Welcome to Automox. Please read the following terms and conditions of service ("Terms") carefully as they contain the legal terms and conditions that you agree to when you access or use Automox Service (defined below) provided to you by Automox Inc. ("Automox," "we," "our," or "us") through the Automox web site (the "Site"). Automox provides an online service that assists customers in the management, monitoring and applying of software patches to devices. Customer (defined below) desires to subscribe to the Automox Service on the terms and conditions set forth herein, and Automox desires to provide access to the Automox platform and provide the Automox Service on the terms and conditions set forth herein.
BY ACCESSING OR USING THE SERVICE YOU AGREE TO BE BOUND BY THE TERMS OF SECTION A AND SECTION C BELOW, WHICH CONTAIN PROVISIONS APPLICABLE TO ALL USERS OF THE SERVICE, INCLUDING CASUAL VISITORS TO THE SITE. IF YOU CHOOSE TO REGISTER FOR AND CREATE AN ACCOUNT ON THE SITE, YOU AGREE TO BE BOUND BY THE TERMS SET FORTH IN SECTION B, IN ADDITION TO THE TERMS OF SECTION C. YOU ALSO ACKNOWLEDGE THAT YOUR SUBMISSION OF THE CREDIT CARD PAYMENT FORM OR REQUEST TO BE INVOICED SERVES AS YOUR AGREEMENT TO THESE TERMS.
YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND. You are responsible for obtaining access to any Service and understand that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those third party fees, including those fees associated with the display or delivery of advertisements (if any). In addition, you must provide and are responsible for all equipment necessary to access the Service.
All brand, product and service names used in the Service which identify Automox are proprietary marks of Automox. All brand, product and service names used in the Service which identify third parties and their products and Service is proprietary marks of such third parties. Nothing in the Service shall be deemed to confer on any person any license or right on the part of Automox or any third party with respect to any such image, logo or name.
Unless otherwise stated in these Terms or on the Site, Automox is the owner of all copyright and database rights in the Service and its contents. You may not publish, distribute, extract, reuse or reproduce any such content in any material form (including photocopying or storing it in any medium by electronic means) other than in accordance with these Terms.
From time to time Automox may provide links that will take you to third party website. These links are provided for your convenience only. If you decide to access linked website you do so at your own risk. Automox does not endorse or take responsibility for the content on other website or the availability of other website and you agree that Automox is not liable for any loss or damage that you may suffer by using other website.
We reserve the right to amend these Terms agreed to by you from time to time without notice. Your continued use of the Site constitutes acceptance of any amendments, additions, or modifications to these Terms.
Automox warrants that it shall provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service shall materially conform to Automox’s then current documentation for the Service under normal use and circumstances. If you notify Automox of a breach of warranty, Automox shall reperform the nonconforming service. The foregoing constitutes your sole and exclusive remedy for any breach of warranty.
AUTOMOX EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICE, THE PLATFORM, THE SITE AND THE LANDING PAGE.
Unless otherwise expressly set forth in the Order Process, the “Term” of this Agreement shall commence on the date that Customer agrees to this Agreement and shall continue until this Agreement is terminated as set forth herein.
Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for ten days following the breaching party’s receipt of written notice of the breach.
Except as otherwise provided for herein, either party may terminate this Agreement for any reason by providing the other party at least thirty days prior written notice.
Upon termination or expiration of this Agreement, (a) Automox shall terminate the Service and remove all copies of the Customer Content from servers within its control and (b) Customer shall promptly pay Automox all amounts owed under this Agreement without regard to whether any invoices had or had not been issued. Sections 2.3, 2.4, 3, 4.3, 5, 7.4 8, 9 and 10 of Section B and all of Section C shall survive termination or expiration of this Agreement.
As between Automox and Customer, Automox owns all right, title and interest in and to the Platform and Service, including any and all intellectual property and proprietary rights in any intellectual property (including without limitation copyrights, patents rights, trade secret right, rights of reproduction, trademark rights, rights of publicity, moral rights, contract rights and the right to secure registrations, renewals, reissues, and extensions thereof) in any country or jurisdiction of the world (“Intellectual Property Rights”) related to or embodied in the Platform and Service. Customer acknowledges and agrees that (i) it does not acquire any rights, express or implied in or to the Platform or Service, except as specifically set forth in this Agreement; (ii) any configuration or deployment of the Platform shall not affect or diminish Automox’s rights, title and interest in and to the Platform; and (iii) if Customer suggests any new features, functionality or performance for the Service and/or the Platform that Automox subsequently incorporates into the Service and/or the Platform, Automox shall have a worldwide, non-exclusive royalty-free perpetual right and license to use and incorporate such suggestions into the Service and/or the Platform. Customer acknowledges that the incorporation of such new features, functionality, or performance shall be the sole and exclusive property of Automox and all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Automox pursuant to the terms of this Agreement.
All rights in and to Platform not expressly granted to Customer in this Agreement are reserved by Automox and its suppliers. Nothing in this Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Automox’s existing or future intellectual property. Customer shall not remove, alter, or obscure any proprietary notices (including copyright notices) of Automox or its suppliers on the Platform.
The Service contains (or you may access through the Service) links to other websites belonging to third parties (“Third Party Services”). Third Party Services and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Automox, and Automox is not responsible for any Third Party Services accessed through the Service or any Third Party Content linked or posted through the Service. Automox uses a third party to process payment transactions. Automox does not ask for, transmit or collect your personal or payment information. Any issues with payments related to the Automox Service should be directed to our third-party payment provider. Automox makes no representations or warranties regarding any Third Party Content found on or through the Services or that is otherwise available using the Services. Customer represents and warrants that any Third Party Content that it uses or has access to shall not (a) be copied, altered, or redistributed by Customer without the prior written consent of the owner of such Third Party Content; or (b) be used in any documents, reports, presentations or publications by Customer without the prior written consent and without attribution to the owner and/or author of such Third Party Content or to any other sources of such Third Party Content as may be appropriate. “Third Party Content” means any information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials that is either (a) provided by third parties (including other users of the Services) to the Services; or (b) made available on third party websites and linked to on the Services.
“Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Platform shall be considered Automox’s Confidential Information, notwithstanding any failure to mark or identify it as such. The terms and conditions of this Agreement are Confidential Information of the parties, but the relationship of the parties created by this Agreement is not Confidential Information.
The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall disclose the Confidential Information of the Disclosing Party only to the employees or individual independent contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party’s obligations under Section 9.2 above with respect to any Confidential Information of the Disclosing Party shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available on the Site that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding the foregoing, Customer grants Automox permission to use its name in Automox’s marketing materials and to publish its name, trademark and/or logo on the Automox website, solely for the purpose of identifying Customer as a customer of Automox.
Automox shall defend, at its own expense, any claim, suit or action against Customer brought by a third party to the extent that such claim, suit or action is based upon an allegation that the Platform infringes any U.S. patents or any copyrights or misappropriates any trade secrets of such third party (“Customer Claim”), and Automox shall indemnify and hold Customer harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Customer specifically attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Automox in writing of such Customer Claim; (b) giving Automox sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Automox’s request and expense, assisting in such defense. Notwithstanding the foregoing, Automox shall have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data not supplied by Automox if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than Automox or its authorized agents or subcontractors. If use of the Site or the Platform is, or in Automox’s opinion is likely to become, enjoined, Automox may at its discretion either: (i) modify the Platform so that it is non-infringing; (ii) replace the portion of the Platform that infringes or allegedly infringes with non-infringing components that is functionally equivalent; (iii) obtain a license that shall enable Customer to continue the use of the Site and Platform as provided hereunder; or, if none of the foregoing are commercially reasonable for Automox, (d) terminate this Agreement. THIS SECTION 10.1 STATES AUTOMOX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS.
Customer shall defend, at its own expense, any claim, suit or action against Automox brought by a third party to the extent that such claim, suit or action arising from or related to (i) any Customer Content, (ii) any User acts or omissions, or (iii) any failure by Customer to meet its obligations under Section 4 (each, an “Automox Claim”), and Customer shall indemnify and hold Automox harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Automox specifically attributable to such Automox Claim or those costs and damages agreed to in a monetary settlement of such Automox Claim. The foregoing obligations are conditioned on Automox: (a) promptly notifying Customer in writing of such Automox Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer shall have no obligation under this section or otherwise with respect to any claim to the extent based upon any gross negligence or intentional misconduct of Automox.
IN NO EVENT SHALL AUTOMOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), OR FOR ANY LOST PROFITS, INTERRUPTED COMMUNICATIONS, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF AUTOMOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUTOMOX’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED DAMAGES IN EXCESS OF THE AMOUNTS RECEIVED BY AUTOMOX DURING THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
This Agreement is governed and construed in accordance with the laws of the State of Colorado without giving effect to any rule or law that would apply the law of another jurisdiction. Both parties submit to the exclusive personal jurisdiction in Colorado and further agree that any cause of action arising under this Agreement shall be brought in a court in Denver County, Colorado.
Each party shall comply with all applicable laws, rules and regulations while performing under this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.
Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
Neither party may assign or transfer, by operation of law or otherwise, this Agreement, or any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without the other party’s prior written consent; except pursuant to a transfer of all or substantially all of such party’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing shall be void. This Agreement shall inure to the benefit of and be binding upon any permitted successors or assigns.
The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-Customer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Automox shall work exclusively for Automox and shall not, for any purpose, be considered employees or agents of Customer. Automox assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five days after the date of mailing.
Automox may, at its sole discretion, delegate the performance of any portion of the Service provided hereunder to any of its affiliates or to a subcontractor of Automox’s choosing. Automox shall require subcontractors to enter into nondisclosure or other agreements consistent with the terms of this Agreement. Automox shall remain responsible for the performance of all services delegated to its subcontractors.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
This Agreement, including the exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
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