Thanks for using ATOMWORKS’s Cloud Services. These ATOMWORK Test Platform Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Services.
This ATOMWORK Test Platform Terms of Service (the "Agreement") is made and entered into by and between ATOMWORKS and the entity or person agreeing to these terms ("Customer"). By accessing or using the Cloud Services, Customer agrees to this Agreement on behalf of itself and its Users, and represents and warrants that Customer has full authority to bind itself and its Users to this Agreement. If Customer does not agree to this Agreement, Customer may not access or use the Cloud Services, and Customer must immediately notify ATOMWORKS to cancel the Cloud Services. If Customer is accepting this Agreement on behalf of another person or other legal entity, Customer represents and warrants that Customer has full authority to bind that person or legal entity to this Agreement.
These Terms are between You and the ATOMWORKS entity that owns or operates the Cloud Product that you are using or accessing listed here (“ATOMWORKS”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.
PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY. These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Cloud Product, whichever is earlier (the “Effective Date”).
These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for a Cloud Product, create a Cloud Product account, or place an Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product.
Article 1.
What these Terms cover
1.1. Cloud Services.
These Terms govern our Cloud Services (ATOMWORK Test Platform) Agreement, related (administration, analysis and support), and Additional Services. These Terms include Our Policies (including but not limit our Privacy Policy), the Product-Specific Terms, and your Orders.
1.2. Product-Specific Terms.
Some Cloud Services may be subject to additional terms specific to that product as set forth in the Product-Specific Terms. By accessing or using a product covered by the Product-Specific Terms, you also agree to the Product-Specific Terms.
1.3. Expanded Coverage Addendum.
Certain qualifying Cloud Services are also subject to the Expanded Coverage Addendum, as specified in such terms.
1.4. Software Products Not Covered.
These Terms do not apply to our downloadable software products (currently designated as “Server” and “Data Center” deployments), use of which requires a separate license agreement with us. For clarity, however, any client software (e.g., a desktop or mobile application) we provide as part of the Cloud Services themselves remains subject to these Terms.
Article 2.
How Cloud Services are administered
2.1. Administrators.
Through the Cloud Services, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of Cloud Services and End User Accounts. This may include making Orders for Cloud Services or enabling Apps (which may incur fees); creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. Administrators may also take over management of accounts previously registered using an email address belonging to your domain (which become “managed accounts”, as described in our Documentation). Without limiting Article 2.3 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Cloud Services for you.
2.2. End User Consent.
You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) ATOMWORKS’s provision of the Cloud Services to Administrators and End Users. You will provide evidence of such consents upon our reasonable request.
2.3. Responsibility for End Users.
Our Cloud Services have various user onboarding flows. Some Cloud Services require users to be designated by Administrators; some allow users to sign up for individual accounts which can become associated with teams or organizations at a later time; and some may allow users to invite other users. You are responsible for understanding the settings and controls for each Cloud Product you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access a Cloud Product, then we are only required to provide the Cloud Services to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the Cloud Services. Some Cloud Services may allow you to designate different types of End Users, in which case pricing and functionality may vary according to the type of End User. You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data, even if those End Users are not from your organization or domain. We may display our User Notice to End Users at sign up, account creation, Cloud Product registration, or in-product. If you use single sign-on (SSO) for identity management of your Cloud Product(s) such that End Users will bypass these screens and our User Notice, you are responsible for displaying our User Notice to End Users and for any damages resulting from your failure to do so.
2.4. Credentials.
You must require that all End Users keep their user IDs and passwords for the Cloud Services strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
2.5. Age Requirement for End Users.
The Cloud Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all End Users are at least 18 years old.
2.6. Domain Name Ownership.
Where you are required to specify a domain for the operation of a Cloud Product or certain Cloud Product features, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the Cloud Product or Cloud Product features.
Article 3.
RIGHT OF USE AND RESTRICTIONS
3.1. Access to Cloud Services.
Subject to these Terms and during the applicable Subscription Term, you may access and use the Cloud Services for your own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the Cloud Services, to download and use the client software associated with the Cloud Services. The rights granted to you in this Article 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2. Support.
During the Subscription Term, we will provide Support for the Cloud Services in accordance with the Support Policy, Enterprise Support and Services Policy (to the extent applicable), and the applicable Order.
3.3. Restrictions.
(a) Except as otherwise expressly permitted in these Terms, you will not and will not allow third parties to:
(b) reproduce, modify, adapt or create derivative works of the Cloud Services;
(c) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Services to a third party;
(d) license, sublicense, access, use, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Cloud Services available to any third party;
(e) access or use the Cloud Services to build or support any products or services competitive with the Cloud Services;
(f) use the Cloud Services to conduct fraudulent activities;
(g) attempt to gain unauthorized access to the Cloud Services, engage in any denial of service attacks, or otherwise cause immediate, material or ongoing harm to ATOMWORKS, its provision of the Cloud Services, or to others;
(h) impersonate or misrepresent an affiliation with a person or entity;
(i) access or use the Cloud Services for monitoring the availability, security, performance, functionality, or for any other benchmarking or competitive purposes without ATOMWORKS’s express written permission;
(j) falsely identify itself or provide any false information to establish any account that will be used to gain access to and/or use of the ATOMWORKS Products;
(k) use the Cloud Services to initiate or propagate Malware;
(l) use the Cloud Services as an HTTP server that allows third-party relay or proxy of web traffic; or
(m) use the Cloud Services in a manner that violates applicable law or regulation, infringes on the rights of any person or entity, or violates this Agreement;
(n) use the Cloud Services for the benefit of any third party;
(o) incorporate any Cloud Services into a product or service you provide to a third party;
(p) interfere with or otherwise circumvent mechanisms in the Cloud Services intended to limit your use;
(q) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);
(r) remove or obscure any proprietary or other notices contained in any Cloud Product;
(s) use the Cloud Services for competitive analysis or to build competitive products;
(t) publicly disseminate information regarding the performance of the Cloud Services; or
(u) encourage or assist any third party to do any of the foregoing.
Each of (a) to (t) is a Prohibited Use. A Prohibited Use is a material breach of this Agreement in ATOMWORKS’s sole discretion.
Article 4.
DATA PRIVACY AND PROTECTION
4.1. Security and Certifications.
We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. We also maintain a compliance program that includes independent third-party audits and certifications. Our Trust Center, as updated from time to time, provides further details on our security measures and certifications.
4.2. Privacy.
We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the Cloud Services and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.
4.3. Improving Cloud Services.
We are always striving to improve the Cloud Services. In order to do so, we use analytics techniques to better understand how our Cloud Services are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.
4.4. Subpoenas.
Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so. ATOMWORKS strives to balance your privacy rights with other legal requirements.
4.5.
To the extent you disclose or transmit your Data to a third party, ATOMWORKS is no longer responsible for the security, integrity or confidentiality of such content outside of ATOMWORKS’s control.
Article 5.
Terms that apply to Your Data
5.1. Using Your Data to provide Cloud Services to You.
You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Services. Subject to these Terms, and solely to the extent necessary to provide the Cloud Services to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Services with End User permission in order to respond to your support requests.
5.2. Your Data Compliance Obligations.
You and your use of Cloud Services (including use by your End Users) must comply at all times with these Terms, the Acceptable Use Policy and all Laws. You represent and warrant that:
(i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud Services and to grant the rights granted to us in these Terms and
(ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Article 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Services.
5.3. No Prohibited Sensitive Personal Information.
You will not submit to the Cloud Services (or use the Cloud Services to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable Cloud Product in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.
5.4. Your Indemnity.
You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Article 2.2 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of Cloud Services, (ii) your breach (or alleged breach) of Articles 5.2 (Your Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.
5.5. Removals and Suspension.
We have no obligation to monitor any content uploaded to the Cloud Services. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Cloud Services or (2) suspend your access to the Cloud Services. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Services as described in this Article 5.5.
Article 6.
Using third-party products with the Cloud Services
6.1. Third-Party Products.
You (including your End Users) may choose to use or procure other third party products or services in connection with the Cloud Services, including Third Party Apps (see Article 6.2 (Marketplace Apps)) or implementation, customization, training or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider.
If you enable or use third party products or services with the Cloud Services (including Third Party Apps as referenced in Article 6.2 (Marketplace Apps)), we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with the Cloud Services. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
6.2. Application.
As further described in the ATOMWORKS Terms of Use, the ATOMWORKS Platform provide variety of Apps that may be used with Cloud Services, including both ATOMWORKS Apps and Third Party Apps. ATOMWORKS Apps for Cloud Services are considered “Cloud Services” under these Terms (unless we specify otherwise through the ATOMWORKS Platform). Third Party Apps are not Cloud Services and remain subject to their own applicable Vendor Terms. We may enable interoperation of the Cloud Services with Third Party Apps as set forth in Article 6.1 (Third-Party Products).
Article7.
Additional Services
7.1. Additional Services.
Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us, including the Enterprise Support and Services Policy.
7.2. Our Deliverables.
We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Cloud Services, subject to the same usage rights and restrictions as for the Cloud Services. For clarity, Our Deliverables are not considered Cloud Services, and any Cloud Services are not considered to be Our Deliverables.
7.3. Your Materials.
You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any Cloud Services, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.
7.4. Training Not Covered.
Your purchase, and our provision, of Training is subject to our Training Terms and Policies, which is a separate agreement.
Article 8.
Billing, and payment
8.1. Payment Plans.
Except for No-Charge Products, all Cloud Services are offered either on a customized plan or an annual subscription basis.
8.2. Order Change.
You may add test program or otherwise increase your use of Cloud Services by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
8.3. Payment.
You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to ATOMWORKS by emailing the PO number to services@atomworks.io. For Additional Services provided at any non- ATOMWORKS location, unless otherwise specified in your Order, you will reimburse us for our pre-approved travel, lodging and meal expenses, which we may charge as incurred. Other than as expressly set forth in 16.3 (Warranty Remedy) or Article 20 (Changes to these Terms), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
8.4. Delivery.
We will deliver the login instructions for Cloud Services to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
Article 9.
Taxes not included
9.1. Taxes.
Your fees under these Terms exclude any taxes or duties payable in respect of the Cloud Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
9.2. Withholding Taxes.
You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
Article 10.
No contingencies on other products of future functionality
You acknowledge that the Cloud Services and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Services and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Services beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
Article 11.
Evaluations, trials, and betas
We may offer certain Cloud Services to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Article 11, the terms and conditions of these Terms governing Cloud Services, including Article 3.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta Cloud Services, and any pre-release and beta features within generally available Cloud Services, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Cloud Services. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Article 11. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$10.
Article 12.
IP Rights in the Cloud Services and Feedback
Cloud Services are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Services). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
Article 13
INTELLECTUAL PROPERTY RIGHTS
13.1. Ownership
The ATOMWORKS Products, Documentation and the software underlying the Cloud Services are strictly confidential to ATOMWORKS. ATOMWORKS products, technologies and cloud services are developed by ATOMWORKS and are ATOMWORKS's own technology.
ATOMWORKS (or its licensors) own exclusively and reserve all right, title and interest in and to the ATOMWORKS Products, Documentation and the software underlying the Cloud Services, including all related Intellectual Property Rights as well as any Derivative Works. you agree, on behalf of itself and its Affiliates, that you and your Affiliates will take no action inconsistent with ATOMWORKS’s Intellectual Property Rights.
13.2. Reserved Rights
You may not exercise any right, title and interest in and to the ATOMWORKS Products, Documentation, the software underlying the Cloud Services or any related Intellectual Property Rights, except for the limited access and usage rights granted to you in this Agreement.
This Agreement is not an agreement of sale, and this Agreement does not transfer any title, Intellectual Property Rights or ownership rights to the ATOMWORKS Products, Documentation, or the software underlying the Cloud Services to you.
You acknowledge and agrees that the ATOMWORKS Products, Documentation, and the software underlying the Cloud Services, and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the foregoing, and all other improvements, revisions, corrections, modifications, enhancements, releases, detection definition files (or DATs, also referred to as signature files, being the code anti-malware software uses to detect and repair viruses, Trojan horses and potentially unwanted programs), signature sets, content, and other updates in, of, or to the Cloud Services or the software underlying the Cloud Services, all Derivative Works based on any of the foregoing, and all copies of the foregoing are trade secrets and reserved to and proprietary property of ATOMWORKS, having great commercial value to ATOMWORKS.
Article 14.
CONFIDENTIALITY
14.1. Each party acknowledges that it may have access to Confidential Information of the other party in connection with this Agreement, and that each party's Confidential Information is of substantial value to the Disclosing Party, which could be impaired if it were improperly disclosed to third parties or used in violation of this Agreement.
Each Recipient of Confidential Information under this Agreement must:
(a) keep the Disclosing Party's Confidential Information confidential and protect it at least to the same extent it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information;
(b) not use the Disclosing Party's Confidential Information in any way for its own account or the account of any third party except to perform its duties, exercise its rights or is otherwise authorized under this Agreement; and
(c) not disclose the Disclosing Party's Confidential Information except to perform its duties or exercise its rights under this Agreement or as otherwise authorized under this Agreement, provided that:
(d) any disclosure made to the Recipient's employees, contractors or agents is on a need-to-know basis; and
(e) the Recipient's employees, contractors or agents in receipt of the Confidential Information are under an obligation of confidentiality no less stringent than that set forth in this Article.
14.2. Notwithstanding the restrictions in Article 14.2, if the Recipient is required to disclose any of the Disclosing Party's Confidential Information by law, such as in response to a subpoena or requirement of any court, arbitral, administrative, or legislative body, the Recipient must:
(a) where reasonably possible and permitted, immediately provide written notice to the Disclosing Party of the required disclosure to give the Disclosing Party an opportunity to move for a protective order or otherwise prevent the disclosure;
(b) disclose only the minimum amount of Confidential Information required to satisfy the legal obligation; and
(c) assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the Confidential Information to be disclosed.
14.3. Company will immediately notify ATOMWORKS if Confidential Information of ATOMWORKS is used or disclosed in breach of this Agreement. As monetary damages may not be sufficient relief if anyone violates or threaten to violate the terms of this Article, ATOMWORKS is immediately entitled to enforce its rights by specific performance or injunction proceedings, in addition to any other rights or remedies it may have.
14.4. Upon the Disclosing Party's request and upon termination of this Agreement (unless agreed otherwise by the parties at the time), each party will return, destroy or delete permanently (at the Disclosing Party's election) the other party's Confidential Information.
14.5. On termination of this Agreement, the Recipient must continue to keep the Disclosing Party's Confidential Information confidential for three (3) years in accordance with this Article.
Article 15.
Term and Termination
15.1. Term.
These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
15.2. Termination for Cause.
Either party may terminate these Terms (including all related Orders) if the other party
(a) fails to cure any material breach of these Terms within thirty (30) days after notice;
(b) ceases operation without a successor; or
(c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
15.3. Suspension or Termination of Cloud Service by ATOMWORKS
ATOMWORKS may suspend or terminate the Cloud Services:
(a) immediately if ATOMWORKS considers it necessary to prevent or terminate any actual or suspected Prohibited Use; or
(b) upon notice to Company if:
(i) Company commits a material breach of this Agreement;
(ii) ATOMWORKS receives notice from Authorized Partner that Company is in material breach of the Agreement (including Company’s Agreement with Authorized Partner);
(iii) ATOMWORKS reasonably determines that the volume of data being transmitted or processed through the Cloud Services under
Company’s account is significantly greater than the average use or may cause degradation of the Cloud Services for
Company or other customers; or
(iv) there is a threat to the security and integrity of the hosted environment or Company Data.
Suspension or termination of Cloud Services by ATOMWORKS will be without prejudice to any rights or liabilities accruing before or during the
suspension, including Company's obligation to pay fees.
15.4. Termination for Convenience.
You may choose to stop using the Cloud Services and terminate these Terms (including all Orders) at any time for any reason upon written notice to us , upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
15.5. Effects of Termination.
Upon any expiration or termination of these Terms, you must cease using all Cloud Services and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Services during the applicable Subscription Term. If you terminate these Terms in accordance with Article 15.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Article 15.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
15.6. Survival.
The following provisions will survive any termination or expiration of these Terms: Articles 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 8.4 (Payment), 9 (Taxes not included), 11 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 12 (IP Rights in the Cloud Services and Feedback), 14 (Confidentiality), 15 (Term and Termination), 16.4 (Warranty Disclaimer), 17 (Limitation of Liability), 18 (Dispute Resolution) and 22 (General Provisions).
Article 16.
Warranties and Disclaimer
16.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
16.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Services (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).
16.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Article 16.
16.4. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 16, ALL Cloud Services, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE Cloud Services WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD SERVICES NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
16.5. Analysis results
The analysis results and data of the use of cloud services will be determined by the laboratory, and ATOMWORKS will not bear any responsibility for damages that are not attributable to cloud services.
Article 17.
Limitation of Liability
17.1. Consequential Damages Waiver.
EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
17.2. Liability Cap.
EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
17.3. Excluded Claims.
“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Article 3.3 (Restrictions) or of Article 2 (Combining the Products with Open Source Software) of Third Party Code in ATOMWORKS Products.
17.4. Nature of Claims and Failure of Essential Purpose.
The parties agree that the waivers and limitations specified in this Article 17 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
Article 18.
Dispute Resolution
18.1. Informal Resolution.
In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Article 18.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Article 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
18.2. Governing Law; Jurisdiction.
These Terms will be governed by and construed in accordance with the applicable laws of the Republic of China (Taiwan), without giving effect to the principles of that Country relating to conflicts of laws.
Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, Republic of China (Taiwan） Taipei district court, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in the Republic of China (Taiwan）Taipei district court, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
18.3. Injunctive Relief; Enforcement.
Notwithstanding the provisions of Article 18.1 (Informal Resolution) and 18.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
18.4. Exclusion of UN Convention and UCITA.
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
Article 19.
Export Restrictions
The Cloud Services are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Cloud Services (or any part thereof). You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Cloud Services or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Cloud Services for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
Article 20.
Changes to these Terms
We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Article 22.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
20.1. No-Charge Products.
You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.
20.2. Paid Subscriptions.
Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Services for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
20.3. Our Policies.
We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
Article 21.
Changes to the Cloud Services
You acknowledge that the Cloud Services are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Services, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Services and Additional Services under existing Orders, we can discontinue any Cloud Services, any Additional Services, or any portion or feature of any Cloud Services for any reason at any time without liability to you.
Article 22.
General Provisions
22.1. Notices.
Any notice given under or in relation to this Agreement must be in writing, signed by or on behalf of the party giving it, and addressed
to ATOMWORKS, “Attention Legal Department”, to the applicable address No. 132, Sec. 2, Nanjing E. Rd., Zhongshan Dist., Taipei City 104, Taiwan (R.O.C.), or Company, at the contact information Company provided when purchasing or registering for the Cloud Services. Notices will be considered delivered when received if delivered by hand with receipt, the next business day after sending it by pre-paid, nationally-recognized, overnight air courier with tracking capabilities; or five (5)Business Days after being sent by registered or certified airmail, return receipt required, postage prepaid, to the address mentioned above.
22.2. Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
22.3. Assignment.
You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
22.4. Entire Agreement.
These Terms are the entire agreement between you and us relating to the Cloud Services and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Services or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
22.5. Conflicts.
In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.
22.6. Waivers; Modifications.
No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Article 24 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
22.7. Interpretation.
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
22.8. Independent Contractors.
The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
Article 23.
Definitions.
Certain capitalized terms are defined in this Article 23, and others are defined contextually in these Terms.
“Additional Services” means Technical Account Manager (TAM) services, premier or priority support or other services related to the Cloud Services we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your subscription.
“Administrators” mean the personnel designated by you who administer the Cloud Services to End Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Cloud Services” means our hosted or cloud-based solutions (currently designated as “Cloud” deployments), including any client software we provide as part of the Cloud Services and ATOMWORK Test Platform.
“Documentation” means our standard published documentation for the Cloud Services, currently located here.
“End User” means an individual you or an Affiliate permits or invites to use the Cloud Services. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud Product as your customer are also considered End Users.
“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud Product.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Cloud Services, Support or Additional Services.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“Notification Email Address” means the email address(es) you used to register for a Cloud Product account or otherwise sign up for a Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
“Order” means ATOMWORKS’s applicable online order page(s), flows, in-product screens or other ATOMWORKS-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Cloud Services, (ii) the number of End Users, Subscription Term, domain(s) associated with your use of Cloud Services, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.
“Our Deliverables” means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.
“Our Policies” means our Acceptable Use Policy, guidelines for Reporting Copyright and Trademark Violations, Online Community Platforms Terms of Use, Privacy Policy, Support Policy, Enterprise Support and Services Policy, terms for Third Party Code in ATOMWORKS Products, and (unless specified) any other policies or terms referenced in these Terms.
“Our Technology” means the Cloud Services (including all No-Charge Products), Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“PO” means a purchase order.
“Product-Specific Terms” means additional terms that apply to certain Cloud Services and Additional Services, currently located here.
“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
“Subscription Term” means your permitted subscription period for a Cloud Product, as set forth in the applicable Order.
“Support” means support for the Cloud Services, as further described in the Support Policy and Enterprise Support and Services Policy (to the extent applicable). Your Support level will be specified in the applicable Order.
“Training” means ATOMWORKS-provided training and certification services.
“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to Cloud Services. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Cloud Services.
“Your Materials” means your materials, systems, personnel or other resources.
Suite. 909, 9F., No. 132, Sec. 2, Nanjing E. Rd.,Zhongshan Dist., Taipei City 104, Taiwan (R.O.C.)
(886) 02-2506-4366
Suite. 909, 9F., No. 132, Sec. 2, Nanjing E. Rd.,Zhongshan Dist., Taipei City 104, Taiwan (R.O.C.)
(886) 02-2506-4366
