AUTOMATOS TERMS OF USE
BY CLICKING THE "I ACCEPT" BUTTON OF THE LICENSE AGREEMENT (THIS ?AGREEMENT?), AUTOMATOS, INC. AND CUSTOMER AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS GOVERNING THE USE OF AUTOMATOS'S REMOTE MANAGEMENT SOFTWARE. THE TERM "YOU" REFERS TO: (1) THE COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES AND USERS, OR (2) AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY, AS DEFINED IN THE REGISTRATION INFORMATION PROVIDED TO AUTOMATOS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SOFTWARE.
Automatos will provide Customer with use of the Software as requested by Customer on the Purchase Order, including a downloadable agent (the ?Automatos Server Agent? (?ASA?) or Automatos Desktop Agent (?ADA?)), downloadable plug-ins, and the browser interface accessible at http://my.automatos.com. Customer's registration for, or use of, the Software shall be deemed to be Customer's agreement to abide by this Agreement including any materials available on the Automatos website incorporated by reference herein, including but not limited to the Purchase Order executed by the Customer and other legal statements.
To generate a Purchase Order and activate the Software, please contact sales@automatos.com.
Customer will pay all fees or charges to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total Server or Desktop licenses requested on the Customer?s Purchase Order times the Server or Desktop license fee currently in effect. Payments may be made annually, quarterly or monthly, consistent with the Initial Term, at Customer's election and as described on the Purchase Order. License fees are nonrefundable whether or not User licenses are actively used. Customer must provide Automatos with approved purchase order information as a condition to signing up and using the Software. An authorized License Administrator may add licenses by executing an additional written Purchase Order.
Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term) (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a month will be charged in full for that month. Automatos reserves the right to change the fees, applicable charges and usage policies and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail.
Automatos charges and collects in advance for use of the Software. Automatos will automatically issue an invoice to Customer (a) every month for monthly licenses, (b) every quarter, for quarterly licenses; or (c) each year on the subsequent anniversary for annual licenses. The renewal charge will be equal to the then-current number of total User licenses times the then-current license fee in effect at the time of renewal. Fees for other services will be charged on an as-quoted basis. Automatos's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Automatos's income.
Customer agrees to provide Automatos with complete and accurate billing and contact information. This information includes Customer's legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, Automatos reserves the right to terminate Customer's access to the Service in addition to any other legal remedies.
Invoices will be generated at the start of a license or billing period and approximately one month in advance of the start of any renewal or subsequent billing period and shall be due within 30 days. Customer's account will be considered delinquent (in arrears) if payment in full is not received by the license or billing period start date.
Unless Automatos in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); (ii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing chemes at the discretion of Automatos ("Non-U.S. Customers").
If Customer believes that the bill is incorrect, Customer must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Automatos herein, Automatos reserves the right to suspend or terminate this Agreement and Customer's access to the Software if Customer's account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for User licenses during any period of suspension. If Customer or Automatos initiate termination of this Agreement, Customer will be obligated to pay the balance due on Customer's account computed in accordance with the Charges and Payment of Fees section above. Customer agrees that Automatos may charge such unpaid fees to Customer's credit card or otherwise bill Customer for such unpaid fees.
In the event Customer's account becomes thirty (30) days or more overdue, in addition to and not in lieu of any of its other rights or remedies under this Agreement, Automatos reserves the right to suspend the service provided to Customer. Automatos also reserves the right to impose a separate reconnection fee should Customer thereafter again request access to the service. Customer agrees and acknowledges that Automatos has no obligation to retain the Customer Data if the account is more than 30 days overdue, and such Customer Data will be irretrievably deleted if the account is unpaid after 30 days.
This Agreement commences on the Effective Date. The Initial Term of this Agreement will be one month or one year as determined by Customer's election during the online subscription process, commencing on the date Customer agrees to pay for the Software by completing the online subscription form. This Agreement will automatically renew, for a term equal in duration to the Initial Term, upon the expiration of the Initial Term or any renewal term. Either party may terminate this Agreement or reduce the number of licenses, effective upon the expiration of the then current term, by notifying the other party in writing at least five (5) business days prior to the end of the then current term. In the case of free trials, notifications and emails provided through or sent by the Services indicating the remaining number of days in the free trial shall constitute notice of termination. You will be billed for the period from the date you initiate the termination/reduction up to and including the date one month following the date you initiated the termination/reduction at the service level prior to such termination/reduction. Upon termination/reduction, you will be granted a refund of any prepaid charges applicable to the period starting one month after our receipt of your written notice of the termination/reduction.
As of the Termination, Automatos will (i) block access to Software; (ii) allow enrolled machines to continue sending data to our analyzer for 30 (thirty) days, after which time our analyzer will refuse any data from Users? computers; (iii) store User performance data for 30 (thirty) days (this data cannot be exported and is stored to allow user to eventually continue service for a previously enrolled machine), after which time it will be irretrievably deleted; (iv) store user asset data for 30 (thirty) days, during which time user may request from Automatos (by email to support@automatos.com) the existing asset data in a supported file format, irretrievably deleting such data after the 30-day period; (v) after the 30-day period has expired, irretrievably delete user account(s).
Any breach of Customer's payment obligations, Use Guidelines, unauthorized use of the Automatos Technology or Software will be deemed a material breach of this Agreement. Automatos, in its sole discretion, may terminate Customer's password, account or use of the Software if Customer breaches or otherwise fail to comply with this Agreement. In addition, Automatos may terminate a free account if Customer does not first log on within 30 days after registration or if 90 days have passed since Customer last logged on. Customer agrees and acknowledges that Automatos has no obligation to retain the Customer Data, and will delete such Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Upon submission by Customer of a Purchase Order together with payment in full of all amounts due at that time, Automatos hereby grants Customer a nonexclusive, non-transferable, internal-use-only right and license, without right of sublicense, during the applicable term, to install, access and use the Software in object code format on such number of Customer?s servers and/or desktop computers as is specified in the applicable Order Form solely for the purpose of permitting Automatos to provide the remote-management services to Customer with respect to such servers and/or desktop computers.
Customer is responsible for any and all activities that occur under Customer's user accounts. Customer shall: (i) notify Automatos immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Automatos immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or its Users; (iii) assure that use of the Service shall at all times comply with all applicable local, state, federal, and international laws, regulations, and conventions, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data; (iv) assure that use of the Service by Customer's Users shall at all times conform to the Use Guidelines; and (v) not impersonate another Automatos user or provide false identity information to gain access to or use the Service.
Customer must provide information to Automatos regarding the servers and desktops that are the subjects of Automatos? remote management services. To replace one machine that is receiving such services with another machine, Customer must provide the applicable information about the new machine on the Web Site and indicate which machine it is replacing. As a condition of use of the Software and receipt of the services, Customer warrants to Automatos that Customer and its personnel will not use the Software or the Services for any purpose that is unlawful or prohibited by this Agreement.
Customer may not (and may not permit any third party to): (i) permit individuals other than authorized personnel to use the Software or the services except under the terms listed above; (ii) modify, translate, disassemble, reverse engineer, decompile, or create derivative works based upon the Software (except and only to the extent that this restriction is expressly prohibited by law); (iii) resell, rent, lease, sublicense, or otherwise transfer the Software or any rights to receive the services; or (iv) remove any proprietary notices or labels on the Software.
Customer agrees that it shall only use the Software and services in a manner that complies with all applicable laws in the jurisdictions in which its personnel use the Software and services, including, but not limited to, applicable restrictions concerning copyrights, trademarks, and other intellectual property rights.
Without limiting Automatos? other rights and remedies under this Agreement, at law or in equity, should Customer breach any of its obligations in this Section 10 or provide information to Automatos that is materially untrue or inaccurate, Automatos shall have the right to suspend the Services upon email notification to Customer, and if Customer fails to cure such breach within seven (7) days after such e-mail notification, Automatos may terminate this Agreement by email notification to Customer.
Automatos will provide, free of charge to Customer, a phone number for Customer to call to obtain customer support. Such customer support will generally be available during business days, from 07:00 AM to 05:00 PM (Pacific Standard Time). Customer support may also be requested by e-mailing support@automatos.com or phones (+ 55 24 22050432 / + 55 24 22250267 / + 55 21 4063 9776). Automatos only provides support directly related to the use of its tools (that is, related to installation of the Software and use of the Web Site). Automatos does not provide customer support related to the Customer?s equipment or computer systems or to any other software Customer may be using. Automatos also does not assist customers in interpreting the reports generated by Automatos? remote management services. Additional customer support may be purchased by Customer through Automatos? strategic partners and Customer may obtain a list of strategic partners from Automatos.
As between Customer and its personnel who have access to the Software and the Services (each a ?User?), on the one hand, and Automatos, on the other, all of the Software is owned by Automatos and is protected by copyright laws and international treaty provisions, and other than the limited license to the Software granted in Section 8 hereof, all intellectual property rights associated with the Software are retained by Automatos. Customer may install the Software that will enable it to receive the services via the Web Site only for its internal use, provided that it reproduces all notices in the Software. This Agreement does not grant Customer any rights in the trademarks, service marks, logo, or trade names of Automatos, all of which remain the exclusive property of Automatos, and Customer may not remove them from the Software.
Customer may not use the Software or Services in any way to provide to any third party any commercial services or software applications. Content files which are installed or copied for purposes of using the Software and Services, and which are protected by the copyright laws or related laws of any jurisdiction, are for Customer?s own personal use only and may not be distributed to third parties.
Subject to Section 14 hereof, Automatos agrees to indemnify Customer from and against all liability Customer incurs as a result of the infringement of any third party intellectual property rights by the Software. Notwithstanding the foregoing sentence, Automatos shall have no liability hereunder unless Customer gives Automatos prompt written notice upon discovery of each claim or other circumstance likely to give rise to a request for indemnification promptly after Customer becomes aware of the same. No compromise or settlement of any such claim shall be made without the prior consent in writing of Automatos. Customer hereby waives any claims against Automatos founded upon the indemnification provisions contained in this Agreement to the extent any such claim is covered by, and losses or other proceeds are paid to and received by Customer from, any insurance.
In the event that any claim is asserted alleging that the Software infringes the intellectual property rights of any third party, or in the event that Automatos may otherwise reasonably determine that its Software may infringe on any third party?s intellectual property rights, Automatos shall attempt to (a) obtain a license so the Customer may continue to use the Software, (b) modify the Software so that it is non-infringing, or (c) procure for the Customer a replacement product. If, after reasonable efforts, Automatos is not able to accomplish any of the foregoing, Automatos may terminate this Agreement by notice to Customer without further liability in connection with such termination.
Notwithstanding anything in this Agreement, in no event shall Automatos have any liability for or in connection with any claims to the extent that such claims arise under any of the following circumstances: (a) the Software, or a component thereof, was altered or modified by Customer or any third party or used in combination with any component, apparatus or software not furnished, supported or authorized by Automatos and such alteration, modification or combination resulted in or is the basis for the third party claim; or (b) Customer sold or sublicensedthe Software or the services, or component thereof in contravention of this Agreement.
EXCEPT FOR A VIOLATION OR BREACH BY CUSTOMER OF THE THIRD PARAGRAPH OF SECTION 10 HEREOF OR OF SECTION 12 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING WITHOUT LIMITATION LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO CUSTOMER?S USE OR RECEIPT OF OR INABILITY TO USE OR RECEIVE THE SOFTWARE OR THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE, THE SERVICES OR THE WEB SITE, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT UNDER SECTION 13 HEREOF, AUTOMATOS WILL NOT BE LIABLE FOR LOSSES OR DAMAGES OF CUSTOMER, ANY USER OR ANY THIRD PARTIES IN EXCESS OF THE TOTAL AMOUNT OF THE FEES PAID BY CUSTOMER DURING THE 12-MONTH PERIOD PRIOR TO THE INSTITUTION OF THE CLAIM.
Customer is solely responsible for any and all activities that occur under its account and for ensuring that the users exit or log out of the account at the end of each session of use. Customer shall notify Automatos immediately of any unauthorized use of its password or account or any other breaches of security that are known or suspected by Customer. Customer shall also use all reasonable commercial efforts to stop any copying or distribution of content that is known or suspected by Customer. Automatos shall not be responsible for any unauthorized access to, or alteration of, Customer?s transmissions or data, any material, information or data sent or received, regardless of whether the data is actually received by Automatos, or any transactions entered into through the Software or Services. Customer agrees to defend, indemnify and hold harmless Automatos and its affiliates, and their respective directors, officers, employees, and agents, from and against any claim, demand, loss, or damage (including without limitation reasonable attorneys? fees) asserted by any third party due to or arising out of Customer?s use of the Software or Services or the conduct of its Users on the Web Site.
DISCLAIMER OF WARRANTIES. THE SOFTWARE AND SERVICES ARE PROVIDED ?AS IS? WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUTOMATOS FURTHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
Automatos's privacy and security policies may be viewed at http://www.automatos.com/en. Automatos reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. In addition to its privacy and security policies, and subject to Section 14, the following applies:
A. Description of Software and Collected Data.
The Services are based on two main pillars ? an agent, which collects data, and the backend, responsible for data storage and analysis. The agent encrypts the collected data prior to sending it to the backend using strong cryptography.
The agent collects data solely on performance counters and information on installed software for asset management purposes. Files used by applications and user files are in no way tampered with by the agent.
The backend runs on a server which is located in a world-class datacenter. This datacenter follows above-standard norms in regards to physical and logical security, having a client roster which includes other multinational companies.
B. Treatment of Information Stored at the Backend.
All information stored at the backend is considered as confidential information. Automatos understands that such information is proprietary and confidential to the Client, and is of significant importance and value to the Client and their business. This means that, for the period of time such information is stored on the backend, Automatos shall not:
(i) publish or disclose any Confidential Information so stored to anyone other than to only those employees who have a need to know such Confidential Information in order to provide the Services (i.e. tech support, administrative staff, etc.). Those employees, in turn, have all executed confidentiality and proprietary information agreements with Automatos or one of its Affiliates, and are bound to these same obligations; or,
(ii) directly or indirectly use any Confidential Information for the benefit of any third party.
C. Exceptions to the Previous Item.
Automatos shall only disclose confidential information to third-parties if ordered by a court of competent jurisdiction to disclose such information, pursuant to an order from which no further right of appeal exists or cannot be stayed. In this case, Automatos shall give the Client, prior to disclosing said information, prompt prior notice of such order and of any request therefor and a reasonable opportunity, at the Client?s expense and by their own means, to object to or appeal from, any such order or request therefor and/or to obtain a protective order with respect thereto.
The linked sites that are accessible through the Software or the Web Site are not under the control of Automatos and Automatos is not responsible for the contents of any linked site or for any form of transmission received from any such linked site.
Automatos reserves the right to change the terms and conditions of this Agreement or its policies relating to the Software and/or services at any time and shall notify Customer by posting an updated version of these terms and conditions on the Web Site. Customer is responsible for regularly reviewing this Agreement. Continued use of the Software and services after any such changes are posted shall constitute Customer?s consent to such changes.
An executed paper license supersedes and replaces this version.
This Agreement covers the use of the Automatos Server and Desktop Management Suites and their agents and plugins. Other Automatos software have their own license agreements, and such agreements may not be construed as an amendment hereto.
This Agreement is the entire agreement between Customer and Automatos relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. Other than modifications by Automatos pursuant to Section 17, no modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of California and controlling United States federal law, without regard to conflicts of law principles. Any action arising out of or relating in any way to any of the provisions of this Agreement shall be brought and prosecuted in the state or federal courts of New York and the parties consent to the jurisdiction of such courts and to service of process by registered mail, return receipt requested, or by any other manner provided by law.
Customer agrees that it will comply with the United States Export Administration Act and Export Administration Regulations, and any similar applicable domestic and foreign, federal, state and local laws, rules, regulations and treaties of the United States or any country or jurisdiction applicable, that prohibit or regulate, or impose licensing, permitting or reporting requirements on, the export or re-export of any goods or technology.
This Agreement may not be assigned by Customer without the prior written approval of Automatos but may be assigned by Automatos to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.