Last Updated: July 24, 2018
This Subscription Agreement (“Agreement”) contains the terms and conditions upon which Atomist, Inc. ("Atomist") provides subscriptions and services to the customer listed on the applicable Order Form (“Customer”).
1. License Grant and Restrictions.
1.1 License. Subject to the terms and conditions of this Agreement, Atomist grants to Customer, during the applicable Subscription term, a limited, non-exclusive and nontransferable license to access and use the Atomist Services designated on the applicable Order Form solely for the purpose of Customer’s internal business operations.
1.2 Restrictions. Except as otherwise expressly permitted in this Agreement, Customer will not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, Atomist Services to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Atomist Services; (c) allow access or permit use of the Atomist Services by any third party except authorized third-party contractors solely to provide services to Customer, provided that Customer will be liable for all acts and omissions of such authorized third-party contractors; (d) circumvent the license keys embedded within the Atomist Services; (e) modify or create derivative works based upon the Atomist Services; (f) disclose the results of any benchmark test of the Atomist Services to any third party; or (g) change any proprietary rights notices which appear in the Atomist Services.
1.3 Open Source Software. The Atomist Services and Deliverables may include individual open source software components, each of which has its own copyright and its own applicable license conditions. These open source software components are licensed to Customer under the terms of the applicable open source license conditions and/or copyright notices that can be found in the license files at https://github.com/atomisthq/third-party-oss/, the Documentation or other materials accompanying the Atomist Services and Deliverables.
2. Professional Services. Atomist will provide Professional Services for Customer as set forth in the applicable Order Form. Customer will reimburse Atomist for all travel and living expenses incurred by Atomist personnel in performing the Professional Services.
3. Fees and Payment. Customer agrees to pay Atomist the Fees as stated on the applicable Order Form. Customer will pay directly any taxes arising out of this Agreement or Atomist’s performance under this Agreement but excluding taxes on Atomist’s net income. If any applicable law requires Customer to withhold amounts from any payments to Atomist under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Atomist with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Atomist receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Atomist would have received and retained absent the required deduction or withholding. Unless set forth in the applicable Order Form, Fees will be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid within thirty (30) days of the date of the invoice. Payments are nonrefundable and will be made without right of set-off or chargeback. If Customer fails to pay Fees in accordance with this Section, Atomist may suspend fulfilling its obligations under this Agreement until such payment is received by Atomist.
4. Support Services. and Service Credits. During the applicable Subscription term, Atomist will provide Support Services for the Atomist Services on the terms and conditions set forth at https://atomist.com/support-services and the Service Levels and Service Credits for the Atomist Services on the terms and conditions set forth at https://atomist.com/sla.
5.1 Atomist Services. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in this Agreement, Atomist has and will retain all rights, title and interest in and to the Atomist Services (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Atomist Services and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
5.2 Deliverables. Customer acknowledges that Atomist may create software or other works of authorship delivered to Customer pursuant to or in connection with the performance of consulting Professional Services (a “Deliverable”). Subject to Customer’s rights in the Customer Confidential Information, Atomist will own all right, title and interest in such Deliverables, including all intellectual property rights therein and thereto. Atomist grants to Customer a nonexclusive, non-transferable, royalty-free license to use any Deliverables for Customer’s internal purposes.
5.3 Training Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any training materials provided by Atomist to Customer in connection with the provision to Customer of training Professional Services (“Training Materials”), other than the rights of use specifically granted in this Agreement. Customer will be entitled to keep and use all Training Materials provided by Atomist to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Atomist. In particular, and without limitation, Training Materials may not be modified, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All Atomist trademarks, trade names, logos and notices present on the Training Materials will be preserved.
6.1 Atomist Services. Atomist warrants to Customer only that, for a period of thirty (30) days following the date the Atomist Services are initially purchased by Customer under this Agreement ("Warranty Period"), the Atomist Services will substantially conform to the description contained in the applicable Documentation. If during the Warranty Period the Atomist Services do not substantially conform to the description contained in the applicable Documentation, Customer’s sole remedy is that Atomist will perform the Support Services described in Atomist Support Services.
6.2 Services. Atomist warrants that the Services will be performed in a workmanlike manner and will conform to standards of the industry. If the Services are not performed as set forth above, Atomist will re-perform the applicable Services.
6.3 Service Levels and Service Credits. Atomist will provide the Service Levels and Service Credits as described in Atomist Service Levels.
6.4 The remedies in Section 6.1, 6.2 and 6.3 are Customer’s sole and exclusive remedies for breach of warranty and Atomist’s sole and exclusive liability for breach of warranty.
6.5 The warranties in Sections 6.1, 6.2 and 6.3 are made to and for the benefit of Customer only. The warranties will apply only if: (i) the Atomist Services have been properly installed and used at all times in accordance with the instructions in the applicable Documentation; (ii) no modification, alteration or addition has been made to the Atomist Services; and Atomist receives written notification of the breach within thirty (30) days of the initial purchase.
6.6 Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 6, THE ATOMIST SERVICES, SERVICES, DELIVERABLES, DOCUMENTATION AND TRAINING MATERIALS ARE PROVIDED “AS-IS” AND ATOMIST AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, THE ATOMIST SERVICES, SERVICES, DELIVERABLES, DOCUMENTATION AND TRAINING MATERIALS ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS. CUSTOMER ACKNOWLEDGES THAT ATOMIST HAS NO RESPONSIBILITY FOR ANY HARDWARE ON WHICH CUSTOMER INSTALLS OR EXECUTES THE ATOMIST SERVICES.
7. Indemnification. Subject to the terms of this Agreement, Atomist will (i) defend, or at its option settle, a third party claim brought against Customer alleging that the Atomist Services or Deliverables infringe such third party’s patent, copyright or trademark, or makes intentional, unlawful use of such party’s trade secret (each, an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Atomist or pay any damages finally awarded against Customer to such third party by a court of competent jurisdiction as the result of such Infringement Claim; provided that Customer: (a) notifies Atomist promptly in writing of such Infringement Claim, (b) grants Atomist sole control over the defense and settlement of such Infringement Claim, and (c) reasonably cooperates in response to a Atomist request for assistance. Atomist will have the exclusive right to defend any such Infringement Claim and make settlements at its own discretion, and Customer may not settle or compromise such Infringement Claim, except with prior written consent of Atomist. If Customer’s use of any Atomist Services or Deliverables is enjoined, Atomist will, at its option and expense, (A) procure for Customer the right to make continued use of the Atomist Services or Deliverables, (B) replace or modify such so that they become non-infringing, or (C) request return of the Atomist Services or Deliverables, and upon receipt of such Atomist Services or Deliverables, the corresponding licenses are terminated and Atomist will refund as applicable the prepaid but unused Fees paid for the infringing Atomist Services or the Fees paid for the infringing Deliverables less straight line depreciation based on a three (3) year useful life. Atomist will have no liability under this Section 7 if the alleged infringement is based on: (1) combination with non-Atomist Atomist Services, data or business processes, (2) use for a purpose or in a manner for which the Atomist Services or Deliverables were not designed, (3) use of any older release of the Atomist Services or Deliverables when use of a newer Atomist revision would have avoided the infringement, (4) any modification or alteration of the Atomist Services or Deliverables, (5) any intellectual property right owned or licensed by Customer, excluding the Atomist Services or Deliverables, (6) Atomist's compliance with any materials, designs, specifications or instructions provided by Customer, (7) open source software, or (8) Customer using the Atomist Services or Deliverables after Atomist notifies Customer to discontinue using due to such a claim. THIS SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ATOMIST’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
8. Limitation of Liability. IN NO EVENT WILL ATOMIST OR ITS SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED. IN NO EVENT WILL ATOMIST’S CUMULATIVE LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID TO ATOMIST BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO EVENT WILL ATOMIST’S SUPPLIERS HAVE ANY LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER, ATOMIST AND ATOMIST'S SUPPLIERS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9. Term and Termination.
9.1 This Agreement will commence on the Effective Date and continue until terminated as set forth in this Agreement (“Term”). Either party may terminate this Agreement upon notice in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of receipt of written notice. Each Subscription will begin on the date Customer purchases the Subscription by entering into an applicable Order Form and will continue during the time Customer has paid the initial Subscription Fees (“Initial Term”), unless terminated earlier in accordance with this Section 9.1. Subscriptions will automatically renew for additional terms of one (1) year each (each a “Renewal Term”) unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The applicable licenses granted in Section 1 of this Agreement automatically terminate upon the termination of the underlying Subscription or this Agreement.
9.2 Sections 1.2 and 5-12 will survive the expiration or termination of this Agreement.
10. Confidentiality. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the Receiving Party will (i) hold the Confidential Information of the Disclosing Party in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party will disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and will ensure that such employees and contractors comply with the provisions of this Section. The obligations under this Section will not apply to information that the Disclosing Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure to the Receiving Party becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (c) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party prompt notice thereof if the Receiving Party is legally permitted to do so. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Atomist, its employees and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Subscriptions and Services performed under this Agreement.
11.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement which does not include the use of the Atomist Services and Services in violation of the terms of this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Atomist Services and Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement.
11.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
11.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
11.4 Force Majeure. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due).
11.5 No Third Party Beneficiaries. Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Atomist and Customer and do not create any right in favor of any third party.
11.6 Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of New York, without reference to the principles of conflicts of law. The provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties will attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in New York, New York. Any litigation related to this Agreement will be brought in the state or federal courts located in New York, New York, and only in those courts and each party irrevocably waives any objections to such venue.
11.7 Notices. All notices must be in writing and will be effective three (3) days after the date sent to the other party’s headquarters, Attention Legal Department.
11.8 Government Regulation. Customer acknowledges that the Atomist Services and Deliverables are subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Customer may not export or re-export the Atomist Services or Deliverables except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. Customer will not and will 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 Atomist Services, Deliverables or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. 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 (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Atomist Services and Deliverables are further restricted from being used for terrorist activity, or for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government. The Atomist Services, Deliverables and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Atomist Services, Deliverables and Documentation by the U.S. Government will be governed solely by the terms of this Agreement.
“Atomist Services” means the hosted services licensed by Atomist to Customer under this Agreement as listed on the applicable Order Form.
“Confidential Information” means any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by one party to the other party under this Agreement in connection with the transactions contemplated under this Agreement, including (i) all trade secrets, (ii) existing or contemplated Atomist Services, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any related information, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements.
“Disclosing Party” means the party to this Agreement disclosing Confidential Information to the other party.
“Documentation” means the electronic user and administrative manuals contained within the Atomist Services.
“Error” means a reproducible failure of the Atomist Services to comply in a material respects with its Documentation when used as authorized in the Agreement.
“Fees” mean the fees set forth in the applicable Order Form for Subscriptions, Services and any travel expenses incurred by Atomist personnel in performing the Services.
“Named Contacts” means the engineering and support personnel who are knowledgeable and trained on the Atomist Services that are authorized to contact Atomist for Support Services.
“Named Users” mean the named individuals authorized to access the Atomist Services.
"Order Form" is an order form entered into by Atomist and Customer for Subscriptions and / or Professional Services which incorporates this Agreement.
“Professional Services” mean the consulting and training services provided by Atomist under this Agreement.
“Receiving Party” means the party to this Agreement receiving Confidential Information from the other party.
"Services" means collectively the Support Services and the Professional Services.
"Subscription" means the term license to access the Atomist Services and Support Services for the Atomist Services during such term as described the applicable Order Form and the Agreement.
“Support Services” mean the maintenance and support Services provided by Atomist under this Agreement as further described in Atomist Support Services.
“Update” means a new version of the Atomist Services.
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