Terms of Service

Your Agreement with Atym

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BY CLICKING “I ACCEPT,” DOWNLOADING ATYM SOFTWARE, OR BY ANY OTHER MEANS ACCESSING AND USING ATYM SOFTWARE SERVICES AND/OR SITES, YOU ARE AGREEING TO ALL OF THESE TERMS, INCLUDING THOSE INCORPORATED HEREIN (COOKIE AND TRACKING, ACCEPTABLE USE, AND PRIVACY POLICIES). IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT CLICK “I ACCEPT,” DOWNLOAD, OR ACCESS/USE THE SOFTWARE, SERVICES OR SITES.

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1. General Terms

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1.1  We are Atym, Inc. (“Atym”, “our”, “us” or “we”).  "Atym" means Atym, Inc., a Delaware corporation with its principal place of business at One Sansome St in San Francisco, California, and its subsidiaries and Affiliates (as defined below) involved in providing Atym Products and Services.  Your access to, and use of, all products and services sold or otherwise provided to you as a part of Atym’s solutions (collectively, the “Products and Services,” respectively) and the Sites (as defined below) is subject to the terms and conditions set forth in these Atym Terms of Service (these “Terms”), which include, by this reference as if fully stated herein, the Privacy Policy (which includes policies on Cookies and Tracking) and Acceptable Use Policy, as each may be updated or amended from time to time (collectively, the “Policies”). 

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As part of these terms, and as a condition of your continued use of the Products and Services, you agree to access the above links or through the Atym Sites to review and follow the Policies as part of this agreement.  The Atym “Products and Services" include, without limitation, the Atym Hub platform, the Atym CLI and API, the Atym container runtime and any other software or services offered by Atym in connection to any of those. "Affiliate" means any entity which may now or in the future directly or indirectly control Atym, or that Atym may control, or any entity with which Atym has partnered to provide the Products and Services. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

 

1.2  In order to use the Atym Products and Services, you must first agree to these Terms. You can agree to the Terms by using the Atym Products and Services. You understand and agree that Atym will treat your use of the Atym Products and Services as acceptance of the Terms from that point onwards.

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1.3  Atym provides access to the Product and Services through both: (i) websites, including, without limitation, those located at Atym.io and related domains (each, a “Site,” and all, collectively, the “Sites”); and (ii) containerized software that may be packaged and deployed to devices (each, a “Container” and collectively the “ Containers”). Certain additional paid services or features that Atym may offer (such as premium subscription Services) may have additional or different terms, but in the absence of the same will be governed by these Terms alone. Atym offers only the ability to access and/or use the Services and the Sites and create, deploy and manage Containers, and never sells or otherwise transfers ownership to any of them.

 

1.4  You may not use, and you agree not to use the Atym Products and Services if you are a person barred from receiving the Atym Products and Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Atym Products and Services.

 

1.5  You agree that your purchase of Atym Products and Services, either directly or indirectly through any means (such as purchase of a device that uses Atym Produces and Services), is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Atym or any of its Affiliates regarding future functionality or features.

 

1.6  Atym reserves the right, in its sole discretion, to modify, amend or supplement any term or condition of these Terms at any time, with or without notice, by posting such modifications, amendments and/or supplements here or on the Atym Site. If you continue to use any of the Products and Services after any such modifications, amendments or supplements are made, you are then accepting and agreeing to be bound by them.  The same applies to modifications, amendments, or supplements to any Policies.

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2. Your Account and Use of the Atym Products and Services

 

2.1  You must provide accurate and complete registration information any time you register to use the Atym Products and Services. You are responsible for the security of your passwords and for any use of your account.  If you become aware of any unauthorized use of your password or of your account, you agree to notify Atym immediately.

 

2.2  Your use of the Atym Products and Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

 

2.3  You represent and warrant that: (i) if you are an individual, you are at least 18 years old and otherwise legally competent in all respects to enter into and be bound by these Terms; or (ii) if you are an entity, (A) you are a legal entity in good standing, (B) you possess all legal authority and power to enter into and be bound by these Terms, (C) the natural person who clicked “I Accept” to accept these terms had full corporate authority to do so, and you hereby bind your entity and all natural persons employed or engaged by your entity that may use the Products and Services and Sites.

 

2.4  You agree not to (a) access (or attempt to access) the administrative interface of the Atym Products and Services by any means other than through the interface that is provided by Atym in connection with the Atym Products and Services, unless you have been specifically allowed to do so in a separate written agreement with Atym, or (b) engage in any activity that interferes with or disrupts the Atym Products and Services (or the servers and networks which are connected to the Atym Products and Services).

 

2.5  Your account has usage limits, as further explained here (or additional documentation that Atym may provide). The Atym Products and Services do not permit you to exceed the usage limits. Atym reserves the right to enforce usage limits in its sole discretion, which may result in Atym serving a "quota exceeded" page to you or users to whom you serve web pages via the Atym Products and Services ("End Users"). Repeatedly exceeding the usage limits may lead to termination of your account.

 

2.6  You may use the Atym Products and Services only to integrate, deploy and manage Containers on your edge devices. You may not access the Atym Products and Services for any other purpose, and you may not use any Products and Services for the purpose of bringing an intellectual property infringement claim against Atym or for the purpose of creating a product or service competitive with the Atym Products and Services.  Any action or attempt to reverse engineer or otherwise use or usurp for a purpose other than how the Products and Services are intended to be used, or assistance with another in doing the same, will automatically terminate any license and right to use the Products and Services, and the person or entity doing the above will be subject to liability and damages, which will not be reduced or limited under Sections 12 and 13 (notwithstanding any provisions therein to the contrary) that have no application to violations of this paragraph.

 

2.7 You shall ensure that the terms and conditions materially consistent with the obligations set forth in this Agreement are included in your end-user license agreements, terms of service, or other agreements with your customers. You agree that your customers’ use of the Products and Services shall be governed by such agreements, which shall expressly incorporate all limitations, restrictions, and obligations required under this Agreement.

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3. Product and Service Policies and Privacy

 

3.1  You agree to comply with the Atym Acceptable Use Policy (the "Acceptable Use Policy") which is incorporated herein by this reference and which may be updated from time to time.

 

3.2  The Atym Products and Services shall be subject to Atym’s Privacy Policy. You agree to the use of your data in accordance with such Privacy Policy which may be updated from time to time.

 

3.3  Atym shall use commercially reasonable efforts to make the Atym Products and Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Atym will make reasonable efforts to provide you notice through either the Site or via the Atym Products and Services), or (b) any unavailability caused by circumstances beyond Atym's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Atym employees), Internet service provider failures or delays, or denial of service attacks.

 

3.4  You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with usernames, passwords, or other login information or personal details, you must make the users aware that the information will be available to your application and to Atym.

 

3.5 You will not use or permit others to use the Products and Services in connection with any of the following unauthorized applications: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; military or space equipment requiring radiation hardened components; enhanced 911 or E911 emergency calling system; commission of intentional physical harm to persons or animals (whether or not fatal); non-consensual surveillance; facilitation of incarceration or criminal investigation; transport of weapons of any type; facilitation of sales or distribution of DEA Schedule 1 substances or substances known to cause harm without known benefits; or uses that are criminal or otherwise unlawful.

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4. Fees for Use of the Atym Products and Services

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4.1  You will pay all fees specified in the documentation or agreement under which you gained access to the Products and Services, and/or any Order Forms hereunder. "Order Forms" means the documents for placing orders hereunder that are entered into between you and Atym (or that involve any Affiliate) from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the Atym Products and Services purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

 

4.2  Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form or other documentation or agreement that may be applicable. Unless otherwise stated therein, fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Atym and notifying Atym of any changes to such information.

 

4.3  If any amounts invoiced hereunder are not received by the due date, then at Atym's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Atym may condition future subscription renewals and Order Forms on payment terms shorter than those above.

 

4.4  If any charge owed by you is 30 days or more overdue, Atym and/or the applicable Atym Affiliate may, without limiting its other rights and remedies, suspend Products and Services until such amounts are paid in full, but in such event Atym will make reasonable efforts to provide you 10 or more days' prior notice that your account is overdue.

 

4.5  Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If Atym has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Atym is solely responsible for taxes assessable against it based on its income, property and employees.

 

4.6  If making payment by credit card, a valid credit card (Visa, MasterCard, or any other issuer accepted by Atym) ("Payment Provider") must be provided. Your Payment Provider agreement governs use of the designated credit card account, and You must refer to that agreement and not the terms of this Agreement to determine Your rights and responsibilities with respect to such payment. By providing Atym with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to Atym hereunder and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Site or by e-mail delivery to you.

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5. Content on the Atym Products and Services and Take Down Obligations

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5.1  You understand that all information (such as data, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Atym Products and Services are the sole responsibility of the person or entity from which such content originated. All such information is referred to below as the "Content."  

 

5.2  Atym reserves the right (but shall have no obligation) to remove any or all Content from the Atym Products and Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take-down request from Atym. If you elect not to comply with a request from Atym to take down certain Content, Atym reserves the right to directly take down such Content or to disable Applications or your account.[JS1] 

 

5.3  In the event that you become aware of any violation of the Acceptable Use Policy by one of your end user customers, you shall immediately terminate such end user's account. Atym reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.

 

5.4  You agree that you are solely responsible for (and that Atym has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Atym Products and Services and for the consequences of your actions (including any loss or damage which Atym may suffer) by doing so.

 

5.5  You agree that Atym has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Atym Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.

 

6. Proprietary Rights

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6.1  You acknowledge and agree that Atym (or Atym 's licensors) own all legal right, title and interest in and to the Atym Products and Services, including any intellectual property rights which subsist in the Atym Products and Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

 

6.2  Except as provided in Section 8, Atym acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Atym Products and Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Atym, you agree that you are responsible for protecting and enforcing those rights and that Atym has no obligation to do so on your behalf.

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7. License from Atym and Restrictions

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7.1  Atym gives you a revocable, personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Atym as part of the Atym Products and Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Atym Products and Services as provided by Atym, in the manner permitted by the Terms.  Your license will be deemed automatically revoked as of the date you violate any of these Terms or the Policies, and your continued use of the Atym Products and Services thereafter will be without authorization unless Atym waives the violation, which may only be done in writing.

 

7.2  You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Atym Products and Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Atym, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Atym Products and Services or any applications running on the Atym Products and Services.

 

7.3  Open source software licenses for components of the Atym Products and Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Atym for the use of the components of the Atym Products and Services released under an open source license.

 

7.4  Atym hereby grants you a revocable, limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Atym trademarks and/or logos as provided here ("Marks") for the sole purpose of promoting or advertising that you use the Atym Products and Services and solely in accordance with the then current Trademark Usage Guidelines for Atym, which may be found at Site (or such other URL Atym may provide from time to time). You agree that all goodwill generated through your use of the Atym Marks shall inure to the benefit of Atym.

 

7.5  Use of the full functionality of the Products and Services may require you to utilize one or more third-party products or services, including, without limitation, open-source software or third-party software that is licensed separately under the terms of various separate license agreements (“Other Software”). You decide which third-party products or services, if any, you want to utilize. Other Software is licensed to you under the terms of the applicable third-party license agreements (the “Other Software Terms”). Intellectual property rights and to the Other Software are held by copyright holders indicated in the Other Software Terms. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable Other Software Terms for the Other Software. Your explicit consent and authorization may be required for any third-party product or service, including, without limitation, Other Software.  Once your consent is given for a particular third-party product and service, including, without limitation, Other Software, Atym may exchange information and data regarding you and your use of the Services to enable the interface you have authorized to work together with the Services. Once this information is shared with a specific third-party product or service, its use will be governed by the third party’s privacy policy and terms of service.

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8. License from You

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8.1  Atym claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Atym Products and Services you give Atym a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Atym to provide you with the Atym Products and Services. Furthermore, by creating an Application through use of the Atym Products and Services, you give Atym a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Atym to provide you with the Atym Products and Services.

 

8.2  By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Atym Products and Services functionality or features for the sole purpose of collaborating on development of the Application(s).

 

8.3  You may choose to or we may invite you to submit comments or ideas about the Atym Products and Services, including without limitation about how to improve the Atym Products and Services or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Atym under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.

 

8.4  You agree that Atym, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Atym Products and Services.

 

9. Add-ons

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9.1  Atym may make available through the Atym Products and Services additional features, functionality, and services offered by its third-party partners ("Add-ons"). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you subscribe to or purchase through the Atym Products and Services, these Terms constitute a separate binding agreement between you and the third-party licensor of that Add-on ("the Add-on Provider") only and Atym is not a party to such agreement. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein and the privacy and security of any of your data processed by the Add-on, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; Atym is acting as agent for the Add-on Provider in providing each such Add-on to you; Atym is not a party to the license between you and the Add-on Provider with respect to that Add-on; and Atym is not responsible for that Add-on, the content therein, the privacy and security of any of your data processed by the Add-on, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that Atym is a third-party beneficiary of the agreement between you and the Add-on Provider for each Add-on, and that Atym will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof.

 

9.2  By subscribing to or purchasing an Add-on, you grant Atym permission to share your Application, Content, and user information and data with the Add-on Provider as necessary in order to provide you the Add-on.

 

9.3  The license granted to you to use any Add-on is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others.

 

10. Recommendations

Atym may, and you grant us permission to, make recommendations via the Atym Products and Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Atym Products and Services.

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11. Modification and Termination of the Atym Products and Services, Survival of Certain Terms and Policies

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11.1  Atym is constantly innovating to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Atym Products and Services which Atym provides may change from time to time without prior notice to you. Changes to the form and nature of the Atym Products and Services will be effective with respect to all versions of the Atym Products and Services; examples of changes to the form and nature of the Atym Products and Services include without limitation security patches, added functionality and other enhancements.

 

11.2  The Terms, to the extent they obligate Atym, continue in full force and effect until the Atym Products and Services ordered by you, pursuant to Order Forms or other agreement, have expired or have terminated, at which time Atym ceases to be bound, and the license hereunder terminates.  The Terms, other than those that, by their nature, only apply during your use of the Products and Services, such as your obligation to pay any fees which terminates when your Order Forms or agreement have expired or terminated, shall continue to be binding upon you and survive termination of your license or use.  In particular, and without limitation, your agreement under Sections 2.6 (to not use information or material gained from Atym for infringement or competition against Atym), 6.1 (Atym ownership of its Products and Services), this section 11, and 12 through 14 (disclaimer of warranties, limitation on liability, and indemnity) all survive termination or expiration of your use and license hereunder regardless of the reason for termination.

 

11.3  You are solely responsible for exporting your Content and Application(s) from the Atym Products and Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).

 

12. Warranties, Exclusive Remedies and Disclaimers

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12.1  Atym warrants that (i) it has validly entered into these Terms and has the legal power to do so, and (ii) the functionality of the Atym Products and Services will not be materially decreased during a subscription term. For any breach of a warranty above, your exclusive remedy shall be to terminate your subscription to the Atym Products and Services, and Atym will not have any liability.

 

12.2  You warrant that You have validly entered into this Agreement and have the legal power to do so.

 

12.3  NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT EITHER PARTY'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

 

12.4  ATYM, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE ATYM PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ATYM, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE ATYM THE ATYM PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE ATYM PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE ATYM PRODUCTS AND SERVICES WILL BE ACCURATE.

 

12.5 Atym does not warrant the compatibility of any of its Products and Services with software, hardware, or other products or services from others.  In particular, Atym does not warrant that the Containers will be compatible with all devices. Other applications may interact with the Containers in unpredictable ways, and Atym does not warrant against malfunctions or errors caused by such interactions. Atym grants to you a limited, revocable, non-exclusive, non-transferable license to use an object code copy of the Containers for one registered account on Edge devices products owned or leased solely by you for your use in connection with the Services, but the same will be subject to these Terms, including the Policies.

 

13. Limitation of Liability

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13.1  SUBJECT TO SECTION 12.3, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT ATTRIBUTABLE TO THE ATYM PRODUCTS AND SERVICES PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT ATTRIBUTABLE TO THE ATYM PRODUCTS AND SERVICES PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE "FEES FOR USE OF THE ATYM PRODUCTS AND SERVICES" SECTION ABOVE.

 

13.2  SUBJECT TO SECTION 12.3 ABOVE, NEITHER PARTY (NOR A PARTY'S SUBSIDIARIES AND AFFILIATES) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY THE OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

 

13.3  THE LIMITATIONS ON LIABILITY IN PARAGRAPH 13.2 ABOVE SHALL APPLY WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

 

14. Indemnification

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14.1  Notwithstanding Section 13 above, you shall defend and hold Atym harmless against any claim, demand, suit or proceeding made or brought against Atym by a third party arising from or in any way related to (a) your breach of the Terms, (b) your use of the Atym Products and Services, (c) your violation of applicable laws, rules or regulations in connection with the Atym Products and Services, or (d) your Content or your Application ("Claim Against Atym"), and shall indemnify Atym for any damages, attorney fees and costs finally awarded against Atym as a result of, and for amounts paid by Atym under a court-approved settlement of a Claim Against Atym, and Atym will (a) promptly give you written notice of the Claim Against Atym, (b) give you sole control of the defense and settlement of the Claim Against Atym (provided that you may not settle or defend any Claim Against Atym unless it unconditionally releases Atym of all liability), and (c) provide to you all reasonable assistance, at your expense.

 

14.2  Atym shall defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of the Atym Products and Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give Atym written notice of the Claim Against You, (b) give Atym sole control of the defense and settlement of the Claim Against You (provided that Atym may not settle or defend any Claim Against You unless it unconditionally releases you of all liability), and (c) provide to Atym all reasonable assistance, at Atym's expense. In the event of a Claim Against You, or if Atym reasonably believes the Atym Products and Services may infringe or misappropriate, Atym may in its discretion and at no cost to you (i) modify the Atym Products and Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the Atym Products and Services in accordance with this Agreement, or (iii) terminate your subscription for such Atym Products and Services upon 30 days' written notice and refund you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.

 

15. Copyright Policy

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You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is Atym 's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.

 

16. Other Content

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16.1  The Atym Products and Services may include hyperlinks to other web sites or content or resources or email content. Atym may have no control over any web sites or resources which are provided by companies or persons other than Atym.  You accept such information as is and at your own risk.

 

16.2  You acknowledge and agree that Atym is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

 

16.3  You acknowledge and agree that Atym is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

 

17. Non-GA Products and Services

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From time to time, Atym may invite you to try, at no charge, Atym products or services that are not generally available to Atym customers ("Non-GA Products and Services"). You may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as alpha, beta, preview, pilot, early access, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA Services are not considered "Atym Products and Services" hereunder and are provided "AS IS" with no express or implied warranty. Atym may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.

 

18. General Legal Terms

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18.1  The Terms, including all Order Forms and the Policies, constitute the entire legal agreement between you and Atym and govern your use of the Atym Products and Services (but excluding any services which Atym may provide to you under a separate written agreement), and completely replace any prior agreements between you and Atym in relation to the Atym Products and Services. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of the Terms and any Order Form, the terms of such Order Form shall prevail.

 

18.2  There are no third-party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

 

18.3  If Atym provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

 

18.4  You agree that Atym may provide you with notices by email, regular mail, or postings on the Atym Products and Services. By providing Atym your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.

 

18.5  You agree that if Atym does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Atym has the benefit of under any applicable law), this will not be taken to be a formal waiver of Atym 's rights and that those rights or remedies will still be available to Atym.

 

18.6  The Terms, and your relationship with Atym under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Atym agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms.

 

18.7  Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of your use of the Atym Products and Services upon written notice to the assigning party.

 

18.8 California Consumer Notice: Under California Civil Code Section 1789.3, California users may be entitled to the following consumer rights notice:

California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

 

18.9 It is the intent of the parties to be bound by all of these Terms, including the referenced Policies, but if any term or policy is or becomes illegal or otherwise unenforceable, you consent to and request that such term or policy be interpreted and applied, as permitted by law, as closely as possible to the original language herein or in the Policies.  If any term or policy cannot be so interpreted or applied without its being illegal or unenforceable, it shall be severed from these Terms and Policies, and the remainder will be enforced to the fullest extent permitted by law. 

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