions on use in relevant Documentation.
12.9 Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Bonsai may include Customer’s name in Bonsai’s customer lists but will cease further use at Customer’s written request. Bonsai must obtain prior written consent to use the Customer’s name or trademarks in any Bonsai promotional materials and Customer’s consent may be revoked at any time at Customer’s sole discretion with written notice to Bonsai.
12.10 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 nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
12.11 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 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.
12.12. 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.
12.13 Assignment. Customer may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of Bonsai.
12.14 Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Santa Clara County, California and both parties submit to the personal jurisdiction of those courts.
12.15 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.
12.16 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.
12.17 Amendments. Except as otherwise expressly stated in this Agreement, no variation of this Agreement will be legally binding on either party unless in writing and signed by both parties.
12.18 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (each a “Force Majeure Event”).
12.19 Third Party Products. “Third Party Products” means any third-party hardware, software, services, subscriptions, licenses, platforms, add-ons, equipment, or other products or services not provided by Bonsai, whether separately obtained by Customer or resold by Bonsai to Customer. Third Party Products are excluded from the definition of Bonsai Solution(s). Any Third Party Products resold by Bonsai will be separately identified in the applicable Order. Customer acknowledges and agrees that: (a) Third Party Products are subject to separate terms between Customer and the applicable third-party provider (“Third Party Terms”); (b) Bonsai is not a party to, and has no responsibility or liability for, any Third Party Products, Third Party Terms, or the security, availability, interoperability, operation, maintenance, or functionality of any Third Party Products, including how any third-party provider uses Customer Data; and (c) Customer is solely responsible for the procurement, maintenance, security, and operation of all Third Party Products. By enabling or permitting any interoperability, integration, connection, access, or data exchange between Bonsai Solution(s) and any Third Party Product(s), Customer authorizes Bonsai and its service providers to access, process, transfer, disclose, receive, store, and exchange Customer Data with the applicable Third Party Product(s) and providers as necessary to facilitate such functionality or services. Customer represents and warrants that it has obtained and will maintain all rights, permissions, notices, and consents necessary for the foregoing and for compliance with applicable law, privacy obligations, and Third Party Terms. Except as expressly set forth herein, this Agreement does not apply to Third Party Products, and Bonsai disclaims all warranties, indemnities, and liabilities relating thereto. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, BONSAI’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO ANY THIRD PARTY PRODUCTS SHALL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY BONSAI FROM CUSTOMER FOR THE APPLICABLE THIRD PARTY PRODUCTS.
12.20 Entire Agreement. This Agreement constitutes the entire understanding of the parties as to the subject matter hereof and supersedes all prior offers, agreements, arrangements, negotiations and understanding, written or oral between the parties relating to that subject matter. The parties agree that any additional or different terms and conditions contained on, referenced by or incorporated into any purchase order issued by Customer are expressly rejected and shall not be considered an amendment to this Agreement. This Agreement and its terms and conditions apply to the exclusion of all other terms.