Please read these terms of service and all referenced materials carefully before using Automatum Cloud.
By accessing and using the subscription service in any way, you agree to be bound by this agreement, including the warranty disclaimers, limitations of liability, and termination provisions below. If you do not agree to the terms, please leave the application immediately do not use the Subscription Service.
1. Definitions
“Agreement” means these Terms of Service and all materials referred or linked to in these Terms of Service.
'Communication Services' means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enables Customer to communicate with the public at large or with a group.
“Contact Information” means the name, email address, phone number, online user name(s), telephone number, postal address, and similar information voluntarily submitted by Customer, as well as navigational data relating to each Customer. Contact Information does not include Sensitive Information.
'Customer Data' means all Contact Information and other permitted information submitted by Customer to, or collected by Customer via, the Subscription Service. Customer Data does not include Sensitive Information.
'Customer Materials' means all materials that Customer provides or posts, uploads, inputs or submits for public display through the Subscription Service. Suggestions, feedback and comments relating to the functionality or use of the Subscription Service provided by Customer personnel to Automatum Cloud are not Customer Materials. Customer Materials does not include Sensitive Information.
'Customer' means the person or entity using the Subscription Service and identified in the applicable statement or Order Form as the Automatum Cloud customer.
'Automatum Cloud' means Automatum Cloud Pty Ltd and any entity, which directly or indirectly controls, is controlled by, or is under common control with Automatum Cloud Pty Ltd.
'Automatum Cloud' means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Subscription Service by Automatum Cloud.
“Order Form” means the Automatum Cloud approved form by which Customer agrees to subscribe to the Subscription Service.
“Personal Data” means any information relating to an identified or identifiable natural person including name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data may include Sensitive Information.
“Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers or similar identifiers, racial or ethnic origin, physical or mental health condition or information, other employment, financial or health information, and information specific to an individual’s physical, physiological, genetic, mental, economic, cultural, or social identity.
'Automatum Cloud Subscription Service' or “Subscription Service” means the particular edition and elements of Automatum Cloud's Automatum Cloud applications, tools and platform subscribed to by Customer under an Order Form, and developed, operated, and maintained by Automatum Cloud, accessible via www.Automatum Cloudknows.com or another designated URL, and any ancillary online or offline products and services provided to Customer by Automatum Cloud, to which Customer is being granted access pursuant to this Agreement and an Order Form. The Subscription Service includes the Automatum Cloud Content and does not include training services, consulting services, and Third-Party Products.
'Third-Party Products' means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Subscription Service, and are identified as being provided by third parties.
'Third-Party Sites' means third-party websites linked to from within the Subscription Service, including without limitation Communications Services.
'User(s)' means Customer's employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for the benefit of Customer and who have been supplied user identifications and passwords by Customer (or by Automatum Cloud at Customer’s request).
2. The Subscription Service
a. Access. During the Subscription Term and as provided in this Agreement, Automatum Cloud will provide Customer access to use the Subscription Service.
b. Limits. Automatum Cloud may limit the use of certain features of the Subscription Service in its sole discretion. Automatum Cloud may suspend, limit, or terminate the Subscription Service for any reason at any time without notice.
c. Modifications. Automatum Cloud modifies the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve its customers’ experience. Nothing in this Agreement shall prohibit Automatum Cloud from making such changes to the Subscription Service. Automatum Cloud reserves the right to provide some or all elements of the Subscription Service through the use of third-party providers.
3. Fees and Payments.
There is no fee for the basic or free version of Automatum Cloud Subscription. If Customer chooses to upgrade to a premium plan or paid service, Customer authorizes Automatum Cloud to charge Customer's credit card or bank account in the amount of the monthly service fee. Customer further authorizes Automatum Cloud to use a third party to process payments and consents to the disclosure of Customer's payment information to such third party. All payment obligations are non-cancelable and all amounts paid are non-refundable.
4. Subscription Term and Renewal.
The subscription term shall be monthly or annually, based on the user's selection. Unless either party gives the other written notice that it does not intend to renew the subscription, this Agreement will be automatically renewed on a monthly or annual basis.
5. Automatum Cloud’s Proprietary Rights.
This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement. The Subscription Service, including all intellectual property rights therein and derivatives and modifications thereto, belong to and is the property of Automatum Cloud or its licensors (if any). The Automatum Cloud Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Automatum Cloud Content, or the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by Automatum Cloud. Automatum Cloud, the Automatum Cloud logo, Automatum Cloud, and other marks used by Automatum Cloud from time to time are trademarks and the property of Automatum Cloud. The appearance, layout, color scheme, and design of the Automatum Cloud site are protected trade dress. Customer does not receive any right or license to use the foregoing.
6. Customer’s Proprietary Rights.
As between the parties, Customer shall own and retain all rights to the Customer Materials, Customer Data, and any works specifically created by Automatum Cloud for transfer to Customer where a separate written agreement grants ownership of the work to Customer. All Personal Data collected by or supplied to Automatum Cloud will at all times be owned by the individual identified by such Personal Data. This Agreement does not grant Automatum Cloud any ownership rights to Customer Materials, Customer Data, Personal Data, or Sensitive information. Customer grants permission to Automatum Cloud and its licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service to Customer, and not for any other purpose.
7. Publicity.
Customer grants Automatum Cloud the right to add Customer’s name and company logo to its customer list and website. Except for the foregoing, neither party may use the other party’s name or logo without the other party's prior written consent.
8. Customer, User, and Personal Data.
Automatum Cloud may monitor use of the Subscription Service by all of its customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Subscription Service. Customer agrees that Automatum Cloud may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.
CUSTOMER AGREES NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AUTOMATUM CLOUD DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER AGREES THAT ALL USERS WILL BE AT LEAST TWENTY-ONE (21) YEARS OF AGE AND THAT ALL CUSTOMER DATA AND PERSONAL DATA SUBMITTED BY CUSTOMER IN CONNECTION WITH THE SUBSCRIPTION SERVICES WILL RELATE TO USERS AND/OR INDIVIDUALS WHO ARE AT LEAST TWENTY-ONE (21) YEARS OF AGE.
Automatum Cloud may collect, use, process, store, and share certain Customer Data, Sensitive Information, and Personal Data in connection with providing the Subscription Services. Any such collection, use, processing, storing, or sharing is subject to the terms and conditions of Automatum Cloud’s Privacy Policy (URL) which is hereby incorporated into this Agreement by reference. Customer agrees that Customer Data, Sensitive Information, and Personal Data may be collected and used by Automatum Cloud in connection with the Subscription Services and Customer hereby consents to such use and collection.
9. Acceptable Use of Communications Services.
Customer agrees to use third-party Communication Services only in compliance with any terms of use specified by each Communication Service. Automatum Cloud does not control or endorse the content, messages or information found in the Communication Services and, therefore, Automatum Cloud specifically disclaims any and all liability with regards to the Communication Services and any actions resulting from Customer’s use of the Communication Services.
10. Third-Party Sites and Products.
Third-Party Sites and Products are not under Automatum Cloud’s control, and Automatum Cloud is not responsible for the contents of any Third-Party Site or Product, including without limitation any link contained in a Third-Party Site, or any changes or updates to a Third-Party Site or Product. Automatum Cloud is not responsible for any other form of transmission received from any Third-Party Site. The Third-Party Sites and Products are provided to Customer only as a convenience, and the inclusion of any Third-Party Site or Product does not imply endorsement by Automatum Cloud of the Third-Party Site or Product or any association of Automatum Cloud with it.
11. Indemnification.
Customer will indemnify, defend and hold Automatum Cloud harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Automatum Cloud (and its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Automatum Cloud to the extent that such Action is based upon or arises out of (a) Customer’s use of the Subscription Service; (b) Customer’s noncompliance with or breach of this Agreement, (c) Customer’s use of Third-Party Products, (d) the unauthorized use of the Subscription Service by any other person using Customer’s User information, or (e) Customer’s unauthorized use, collection, storage, processing, or disclosure of Personal Data. Automatum Cloud shall use commercially reasonable efforts to: notify Customer in writing within thirty (30) days of Automatum Cloud’s becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Automatum Cloud of all liability); and provide Customer (at Customer’s expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer shall not accept any settlement that (i) imposes an obligation on Automatum Cloud; (ii) requires Automatum Cloud to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Automatum Cloud without Automatum Cloud’s prior written consent.
12. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICE IS PROVIDED 'AS IS' WITHOUT WARRANTY OR CONDITION OF ANY KIND. AUTOMATUM CLOUD AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, AND THE AUTOMATUM CLOUD CONTENT INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Automatum Cloud IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
b. No Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, EVEN IF SUCH PARTY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
c. Limitation of Liability. EXCEPT FOR CUSTOMER'S LIABILITY FOR PAYMENT OF FEES AND CUSTOMER'S LIABILITY ARISING FROM ITS INDEMNITY OBLIGATIONS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF ONE HUNDRED DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
d. Third Party Products. Automatum Cloud DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. Automatum Cloud’s LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND AUTOMATUM CLOUD'S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SUBSCRIPTION SERVICE SHALL BE SUBJECT TO THIS SECTION.
CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, AUTOMATUM CLOUD WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO CUSTOMER.
13. Termination and Expiration.
Either party may terminate this Agreement at any time upon notice. Immediately upon termination or expiration of this Agreement as provided herein, Customer shall cease all use of the Subscription Service and return or destroy all Automatum Cloud Content in its possession.
14. General
a. Amendment; No Waiver. Automatum Cloud may update and change any part or all of this Agreement, including fees. If Automatum Cloud updates or changes this Agreement, the updated Agreement will be posted at http://www.automatumcloud.com/terms-of-service. The updated Agreement will become effective and binding on the next business day after it is posted. Automatum Cloud encourages Customer to review this Agreement periodically. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion. Notwithstanding the foregoing, Automatum Cloud will comply with all applicable laws and regulations to the extent that any change or update to this Agreement changes or updates the manner in which Automatum Cloud will collect, use, process, share, or store Personal Data.
b. Applicable Law. To the maximum extent permitted by law, this Agreement and all Order Form(s) shall be governed by the laws of the Commonwealth of Massachusetts, U.S.A. without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in Nashville, Tennessee, U.S.A. in all disputes arising out of or relating to the use of the Subscription Service. Use of the Subscription Service is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.
c. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable pursuant to applicable law including without limitation the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
d. Notices. Notice shall be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and shall be deemed delivered as of the date of actual receipt. To Automatum Cloud: Automatum Cloud, Inc., 90 Oceanside Drive, Nashville, TN 37024. To Customer: Customer’s address as provided in Automatum Cloud’s account information for Customer. Automatum Cloud may give electronic notices specific to Customer by email to appropriate Customer e-mail addresses on record in Automatum Cloud’s account information for Customer.
e. Entire Agreement. Unless otherwise expressly stated herein, this Agreement (including each Order Form), along with any Automatum Cloud exhibit or addendum hereto, including any Order Form, constitutes the entire agreement between Customer and Automatum Cloud with respect to the Subscription Service and supersedes all prior or contemporaneous communications, proposals and agreements, whether electronic, oral or written, between Customer and Automatum Cloud with respect to the subject of this Agreement.
f. Assignment. Customer will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without Automatum Cloud’s prior written consent, which will not be unreasonably withheld.
g. Contract for Services. The parties intend this Agreement to be a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
h. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Fees and Payments’, ‘Automatum Cloud’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination and Expiration’, and ‘General’.
