1. Acceptance of Terms
The following consists of the terms and conditions governing the access to and use of Attunity Inc.’s (“Attunity” and/or "we") services and software (the “Services”) available at our Web site https://service.attunitycloudbeam.com/ (the “Site”) to you (“you” or “user”) subject to the terms herein contained. By accessing this Site, you acknowledge that you have read, understand, and agree to abide by the terms described herein. If you do not understand or agree to these terms, you should immediately exit this Site. If you continue using this Site you accept and agree to these Terms and Conditions (the “Terms”).
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN DO NOT USE THE ATTUNITY SITE AND SERVICES.
2. Limited License to Access the Site and Services
3. Title & Ownership
All Intellectual Property Rights (defined below) evidenced by or embodied in and/or attached/connected/related to the Service and/or Site, are and shall be owned exclusively by Attunity (or its licensors). These Terms do not convey to you an interest in or to the Services and/or Site, but only a limited right of use revocable in accordance with the terms of these Terms. The rights granted by these Terms are limited to those expressly stated herein, and no additional rights or licenses are being granted by implication or otherwise. "Intellectual Property Rights" means worldwide (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
4. The Services
Attunity provides Services as a mere conduit for the transfer of Your Content (as defined below) according to choices and credentials provided and activated by you at your volition. The data security of such storage and the integrity of Your Content, and/or any act or omission with regards to Your Content which will be carried out in any of the destinations to which you transfer or copy Your Content by using the Services are under your sole responsibility or that of your storage providers, all in accordance with your agreements with the relevant storage provider. You use the Services at your own risk. Attunity will not be held responsible for use of Your Content, including without limitation Your Content's integrity and/or security.
5. Protection of Your Account
When registering for the use of our Services you are required to provide us personal information and content credentials (including without limitation: user name and password, and any log-in or account information you have with your third-party cloud storage providers) (“Your Account”). You agree to provide true, accurate, complete and current information and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. For your protection you agree not to share your registration information (including your user name and password) with any third party for any purpose. You are solely responsible for any information you provide in connection with this Site and your use thereof. You may not authorize any third party to access or use the Services on your behalf. You agree to immediately notify Attunity of any unauthorized use of Your Account. Attunity cannot and will not be liable for any loss or damage arising from any unauthorized use of your account. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
6. Limitations on Use
The Services must be used and maintained in strict compliance with the instruction and safety precautions of Attunity contained herein. Except as specifically permitted herein, you agree not to (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share any of your rights under these Terms with/to anyone else; (ii) transfer, distribute, copy all or any part of the Services and/or Site; (iii) make use of the Services in any jurisdiction where same are illegal; (iv) use, or encourage, promote, facilitate or instruct others to use, the Services or the Site for any illegal, harmful or offensive use; (v) make network connections to any users, hosts, or networks unless you have permission to communicate with them; or (vi) distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements; (vii) distribute, publish, send, or facilitate the sending of any illegal content or content which infringes intellectual property rights of third parties or their right for privacy.
Additionally, Attunity reserves the right, without limitation, to terminate your access to and use of the Site and Services if, in Attunity's view, your conduct fails to meet any of the following guidelines for user conduct:
- You may not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the Site, computer systems and network, or the Services.
- You may not attempt to interfere with any other person’s use of the Services.
- You may not misrepresent your identity or impersonate any person.
- You may not attempt to gain access to any account, computers or networks related to the Services without authorization.
- You may not attempt to obtain any data through any means from the Services, except if we intend to provide or make it available to you.
- You may not attempt to charge others to use the Services either directly or indirectly.
- You may not use the Services to participate in pyramid schemes or chain letters.
- You may not use the Services for defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights of others.
- You may not use the Services to send or otherwise make available, any material protected by intellectual property laws unless you own or control the rights to such material or have received all necessary consents.
- You may not use the Services to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property.
- You may not use the Services to download any material sent by another user of the Services that you know, or reasonably should know, cannot be legally distributed in such manner.
- You may not use the Services to violate any code of conduct or other guidelines which may be applicable to the Services or the Site.
- You may not use the Services to harvest or otherwise collecting information about others, including e-mail addresses.
- You may not attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software used or provided by Attunity in connection with the Site or Services.
- You may not use the Services in a manner that results in excessive bandwidth usage, as determined by Attunity. Use of the Services on the Site will be applied toward such bandwidth usage.
THE SERVICES AND SITE IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS, “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND/OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY REPLIWEB AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9. Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, ATTUNITY AND ITS AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTS AND SUPPLIERS (COLLECTIVELY “AFFILIATES”) ARE NOT AND WILL NOT BE LIABLE UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF ATTUNITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT DEROGATING FROM THE FOREGOING, THE TOTAL AND AGGREGATE LIABILITY OF ATTUNITY AND ITS AFFILIATES TO YOU OR ANY THIRD PARTY SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU FOR THE ONLINE SERVICES PROVIDED VIA THIS SITE, DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
WE MAY CHANGE THE SOFTWARE AND SERVICE OR DELETE FEATURES AT ANY TIME AND FOR ANY REASON. WITHOUT LIMITING THE GENERAL NATURE OF THE FOREGOING ATTUNITY AND ITS AFFILIATES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT; (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA; (3) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE AND SERVICES, (4) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE AND SERVICES AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (5) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SOFTWARE AND SERVICES IN AN ACCURATE OR TIMELY MANNER, (6) ANY LOSS OF USER DATA, AND/ OR (7) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SOFTWARE AND SERVICES AVAILABLE FROM THIRD PARTIES THROUGH LINKS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE MATERIAL BARGAINED FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY YOU FOR THE SERVICES AND IN THE DECISION BY YOU TO ENTER INTO THESE TERMS.
You agree to indemnify, defend and hold harmless Attunity, its officers, directors, employees, stockholders, affiliates, agents and suppliers, from and against any and all claims, liabilities, damages, losses or expenses, including but not limited to attorney's fees and costs, arising out of or in any way connected with breach of these Terms.
11. Content, Sites and Services
You represent that: (i) you own all rights and licenses for all required uses of the content, codes, information, images, photos, text, graphics, logos, trademarks, service marks, designs, audio clips, digital downloads, data compilations, copyrighted materials, software and services uploaded or transferred by you in connection with the Site and/or Services (“Your Content”); (ii) have the right to provide applicable rights in Your Content, including the right to transfer and copy Your Content uploaded or transferred by you via application settings on the Site, which you control and for which you are solely responsible for; (iii) there are no restrictions, limitations, contractual or statutory obligations or restrictions or any other factor whatsoever which prevents or restricts from granting the rights in connection with Your Content ; and (iv) Your Content will not: (a) facilitate or promote illegal activity, or contain content that is illegal; (b) contain content, material or information that is defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (c) contain sexually suggestive or explicit content; (d) infringe upon or violate any right of any third party; (e) disparage, defame, or discredit Attunity or any third person; or (g) otherwise violates any laws, rules, regulations or policies of any competent jurisdiction; (v) you are solely responsible for all aspects related to Your Content.
You hereby grant Attunity a nonexclusive, worldwide, fully paid-up, royalty-free license to use, transfer, and copy Your Content, in any media formats, solely for the purpose of enabling the provision of the Services. Such license will apply to any form, media, or technology now known or hereafter developed. Attunity will not post or share Your Content unless that is the outcome of the use you make of the Services.
Attunity does not endorse or approve Your Content or any other content being processed via the Services, with regards to which Attunity acts as a mere conduit. We do not review such content.
All transactions using the Services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. We may also provide some content to you as part of the Services. However, Attunity is not an agent of any transacting party, nor are we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. Attunity shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Attunity does not endorse or approve any content made available or transferred via the Services, with regards to which Attunity acts as a mere conduit. We do not review such content. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breaches.
12. Suspension and Termination
We may suspend your right to access or use any portion or all of the Service offerings immediately upon notice to you if we determine: (a) your use of the Service offerings (i) poses a security risk to the Service offerings or to any third party, (ii) may adversely impact the Service offerings or the systems or content of any other Attunity customer, or (iii) may subject us, our affiliates, or any third party to liability; (b) you are in breach of these Terms, including if you are delinquent on your payment obligations for more than 15 days; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Either party may terminate these Terms for cause upon written notice if the other party fails to cure any material breach of these Terms within thirty (30) days after receiving written notice of such breach or the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; provided however that the period to cure a breach with respect to payment shall be ten (10) days. Other than as may be provided elsewhere in these Terms, such termination shall be your sole and exclusive remedy in case of a material breach of these Terms by Attunity.
If your license to use the Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, Attunity may, without notice, delete or deny you access to any of Your Account.
Upon termination you shall immediately cease using the Services and the following Sections shall survive: 1, 3, 7-15.
13. Payment of Fees, Refunds
The fees applicable for the Service are as published within the Attunity Subscription Terms using one of the payment methods we support. Attunity reserves the right to change the fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by email to the address you have most recently provided us). Fees are quoted and payable in US dollars. Attunity shall send you a usage report once a month in respect of your use of the Services during the previous month (or any outstanding balance). Payment is due upon receipt of invoice and may be made by credit card only. If you have any questions and/or comments regarding our payment terms of service please contact us at firstname.lastname@example.org.
All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide Attunity any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify Attunity and will pay Attunity any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide Attunity with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
If payment is not received by the end of the given 30 day time period, Your Account may become inaccessible. Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information.
Refunds. All fees are non-refundable. When users cancel their account they will not be issued refunds for their most recent or any previous billing. Other requests for refunds may be processed at the sole discretion of Attunity.
14. Export Control Restrictions.
The Services and/or Site may not be used or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Lebanon, Iran, Syria or any other country to which the U.S. and/or Israel has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By using the Services, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Notice. Attunity may provide you with notices, including those regarding changes to Attunity's terms and conditions, by email, regular mail or postings on the Site.
Waiver. The failure of Attunity to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Attunity.
Applicable Law and Jurisdiction. These Terms are governed by the laws of New York, without regard to the conflict of laws provisions thereof. The exclusive jurisdiction and venue of any action with respect to these Terms shall be the competent courts of New York and Attunity and you hereby submit to the exclusive jurisdiction and venue of such courts for the purpose of any such action.
Claims. YOU AND ATTUNITY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ATTUNITY SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
European Users. By using the Services, users in the European Union understand and consent to the processing of personal information in the United States.
Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Attunity without restriction. Any assignment attempted to be made in violation of this Terms shall be void
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.