Last updated November 1, 2016

Thank you for participating in giving feedback under the Atomist Pre-Release Software Agreement (the “Agreement”). This is software that is not available to the general public, and therefore, there is a specific set of terms you will need to agree to.

This agreement is a legal agreement between you (“you” or “your”) and Atomist, Inc. (“Atomist”, “we”, or “us”). By accessing or using the Pre-Release software, services, and resources available or enabled via the Atomist.com web site ("Service"), or by clicking on the “Accept” button, you are agreeing to be bound by the following terms and conditions of the Agreement.

THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE.

If we make material changes to this Agreement, we will notify you by email or by posting a notice on our site. Continued use of the Service after any such changes shall constitute your acknowledgement of and consent to such changes. The most current version of the Agreement is available for your review at any time at https://atomist.com/pre-release.

1. Atomist Terms of Service Apply

You need to have a user account with Atomist, created by authorizing Atomist on your GitHub account, in order to access Pre-Release Software. In addition to the Atomist Terms of Service, you also agree to the terms of this Agreement. In the event of a conflict between this Agreement and Atomist Terms of Service, the Terms of Service will take precedence, except with respect to any use of pre-release software, in which case this Agreement will take precedence in relation to pre-release software.

2. Pre-Release Use; Confidentiality; Restrictions; Obligations.

2.1 Pre-Release Use

We agree to provide you with access to a pre-release version of the Service in accordance with the terms of this Agreement.  You agree to use good faith efforts to test, use and evaluate the Service and to promptly report to us any errors, problems, defects or suggestions for changes and improvements to the Service. You also agree to assign to us all rights in the Feedback and agree that we shall have the right to use such Feedback and related information in order to improve the Service, or in any other manner.

2.2 Confidentiality

Under the terms of this Agreement, you may get access to certain software, materials, and information that is not available to the general public. You agree that any non-public information that you are given access to under the terms of this Agreement will be considered Atomist’s confidential information (“Confidential Information”), whether or not it is identified or marked as such.  You agree to only use such Confidential Information for the express purpose of testing and evaluation of the Service (the “Purpose”) and not for any other purpose. You agree not to disclose, publish, or disseminate any Confidential Information to any third party other than your employees and then only to the extent that (i) they need to know the Confidential Information for the Purpose; (ii) you ensure that they are made aware of the confidential nature of the Confidential Information; (iii) you remain responsible for the acts and omissions of any such employees; and (iv) such disclosure is not otherwise prohibited.

2.3 Certain Restrictions

Except as permitted in this Agreement, the rights granted to you in this Agreement are subject to the following. You agree not to disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code or algorithms in the Service, except to the extent permitted by applicable law (and provided that you must first request such information from us), nor shall any attempt to do any of the foregoing be undertaken or permitted. You agree not to make the Service available for access or use by any person or entity other than your employees. You agree not to rent, lease, loan or sell access to the Service to any third party or provide it as a service bureau. You agree not to interfere with or disrupt the Service. You agree not to modify or make derivative works of the Service. You agree not to publish any tests or analysis related to the Service.

2.4 Software

Use of, or access to, any software and associated documentation that is made available via the Service (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software.  You agree not to use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement.  At no time will we provide you with any tangible copy of the Software.  We will deliver access to the Software via electronic transfer or download and will not use or deliver any tangible media in connection with (a) delivery, installation, updating or problem resolution of any Software (including new releases); or (b) delivery, correction or updating of documentation.  For the purposes of this Section tangible media shall include any physical data storage medium.  Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution, or use on a service bureau basis.  If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software.  If no license agreement accompanies use of the Software, use of the Software will be governed by this Agreement.  Subject to your compliance with this Agreement, we grant you a non-assignable, non-transferable, non-sub-licensable, revocable, non-exclusive license to use the Software in the manner permitted by this Agreement. Some Software may be offered under an open source license that we will make available to you.  There may be provisions in the open source license that expressly override some of the terms in this Agreement.

3. Term and Termination

The term of this Agreement commences on the date which you click “Agree” or otherwise explicitly agree to the terms of this Agreement in writing, and will continue for one (1) year. The Agreement will renew automatically for successive one-year terms unless either party gives written notice that it would like to terminate at least (30) days before the expiration of the current term. Either party may terminate this Agreement for any reason, without cause, upon (30) days written notice to the other party. If you are in breach of any term of this Agreement, it will terminate immediately, without a notice requirement.

4. Disclaimer of Warranties

You warrant that you have the authority to execute this agreement and perform its obligations.

YOU UNDERSTAND THAT THE SERVICE, AND ANY MATERIALS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  ATOMIST AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING OR OTHERwiSE.  ATOMIST AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND WE GRANT NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM.

5. Limitation of Liability

In no event will Atomist be liable to you for any indirect, special, consequential, reliance, or punitive damages, or for any loss of profits, data, revenue, or for damage to reputation or good will, however arising under this Agreement or in connection with the Service, whether under contract, tort or otherwise, regardless of whether foreseeable or not and regardless of whether such party has been advised of the possibility that such damages may arise, occur or result.

6. Miscellaneous

6.1 Force Majeure

Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

6.2 Governing Law

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue in the state and federal courts located in San Francisco County, California.

6.3 Notice

Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address.  In the event that the last e-mail address you provided is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice.

6.4 Waiver

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

6.5 Severability

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  Without limiting the generality of the foregoing, you agree that Section 5 (Limitation of Liability) will remain in effect.

6.6 Export Control

You may not use, export, import, or transfer any of our Confidential Information or Software except as authorized by U.S. law, the laws of the jurisdiction in which the Confidential Information or Software was obtained.  In particular, but without limitation, Confidential Information or Software may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Service or Software, you represent and warrant that you are not located in any such country or on any such list.

6.7 Entire Agreement

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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