Last Updated: July 10th, 2017
Welcome to Atatus (“Atatus”, “we”, “our” or “us”). These Terms of Service (the “Terms of Service” and/or “Terms”) contain the legal terms and conditions that govern your use of and access to www.atatus.com and any related sites (the “Site”) and our Agents, Software, Documentation, Forums and Content (all as defined below and collectively, the “Services”). Please review these Terms of Service carefully before using the Services.
Atatus may update these Terms from time to time. The most current version of these Terms will be posted on Site. We may provide that notice in a variety of ways, including, without limitation, sending you an email, posting a notice on the Site, or posting the revised Terms on the Site and revising the date at the top of these Terms. Any changes to the Terms will be effective immediately for new users of the Atatus Sites and Services and, for all other users, any changes to the Terms will be effective thirty (30) days after posting notice of such changes on the Site, or within or through the affected Service on the Site, as applicable.
Atatus may choose to modify or discontinue the Services, including any portions of the Services as we update our offerings and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you.
Excluding scheduled maintenance windows, Atatus will use commercially reasonable efforts to maintain 99.8% availability of the hosted portion of the Service for each calendar month during the term of this Agreement. The Service will be deemed “available” so long as Authorized Users are able to login to the Service interface and access monitoring data. Excluding planned maintenance periods, in the event the Service availability drops below 99.8% for two consecutive months, Customer may terminate the Service in the calendar month following such two-month period upon written notice to Atatus. To assess uptime, Customer may, if under a Paying Plan, request the Service availability for a prior month by filing a support ticket through the Site.
Certain data will be necessary for using the services. These data, that may be collected through our software agents, will be your Data. You retain all the rights and ownership of your Data and Atatus will not claim any ownership rights to your Data. You represent and warrant that you have the necessary rights and licenses required to provide your Data to Atatus in connection with your use of the Services and that by providing your Data in this manner, you will not violate any intellectual property rights of third parties, confidential relationships, contractual obligations or laws. Without limiting the generality of the foregoing, you shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Services by Atatus and/or you. You shall be solely responsible for ensuring that any processing of Data by Atatus and/or you via the Services does not violate any applicable laws.
Subject only to the limited rights expressly granted in this Agreement, as between Customer and Atatus, Customer shall retain all right, title and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and Atatus assumes no liability, for the Customer Data that Authorized Users or other third parties post, send or otherwise make available over or through the Service.
As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by Atatus in connection with the performance of the Service or the Support, or made available by Atatus to Customer, any Authorized User or any third party in connection with the Service or the Support. Without limiting the foregoing, Technology includes the products, services and technology makes available through the Site, the Agents, the Service interface and any Atatus branded or co-branded websites (including sub-domains, widgets and mobile versions).
The Service and Technology constitute or otherwise involve valuable intellectual property rights of Atatus and all right, title and interest in and to the foregoing shall, as between the parties, be owned by Atatus. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections 6 and 9 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. Atatus reserves all rights to the Service and Technology not otherwise expressly granted herein.
Customer may provide Atatus with feedback, suggestions, and ideas, if Customer chooses, about the Application Services (“Feedback”). Customer agrees that Atatus may, in its sole discretion, use the Feedback Customer provides in any way, including in future enhancements and modifications to the Application Services. Customer hereby grants to Atatus and its assigns a worldwide, fully transferable, sublicensable, fully paid-up, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party.
The Application Services may display, or contain links to, third party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by other users or other third parties on the Application Services, or which is accessible through or may be located using the Application Services (collectively, “Third Party Content”) are those of the respective authors or producers and not of Atatus or its shareholders, directors, officers, employees, agents, or representatives.
Atatus does not control Third Party Content and does not guarantee the accuracy, integrity or quality of such Third Party Content. Atatus is not responsible for the performance of, does not endorse, and is not responsible or liable for, any Third Party Content or any information or materials advertised in any Third Party Content. By using the Application Services, Customer may be exposed to content that is offensive, indecent, or objectionable. Atatus is not be responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any goods, services, or information available on or through any third party service or Third Party Content. It is Customer’s responsibility to evaluate the information, opinion, advice, or other content available on and through the Application Services.
Customer will not use the Application Services to: (i) upload, post, email, or otherwise transmit any content that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm Atatus or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) interfere with or disrupt the Application Services or servers or networks connected to the Application Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Application Services; (ix) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (x) “stalk” or otherwise harass another; or (xi) collect or store personal data about other users.
Certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify Atatus if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Atatus of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer.
Subject to this Agreement, if Customer is under a Paying Plan, Atatus will provide unlimited in-product and email support (“Support”). Although no response times are guaranteed, Atatus will use commercially reasonable efforts to respond to such support requests within 48 hours. Atatus may delegate the performance of certain portions of the Support to third parties, but will remain responsible to Customer for delivery thereof. In the event any Support is not performed with reasonable skill, care and diligence, Atatus will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Services through an authorized Atatus reseller, such reseller shall be responsible for Tier 1 support and any other support terms set forth in Customer’s subscription with such reseller.
Customer agrees to the following while using Atatus's Notifications:
USE OF THE APPLICATION SERVICES IS AT CUSTOMER’S SOLE RISK. THE APPLICATION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Atatus AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Atatus DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE APPLICATION SERVICES, AND CUSTOMER RELIES ON THE APPLICATION SERVICES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH THE APPLICATION SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE APPLICATION SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM Atatus OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
(a) To the maximum extent permitted by applicable law, in no event shall either party, its affiliates, directors, employees or its vendors or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, the service or the support; provided, however, that such limitations shall not apply to: (i) Damages arising out of a party’s failure to comply with its confidentiality obligations under section 13; (ii) A party’s indemnification obligations under section 16(d) or 16(e) (as applicable); or (iii) Customer’s payment obligations to Atatus.
(b) Under no circumstances will Atatus be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the service or customer’s account(s) or the information contained therein. Atatus assumes no liability or responsibility for any (i) Errors, mistakes, or inaccuracies of content; (ii) Personal injury or property damage, of any nature whatsoever, resulting from customer’s or authorized users’ access to and use of the service or support; (iii) Any interruption or cessation of transmission to or from the service; (iv) Any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the service; and/or (iv) Customer data or the defamatory, offensive, or illegal conduct of any third party. Except for their respective indemnity and confidentiality obligations hereunder, in no event shall either party, their affiliates, directors, employees, or licensors be liable to the other party or any authorized user for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the fees customer paid to Atatus hereunder.
(c) This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if the non-breaching part has been advised of the possibility of such damage. The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Customer will defend, indemnify and hold harmless Atatus, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Application Services, Customer’s violation of this Agreement, Customer Content, or Customer’s violation of any rights of a third party through use of the Application Services.
Enforcement of any dispute relating to this Agreement will be governed by the laws of the State of California, excluding its conflict and choice of law principles. For parties residing in the United States, the exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Application Services is in the state and federal courts located in City and County of San Francisco, California, and Customer irrevocably agrees to submit to the jurisdiction of such courts.
Atatus’s failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Atatus in writing. In the event that a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer of Warranties, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof.
Atatus also reserves the right to restrict, suspend, or terminate access to the Application Services at any time, if in Atatus’s sole determination, Customer is using the Application Services in a manner that violates applicable laws or the terms of this Agreement, fails to make payment to Atatus or creates an Excessive Burden on Atatus’s systems. “Excess Burden” means when the Application Services are being used to engage in denial of service attacks, spamming, or any illegal activity, and/or use of Application Services is causing immediate, material and ongoing harm to Atatus or Atatus’s other customers.
Copyright Infringement Atatus respects the intellectual property rights of others and we expect our users to do the same. We respond to notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been infringed in connection with the Services or access to your content was disabled or removed by Atatus as a result of an improper copyright infringement notice, please see our DMCA notification procedures found at: https://www.atatus.com/dmca.
If you have any questions or concerns about our Services or these Terms, you may contact us at: email@example.com