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TERMS OF USE

 

PLEASE READ THE FOLLOWING CAREFULLY BEFORE USING USING OR SUBSCRIBING TO THE SERVICE (DEFINED BELOW).

These Terms of Use are a legal and binding agreement between Atera Networks Ltd. (“Atera”, “us”, “we” or “our”), on the one hand, and you individually or on behalf of your employer or a legal entity (collectively “you” or “your“).

By checking the box for the acceptance of these terms of use or otherwise accepting these Terms, or accessing and using the Services (as defined below) you acknowledge that you, (a) have read and understood and agree to comply with the Terms (b) are at least eighteen (18) years old or of the legal age of majority in your jurisdiction, (c) represent and warrant that you are not, a competitor of Atera; and (d) confirm that you have read and understood the Privacy Policy located at https://www.atera.com/privacy (“Privacy Policy”).

If you are entering into these Terms on behalf of your employer or other legal entity, you represent and warrant that you have full authority to bind said employer or other legal entity to these Terms.

If you do not agree to comply with and be bound by these Terms or do not have the authority to bind your employer or other legal entity, please do not accept these Terms and do not access or use the Service, and to the extent applicable immediately refrain from using it.

You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.

1.THE SERVICE.

1.1. Service. Atera’s Cloud IT Management Service is made available to you on a software-as-a-service (SaaS) basis through a web portal accessible via the Atera website located at www.atera.com (“Site”) and within a mobile application (“Platform”). As used herein, the term “Services” shall mean collectively the Atera Cloud IT Management service, the Platform, and the End-User Software (as defined below).

1.2. No Contingency.  You agree that your Subscriptions are neither contingent on the delivery of any future functionality or features of the Services nor dependent on any oral or written public comments made by Atera regarding future functionality or features of the Services.

 

2. LICENSE.

2.1. License. Subject to your compliance with these Terms, and payment of applicable Fees (as defined below), Atera hereby grants you, and you accept, a limited, non-exclusive, non-transferable, non-sublicensable, and fully revocable right and license, during the Term, and as applicable, including the Trial Subscription (each as defined below), to (i) access and use of the Services; and (ii) distribute, install and use the object code versions of all the downloadable software provided by Atera in order use the Services (“End-User Software”), all in accordance with these Terms, the Documentation (as defined below) and other instructions, guidelines or restrictions as may be provided by Atera in connection with the End-User Software

2.2. Use by Customers and End-Users. The use of the Services is limited to your internal use within the organization you belong to, unless you are an individual or a legal entity that provides remote management of information technology infrastructure and end-user devices managed services (“MSP”). In this event the Services may be used solely in order (i) to provide your services to entities obtaining IT management services from you (“Customers”); and (ii) to distribute, install and use the End-User Software on your Customers’ Devices.

Your end users or your Customers’ end users, as applicable, shall be each and collectively referred as (“End-Users”). For clarity, if you are not an MSP, the term “Customer” does not apply to you, your Subscription, or your use of the Services. If required in writing by Atera, at its sole discretion, your End-Users shall accept the terms of an end-user license agreement for the Services. For the avoidance of doubt, and except for those components of the Services that are designed to be accessible to your End-Users (for example, the customer portal, creation of support tickets and using certain AI Features), your End-Users obtain no independent right to use the Services, and may use the Services only within the scope of the services you provide. The use of such components of the Services by End-Users is subject to the restrictions and obligations set forth in these Terms.

2.3. Software Updates. Atera may, at any time and at its sole discretion, update the End-User Software or any downloadable portion of the Service or otherwise fix bugs, upgrade, or provide new versions thereto (each an “Update“). To the extent that Atera or its authorized representative or business partner, such as distributor or reseller (“Reseller“) provides you with, or notifies you of an Update to be downloaded, upgraded, or installed by you or the End-User, you agree to, and, as necessary, agree to instruct your End–Users and Customer to, (a) act in accordance with any instructions which may be provided by Atera or the Reseller, (b) download and install such Update immediately and (c) immediately cease using the prior version of the End-User Software (except as modified by the Update).

2.4. Documentation. If we make available Documentation to you, you may use such Documentation during your Subscription Term solely for your and/or your organization’s internal business purposes, and, if you are an MSP, as necessary in order to provide your services to your Customers, all in connection with your use of the Services. You may print or copy the Documentation as reasonably necessary for such use, provided that all Marks (as defined below) and Atera copyright notices are included therein. The Documentation shall be considered the Confidential Information (as defined below) of Atera. Unless the Documentation is separately referred to herein, all references to the Services in these Terms shall include the Documentation. “Documentation” means the then-current and official user documentation that Atera generally makes available to its customers, which describes the use, features, and operation of the Services, whether in print or digitally, including without limitation at https://support.atera.com.

 

3. ACCOUNT REGISTRATION AND ADMINISTRATION.

3.1. Account Registration. The first user of the Service, including within the scope of a Trial Subscription, will register and create an account with the Service (“Account”) and will be automatically assigned as the Account administrator (the “Admin”). An Admin may assign or add other employees or contractors as Admins, technicians, or other Account users (Collectively, “Permitted Users”). Access to and use of the Services and the Platform is restricted to Permitted Users, except for those components of the Services that are designed to be accessible to your End-Users (for example, the customer portal, creation of support tickets and using certain AI Features). The use of such components of the Services by End-Users is subject to the restrictions and obligations set forth in these Terms.

3.2. Account Administration. You must not allow anyone other than yourself and the Permitted Users to access or use your Account. You further acknowledge and agree (i) not to exceed the aggregate number of authorized Permitted Users designated in each Order Form; (ii) to provide accurate and complete Account, billing, and login information; (iii) to keep, and ensure that Permitted Users keep, all Account login details and passwords secure at all times; (iv) to remain solely responsible and liable for the activity that occurs in connection with your Account, (v) that the login details for each Permitted User may only be used by that Permitted User, and that multiple individuals or entities may not share the same login details; and (vi) to promptly notify Atera in writing if you become aware of any unauthorized access or use of your Account or the Services. You hereby acknowledge that Atera reserves the right to verify your Account and login information for security and compliance purposes.

 

4. SUBSCRIPTIONS.

4.1. Order Form. Your subscription to the Services (“Subscription”) is subject to the additional terms, restrictions, and/or limitations set forth in the Order Form, including the Subscription’s term (“Subscription Term”), the Fees, the subscription plan (“Subscription Plan”), and the number of Permitted Users. “Order Form” means an order form issued by Atera or its Reseller and accepted by you for the provision of Services (including, without limitation, the in-product page or any other mutually agreed upon in writing offline form). To the extent of any inconsistency or conflict between these Terms and an Order Form, unless specifically stated in the Order Form, these Terms shall prevail.

4.2. Subscription Upgrades. During your Subscription Term, you may upgrade your Subscription Plan by either: (i) adding Permitted Users; (ii) upgrading to a higher type of Subscription Plan; (iii) adding additional features and functionalities; and/or (iv) extending your Subscription Term (collectively, “Subscription Upgrades”). The Platform and/or the Order Form or the relevant notification from Atera shall indicate whether your Subscription Upgrade will be considered a new purchase, which will restart the Subscription Term, or whether the Subscription Update will remain in effect merely during your remainder of the Subscription Term. Following the purchase of a Subscription Upgrade, you will be billed with an amount equal to the applicable increased Fees, at our then-current rates (unless indicated otherwise), either: (i) prorated for the remainder of the then-current Subscription Term, or (ii) if the Subscription Term will be restarted due to the Subscription Upgrade, then the unused portion of the Fees already paid by you will be reduced from the new upgraded Fees, and the difference shall be due and payable by you following the date on which the Subscription Upgrade was made.

4.3. Free Trial Subscription. We may, at our sole discretion, offer a free trial subscription to use the Services or certain functionalities therein, for a limited trial period (“Trial Subscription“). The Trial Subscription, if any, shall commence on the date that you commence access or use of, as applicable, the Services and will conclude at the end of the trial period displayed on your Order Form, the Platform or the Site, or sooner if: (i) you upgrade your Subscription by beginning to pay the applicable Fees, (ii) your use of the Services is terminated in accordance with these Terms, or (iii) we no longer offer the Trial Subscription. You acknowledge and agree that (a) we do not make any commitments or warranties in connection with the Services during the Trial Subscription and, do not guarantee to provide any support services during the Trial Subscription; (b) these Terms are applicable and binding upon you whilst using the Trial Subscription; and (c) we reserve the right to modify, cancel and/or limit a Trial Subscription at any time and at our sole discretion.

4.4. Support. If you have any support-related queries, please contact us via our standard support channels and we will respond to your request in a timely manner. Support related to the Services and Third Party Services may be provided by Atera, its authorized representatives, or the Third Party Service providers.

 

5. RESTRICTIONS, OBLIGATIONS AND REPRESENTATIONS.

5.1. Restrictions. Except as expressly permitted in these Terms, you may not, and shall not allow a Permitted User, Customer, End-User or any third party to: (i) give, resell, sell, rent, lease, timeshare, license, sublicense, disclose, publish, assign, market, display, transmit, broadcast, transfer or distribute any portion of the Services to any third party, including, but not limited to your affiliates, or use the Services in any service bureau arrangement; (ii) use the Services for the provision of any services or for the benefit of any third party, other than, to the extent that you are an MSP, the provisioning of managed services to your Customers (iii) circumvent, disable or otherwise interfere with security-related features of the Services or features that are intended to prevent or restrict use or copying of any content or enforce limitations on use of the Services; (iv) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Services or any components thereof; (v) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Services, or any part thereof; (vi) use any robot, spider, scraper, or other automated means to access or monitor the Services for any purpose; (vii) take any action that imposes or may impose (as determined by Atera at its sole discretion) an unreasonable or disproportionately large load on the Services’ infrastructure or it supporting infrastructure; (viii) interfere or attempt to interfere with the integrity or proper working of the Services, or any related activities or services; (ix) remove, deface, obscure, or alter Atera’s or any third party’s identification, attribution or copyright notices, Marks (as defined below), or other proprietary rights affixed to or provided as part of the Services,; (x) use Atera’s trademarks, service marks and logos (“Marks“) without our prior written consent; (xi) use the Services to develop a competing, or substantially similar services or products; (xii) use the Services to send unsolicited, illegal or unauthorized communications; and/or (xiii) use the Services in any unlawful manner, for any harmful, irresponsible, or inappropriate purpose, to cause damage to any third party or to violate any law, or in breach of these Terms, any terms and conditions of any third-party product or service you use, or agreement you have entered into with any third party. You your End Users, and your Customers shall not sublicense or externally redistribute the Services (in whole or in part) to any third party. You agree to remain fully liable to Atera for any act or omission of an End-User and Customer, and/or a Permitted User that would constitute a breach of these Terms as if such acts or omissions were performed by you. You hereby acknowledge and agree that the restrictions specified under this Section ‎1, shall apply, mutatis mutandis, with respect to your use of the Third Party Service(s) (as defined below).

5.2. You represent and warrant that (i) prior to installing the End-User Software, you have provided all necessary disclosures, notifications, and obtained all necessary consents required under applicable law, including those necessary to permit the installation of the End-User Software, the provision of the Services, and the processing and international transfer of User Data to Atera; (ii) you own or have a right of use all the devices on which the End-User Software will be installed, (iii) to the extent required under any U.S federal, state, or local U.S. or non-US laws (e.g., Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., Title III, 18 U.S.C. 2510 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq.) you have authorized Atera to access the devices and process and transmit data through the Services in accordance with the terms hereof; and (iv) you have the lawful basis in having Atera process the User Data (as defined below) and any personal data that you or your End-User or your Customer provide; and (v) you have provided your Customers and End-Users the necessary warnings and notices with respect to their use of the AI Features according to Section 8.2 hereunder.

To the extent that you are an MSP, you further represent and warrant that your Customers have agreed that you may use the Service with respect to their devices, and, as applicable, install that End-User Software on their devices, in order to provide your managed services to your Customers and that your Customers will agree to any terms provided in connection with such End-User Software prior to installation of the End-User Software. Notwithstanding anything to the contrary, to the extent that you are an MSP, your agreement with your Customers will be consistent with these Terms and will: (i) include provisions that are no less protective of Atera and the Services than these Terms; (ii) provide Atera with the right to use Atera’s remedies at law or in equity against your Customer; and (iii) include a waiver of your Customer’s rights to sue or take legal action against Atera.

You shall be responsible and liable for all acts omissions and activities of your End Users and Customers related to their use or misuse of the Services, including their compliance with these Terms, and the User Data Provided to Atera, as if such acts or omissions were performed by you, and you shall defend, indemnify and hold Atera harmless for any breach, infringement, act and/or omission, as well as for any claims or demands of your Customers and End-Users.

5.3. Usage Limits. Your usage of the Services is subject to usage limits, the number of Permitted Users and the Subscription’s scope specified in an Order Form. In addition, the usage by each Permitted User shall not be excessive compared to the anticipated standard use and shall be limited to a reasonable use (including with respect to the number of devices containing the End-User Software handled per each Permitted User). Each Permitted User must use the password and credential allocated to such Permitted User in order to access the Services and may not share them with any other person, including other Permitted Users. If your Permitted User’s credentials are used by multiple individuals or a Permitted User(s) uses the Services in an excessive way compared to the anticipated standard use, as determined by Atera, you will pay the excess fees to Atera, immediately at Atera’s first request. Your failure to pay such additional fees may result in suspension or termination of your Subscription, your Account, or other penalties, or any combination of the above, as determined by Atera at its sole discretion.

5.4. Web Browser Requirements. You acknowledge that use and access of the Services requires (i) a supported web browser as specified in the Documentation and, (ii) a web browser version that supports HTML5. You are solely responsible for using a supported web browser and upgrading to the then-current minimum web browser requirements that we define from time to time. We shall either: (i) display the then-current web browser requirements on the Site or Platform; or (ii) otherwise notify you directly or via our Resellers of the then-current web browser requirements.

 

6. USER DATA.

6.1. User Data. While using the Services, you may choose to provide, publish, disclose, transfer, submit, upload, import, transmit, post, or make accessible (collectively, “Provide”) to Atera certain of your Permitted Users’, Customers’, or End-Users’ information, data (including personal data), actions, content or software, or any other content or information or combination thereof, which is processed by Atera in your behalf. (“User Data“). You retain all right, title and interest, in and to the User Data, in the form Provided to Atera. Subject to these Terms, you grant us a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, modify, export, and display the User Data solely: (i) to maintain, develop, improve, support and provide our Services; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to compile statistical and performance information for Atera’s business purposes; (iv) to investigate when we have a good faith belief, or have received a complaint alleging, that such User Data was Provided in violation of these Terms; (v) to comply with our obligations under the Terms, applicable laws, a valid legal subpoena, request, or other lawful processes; and (vi) as permitted by you in writing.

6.2. Data Processing Addendum. If your use of the Service includes processing User Data which is subject to the General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA), the processing of such User Data shall be conducted in accordance with the Data Processing Addendum with Atera that is available here (“DPA”). If you wish to receive a signed version, you may do so by contacting our customer support.

6.3. Responsibility. You represent and warrant that: (i) you will collect, process and use the User Data in compliance with these Terms and all applicable laws, rules and regulations; (ii) you own or have obtained the necessary rights, licenses, consents, permissions, power and/or authority to grant the license specified herein (including, to Atera and its sub-processors), for any User Data that you Provide to us, including all of the Intellectual Property Rights (as defined below) subsisting in the User Data; (iii) the User Data does not contain any threatening, offensive, racist, hateful, violent, sexually explicit, obscene, libelous, defamatory or otherwise inappropriate or any commercial content; and (iv) the User Data, and Atera’s and its sub-processors’ use of such User Data, as set forth in these Terms, does not and shall not: (a) infringe or violate any patents, copyrights, trademarks or other Intellectual Property Rights, proprietary or privacy or publicity rights of any third party or any other rights of any third party (including moral rights); (b) violate any local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, data transfer and exportation; (c) include any viruses, trojans, backdoors or malicious code, robot, malware, spyware or any other means which potentially take adverse effect on the confidentiality, availability, integrity, authenticity and/or authorization of the Service, the operating environment or the data processed and/or intended (or that has the potential) to damage or disrupt the Service; and (d) include any restrictions, timers, counters, time-bombs or other similar restrictions. We assume no responsibility or liability for User Data, and you shall be solely responsible for User Data and the consequences of using, disclosing, storing, or transmitting it. Atera reserves the right to monitor your use of the Services and the User Data provided in order to detect and prevent fraudulent activity and/or misuse and/or abuse of the Services and for security and compliance purposes.

6.4. Availability of the User Data. You acknowledge that: (i) the Services do not operate as an archive or file storage service and we do not necessarily store all of User Data that you may Provide; and (ii) you are solely responsible for, and Atera disclaims all warranties in connection with, the backup of User Data. You may download certain User Data which you Provide to us, which is stored by us as part of the Service, at any time during the Term, provided that you comply with these Terms and any security requirements we may designate.

6.5. No Sensitive Data. Notwithstanding anything to the contrary, you represent, warrant, and covenant not to Provide (or cause to be Provided), Atera and/or the Services with, any special categories of personal data, sensitive personal data, or any data that is protected under special legislation and requires unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction; (ii) any protected health information (“PHI”) subject to the Health Insurance Portability and Accountability Act (“HIPAA”), as amended and supplemented, or any similar legislation in other jurisdiction, unless your Subscription allows provisioning of PHI and subject to Atera’s Business Associate Agreement; (iii) credit, debit or other payment card data subject to PCI DSS or any other credit card schemes; ((i)-(iii) shall be referred to each and collectively as “Sensitive Data“). You shall indemnify, hold harmless, and defend Atera, its affiliates and subsidiaries, and its employees, agents, and third-party vendors from and against any liability and responsibility of any kind related to your submission of Sensitive Data and the consequences of your violation of this paragraph.

6.6. Anonymous Information. Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, we may collect, generate, process, use and/or publish Anonymous Information (defined below) relating to your, your Customers’ or your End-Users’ use of the Service, and/or disclose it, in order to provide, improve and publicize the Services and our products and services, in order to track general industry trends, develop and publish white papers, reports and summaries, and for other legitimate business purposes, all the foregoing without restriction or limitation of any kind.  “Anonymous Information” means information that does not enable the identification of an individual, such as aggregated and analytics information. For clarity, Anonymous Information will not include any personally identifiable information, and Atera shall own all Anonymous Information collected or obtained by Atera.

 

7. INTELLECTUAL PROPRIETARY RIGHTS.

7.1. Intellectual Proprietary Rights. The Service, including without limitation any, Marks, underlying data, software, platforms, algorithms, technology, application design, any information, logos, trade-names and brands, services, texts, files, animation, images, sound, music, videos, various applications, organization, structure, specifications, Feedback, Atera’s Confidential Information (each as defined below), any and all related or underlying technology and any modifications, enhancements, improvements, and derivatives thereof and all Intellectual Property Rights related thereto (“Atera IPR”) are the property of Atera and/or its licensors who retain at all times all right, title and interest in connection therewith. No transfer or grant of any rights by Atera is made or is to be implied by any provision of these Terms or by any other provision contained in the Services, except for the limited license set forth in Section ‎1 above. All rights not explicitly granted to you in these Terms are hereby reserved.

Intellectual Property Rights” means worldwide, whether registered or not (a) rights associated with works of authorship, designs, mask works, and photography including copyrights; (b) trademarks, service marks, domain names, logos, trade names, trade dress, the right to publicity and goodwill rights; (c) patents, patent applications, and industrial designs; (d) trade secrets; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and/or (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

7.2. Feedback. We appreciate hearing from our users and welcome your comments, input, and suggestions regarding the Services. Notwithstanding anything to the contrary herein, please be advised, however, that if you send us ideas, suggestions, inventions, or materials regarding the Services (“Feedback”), we shall: (i) own all right, title, and interest in and to the Feedback without any restriction (and you hereby shall transfer and assign all remaining right, title and interest in and to the Feedback to Atera without limitation or restriction of any kind) and to the maximum extent permitted by law you waive the right to assert any moral rights thereto; (ii) not be subject to any obligation of confidentiality; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, without compensation or credit to you or any other person.

7.3. Use of Name and Logo. You hereby acknowledge and accept that Atera may use your name and logo to identify you as a customer of Atera, on Atera’s websites, marketing materials, or otherwise within public announcements.

7.4. DMCA.

7.4.1 Removal of Copyright Content. Atera respects the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement. Pursuant to the Digital Millennium Copyright Act 17 U.S.C. Section 512 (“DMCA”) we have designated a Copyright Agent (as specified below) to receive notifications of claimed copyright infringement in connection with the use of the Services. Please be advised that we enforce a policy that provides, in appropriate circumstances, for the termination of Services for users who are repeat infringers. If you believe that User Data or content shared or made available through the Services has been copied from you or was otherwise used in a way that constitutes copyright infringement, you may notify us of such infringement via [email protected], or otherwise contact our designated Copyright Agent, whilst providing the following information in writing: (1) Your physical or electronic signature; (2) the contact details of the person authorized to act on behalf of the owner of the copyright; (3) a description of the copyrighted work that you claim has been infringed; (4) a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit Atera to locate the material; (5) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.

Atera’s Copyright Agent can be reached at the following address:

Atera Networks Ltd.

45 Rothschild Ave.

Tel Aviv – Jaffa, 6578403, Israel

Attn: Copyright Agent

Email: [email protected]

If Atera receives notice regarding a copyright infringement related to your content or User Data, Atera may remove or disable access to the content claimed to be a copyright infringement at its sole discretion.

7.4.2 Copyright Counter-Notification. If you believe that the User Data or content you Provided was removed from the Services by mistake, and that you have the right to post the User Data or content, you may elect to send us a counter-notification in accordance with Section 512 (g)(3) of the DMCA, in which you must include: (1) your full name, address, phone number and physical or electronic signature; (2) identification of the content and its location before it was removed or disabled; (3) a statement under penalty of perjury that the content was removed by mistake or misidentification; (4) your consent to an appropriate judicial body for any judicial district in which Atera may be found; and (5) any other information required under the relevant provisions of the DMCA. Any notices filed pursuant to this Section ‎4 may be deemed accepted, applicable, and compliant with the DMCA, or not, at Atera’s sole reasonable discretion. Atera reserves the right to notify the person or entity providing the infringement notice of such counter-notice and provide such person or entity with any details included therein.

7.5. API Use. We may offer an application programming interface software that provides additional ways to access and use the Services (“API“). Such API is considered part of the Services, and its use is subject to these Terms. Subject to your compliance with Section ‎5, you may only access and use our API for your internal business purposes, or if you are an MSP in order to provide your managed Services to your Customers, in order to create interoperability and integration between the Services and other products, services or systems you and/or your Customer use internally (“Integration“). When using the API you should follow our relevant Documentation and developer guidelines, which we may update from time to time at our sole discretion. You shall not use the API for any activity that constitutes or encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable law, including, without limitation, laws related to export control, spamming, privacy, intellectual property, computer access, consumer and child protection, obscenity or defamation, or in any manner that is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or similarly offensive, or intended to be such. Atera has no responsibility or liability regarding your reliance upon or use of the API and the actions or omissions that you take (or refrain from taking) in connection with the API or any consequences resulting therefrom. You are, and shall always remain, solely responsible and liable for the Integration, and Atera will have no liability or obligations with respect to the same (including support obligations). Atera does not provide any support, maintenance, or other technical assistance regarding the API, and is under no obligation to create or make available any updates or upgrades to the API. We reserve the right at any time to modify or discontinue, temporarily or permanently, the API and/or your End Users’ and/or Customers’ access to the API (or any part of it) with or without notice, and you are solely responsible to ensure that your, your Customers’ and your End-Users’ use of the API is compatible with its current version.

8 SCRIPTS; AI FEATURES.

8.1. Scripts. Atera may offer functionalities that allow you to create, submit, upload, share, download, and/or use computer scripts (“Scripts”). You understand that these functionalities or the Scripts may not be available at all times, may not be error-free, may be removed by us at any point and may be subject to third-party terms. If you create, upload and/or share Scripts within or to the Service, you represent, warrant, and covenant that (a) you own or have acquired all the necessary permissions and rights to create, upload or share your Scripts, (b) you have complied and will comply at all times with applicable laws, (c) you have not and will not infringe, misappropriate or violate third party rights (including without limitation Intellectual Property Rights, and proprietary or privacy rights) or applicable laws; and (d) the Script does not contain any malware, viruses or other harmful code. We reserve the right to delete and/or remove, fully or partially, any and all Scripts published on the Services at any time and for any reason. By submitting and sharing Scripts, you hereby grant Atera a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicensable, and transferable license to use, process, reproduce, distribute, adapt, transform, prepare derivative works of, display, and perform the Scripts in connection with the Services. You also hereby grant each user of the Services, the Site, or other viewer or user of the Scripts a non-exclusive right to view, use, reproduce, distribute, prepare derivative works of, display, and perform such Scripts. Atera takes no responsibility or liability in connection with your use of the Scripts (including Scripts created with the AI Features (as defined below)) or any third-party use of the Scripts, and you understand and acknowledge that when accessing and/or using the Services and downloading and/or using the Scripts: (i) you may be exposed to Scripts from a variety of sources, (ii) Atera is not responsible and takes no liability for the accuracy, usefulness, integrity, lawfulness, title or infringement, security, functionality or Intellectual Property Rights of, or related to, such Scripts; and (iii) the Scripts are provided “AS IS” and “AS AVAILABLE”, may have errors, and may not be malware-free, and that your interactions with, and use of, the Scripts is at your sole discretion and risk. You hereby agree to waive, and hereby waive, any claims, legal or equitable rights or remedies you may have against Atera with respect to this paragraph.

8.2. AI Features. Atera may use Microsoft Azure OpenAI and other artificial intelligence associated features tools and services, including, without limitation, generative AI to provide you with certain AI-based features such as support ticket summaries, suggested actions and solutions, and scripts (collectively, the “AI Features”). You acknowledge and agree that the use of the AI Features is subject to applicable terms and policies, including without limitation, the content requirements set forth in the Code of Conduct for Azure OpenAI Service (“Azure Policies”). Atera and/or its generative AI related Sub-Processors, may monitor your use of the AI Features in order to monitor and/or prevent and/or debug abusive, unlawful, harmful or unauthorized uses.

You understand and acknowledge that AI Features that we use or may use in the future are provided on an “AS-IS” and “AS-AVAILABLE” basis, without warranties of any kind, and that we make no representation or warranty regarding the accuracy, reliability, usefulness, integrity, lawfulness, title or infringement, functionality or intellectual property rights of, or relating to, the text, data, output, or suitability of AI Features for your particular needs. You assume all risks associated with the use of the AI Features and reliance on the AI features’ recommendations, actions, and outputs. You agree to use the AI Features solely for lawful and ethical purposes and in compliance with the Azure Policies, applicable laws and regulations. You further agree not to use the AI Features to engage in any activity that could damage, disable, overburden, abuse, or impair our Platform, services, or any other user’s use of our platform or Services. You acknowledge that any text or output may not be unique and that other users may generate the same or similar text or output via AI Features, and that the output may derive from a variety of sources. If you use the available AI Features to input, create, rewrite, and/or share text, to the maximum extent permitted by law, you represent, acknowledge, and understand that you have all the necessary permissions and rights to do so, and that you have not and will not infringe, misappropriate or violate third party rights (including without limitation Intellectual Property Rights, and proprietary or privacy rights) and/or applicable law. By using the AI Features, you hereby grant Atera a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicensable, and transferable license to use, process, reproduce, distribute, adapt, transform, prepare derivative works of, display, and perform text (both the input and the output) in order to provide and improve the Services. You agree to fully defend, indemnify, and hold harmless Atera, our affiliates, and our respective officers, directors, employees, and agents from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including but not limited to reasonable attorney’s fees) arising from (a) your use, sharing, uploading, downloading of the AI Features and/or from the outputs (including, without limitation, suggested answers, solutions, and scripts) you create, upload, share, download, and/or use through the AI Features; (b) your violation of third party rights or (c) your breach applicable laws, all regardless if caused by you, your Customers or your End-Users.  It is your responsibility to ensure that you, your Permitted Users, Customers, and End-Users carefully test, review, and vet outputs, tips, actions, recommendations, and deliverables created through the AI Features before they are approved, used, and/or implemented to production. You are solely responsible for the outputs and deliverables created using the AI Features, as well as the consequences of creating, using, implementing, uploading, posting, publishing, or sharing them, whether these actions were taken by you, your Permitted Users, your Customers, or your End-Users.

 

9 LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW:

9.1. ATERA, ITS AFFILIATES, LICENSORS, ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUBCONTRACTS AND SUPPLIERS, AND THIRD-PARTY PROVIDERS, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, COMPENSATORY, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERUPTION, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE SERVICE AND/OR SITE, OR RELIANCE ON ANY OF THE ATERA IPR OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY INCIDENTS, DATA INCIDENTS, BREACHES OF ANY KIND, OR ANY OTHER FAILURE TO PERFORM BY ATERA) ARISING OUT OF THESE TERMS OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE OR SITE OR IN CONNECTION WITH THE ACTIONS AND OMMISSIONS OF THIRD PARTY PROVIDERS, EVEN IF ATERA, ITS AFFILIATES, LICENSORS OR THIRD PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2. Third-Party Services Agreement. Your relationship with such Third Party Service providers and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing, and use of your data by such Third Party Services, are subject to a separate contractual arrangement between you and the provider of a Third Party Service and to its privacy policy (collectively the “Third Party Agreement”). Atera is not a party to, nor responsible, in any manner, for your compliance or the provider of the Third Party Service, compliance with the Third Party Agreement. Notwithstanding the above, when registering procuring, or using Third Party Services through Atera, you thereby instruct Atera to provide the Third Party Services provider the information required in order to register, procure or use such Third Party Service, which may include User Data and/or personal data regarding End-Users.

9.3. Payment for Third Party Services. Third-Party Services may be offered free of charge or for a certain fee, which may be charged directly by the Third Party service provider or by Atera. Whenever Atera charges for a Third Party Service, you acknowledge that Atera serves only as an intermediary role in reselling or collecting the applicable fees and taxes from you, for the Third Party Service provider and agree that Atera may collect the relevant fees from the payment method provided to Atera or to its payment processor. You hereby acknowledge and agree that certain Third Party Services’ fees and usage calculations, as determined by Atera, may differ from the terms set by the Third Party Service provider, and in any discrepancy between the terms, Atera’s fees and usage calculation shall apply. It is your responsibility to make sure that you are aware of the fee and usage calculation terms prior to registering, installing, or using a Third Party Service. You acknowledge that Atera and any Third Party Service provider, may change the fees for the Third Party Service from time to time, including imposing new fees on a Third Party Service that was provided for free. Certain Third Party Services allow a free trial period. Following the lapse of such period, your subscription to the Third Party Service shall automatically convert to a paid subscription and you shall be liable to pay the Fees for the usage of such Third Party Service. Atera may offer the option to purchase credits for Third Party Services. These credits are non-refundable and can only be used for payment of eligible Third Party Services. The duration of credit usage is specified in the Order Form. The calculation of credit usage will be performed by Atera. If your usage of Third Party Services exceeds the available credit, Atera will issue an invoice for the excess usage, which you must promptly pay.

9.4. Third Party Website. The Services may contain resources and content provided by third parties and may include links to third-party websites that are not owned or controlled by Atera. We are not affiliated with, have no control over, and assume no responsibility for the content, privacy policies, or practices of, any third party websites, resources and/or content. You: (i) are solely responsible and liable for your use of and linking to third-party websites and any content that you may send or post to a third party website; and (ii) expressly release us from any and all liability arising from your use of any third party website. Accordingly, we encourage you to read the terms and conditions and privacy policy of each third party website that you may choose to visit.

 

10 CONFIDENTIALITY.

10.1. Confidential Information. In connection with these Terms and the Services (including the evaluation thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology, and marketing information, including without limitation, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure ( “Confidential Information”). For the avoidance of doubt, (i) User Data is regarded as Customer’s Confidential Information, and (ii) the Services, inclusive of their underlying technology, and their respective performance information, Documentation, Order Forms, as well as any data, reports, and materials that Atera provided to you in connection with your evaluation or use of the Services, either before or following your acceptance of these Terms, are regarded as Atera’s Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.

10.2. Confidentiality Undertakings by the Receiving Party. The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers, and agents, on a need-to-know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except: (a) as a part of its performance of its obligations or as otherwise permitted under these Terms; (b) as required to be disclosed to its legal or financial advisors, or pursuant to the order or requirement of a court, administrative agency, or other governmental body; or (c) in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.

 

11 TERM AND TERMINATION.

11.1. Term. These Terms shall become effective on the earlier of: (i) the date that you commence access to, or use of, the Service; (ii) the date specified on the Order Form, and shall remain in effect during the Subscription Term set forth in the Order Form (“Initial Term”), and will be renewed in accordance with the terms herein, unless terminated otherwise in accordance with these Terms. Trial Subscriptions shall be in effect and expire according to their terms made available on the Site.

11.2. Renewal. Except if otherwise specified in an Order Form, at the end of the Initial Term, your Subscription will automatically renew for additional successive Subscription terms equal to the length of the Initial Term (excluding any extended periods) and, unless otherwise notified to you, at the same price (subject to applicable tax changes and excluding any discount or other promotional offer provided for the Initial Term) (the Initial Term, including any renewal Subscription terms shall be referred to collectively herein as the “Term”). If you wish to cancel such auto-renewal, you must cancel the auto-renewal either through the tools that we may make available within the Platform or by contacting [email protected] prior to its renewal.

11.3. Termination for Cause. Either you or us may terminate your Subscription and these Terms, upon written notice, in case that (a) the other party is in material breach of these Terms (or in case of your breach, a breach of an End-User) and to the extent curable, fails to cure such breach, within 30 days following a written notice from by the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days. We may also terminate your Subscription and these Terms (i) if you fail to pay any amount due under these Terms on the due date; or (ii) immediately in circumstances whereby the Services are used other than as intended as reasonably determined by Atera, or whereby your or your End-Users usage adversely affects or interferes with the operation of the Services, or the use of the Services by others.

11.4. Subscription Termination. We may terminate your Subscription (and cease to provide the Service to you) or any portion thereof, or any Third Party Service, as applicable, subject to a written notice, at our sole discretion, including if the Services, portion thereof, or Third Party Service will be discontinued or end-of-lifed by Atera or the Third Party Service provider. If the Services will be completely discontinued according to this section during your Subscription Term, Atera will provide you with a pro-rata refund of the Fees that have been paid in advance for the remainder of your Subscription Term, calculated from the effective date of termination.

11.5. Effect of Termination. Upon termination of your Subscription, your Account and all licenses granted by Atera hereunder shall be terminated, and you will lose all access to Services and to any User Data. It is your responsibility to download your User Data prior to termination of your Subscription. It is also your responsibility to remove the End-User Software from your and/or your Customers’ devices.

If you did not delete the User Data from your Account, we may continue to store and host it according to our data retention policy. We do not accept any liability for any termination of a Subscription or User Data that is deleted in connection thereto. We shall not be liable to you or any third party for termination of your use of or access to the Service, or any portion thereof. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve you from your obligation to pay due Fees due to Atera. In addition, upon the expiration or termination of your Subscription, you shall return to us all Atera Confidential Information, and all copies thereof, in your possession, custody, or control. This Section ‎11.5 and Sections ‎5 (Restrictions), ‎6 (User Data), ‎7 (Intellectual Property Rights), ‎8 (Scripts and AI Features), ‎9 (Third Party Services), ‎10 (Confidentiality); ‎12 (Fees) with respect to unpaid Fees, ‎13 (Warranty Disclaimer), ‎14 (Limitation of Liability), ‎15 (Indemnification), and ‎‎‎16 (General), as well as any other provision which is intended to survive termination of the Terms or your subscription to the Service, shall survive termination of these Terms and your subscription to the Service.

11.6. Suspension. Without derogating from our termination rights above, we may suspend your Subscription and/or your access to the Services, in the following events: (i) if we believe, at our sole discretion, that you or any third party (including your Permitted Users, End-Users or Customers, if applicable), are using the Services in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; (ii) if we believe, at our sole discretion, that you or any third party (including your Permitted Users, End-Users or Customers, if applicable), are using the Services in breach of these Terms or applicable Law; (iii) your payment obligations are or are likely to become, overdue. The aforementioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.

 

12 FEES.

12.1. Fees. Your access to and use of the Services (except within the scope of Trial Subscriptions) is subject to your payment in full of the subscription and other fees as set forth in the Order Form or otherwise in the Site and/or Platform, as well as fees for applicable Third Party Services (“Fees”). You acknowledge and agree that the Fees for your Subscription(s) are based on the number of Permitted Users designated in the Order Form, and that the full amount stated therein shall be due, even if a smaller number of Permitted Users ultimately use the Services in a given Subscription Term. Furthermore, you acknowledge and agree that if within your Subscription Term you do not use the entire Subscription scope or the number of Permitted Users you purchased, no refunds will be provided and the unused Subscription will not be transferred or useable within your Renewal. You shall make such payments, and the Fees for your Subscription(s) shall be charged, in advance of the billing cycle specified in your Order Form, (month or year, as applicable). Fees for each Third Party Service shall be charged according to the payment terms set forth in the Site and/or Platform for such Third Party Service. We may at any time change the Fee amounts, however such changes will apply as of your next billing cycle. We will make reasonable efforts to notify you at least two weeks prior to any changes in Subscription Fees for the Services for which you subscribe. Note that Fees for Third Party Services may have different terms for changing their price change, depending on the provider of the Third Party Service. In the event of failure to collect the Fees, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel your Subscription, your Third Party Service(s), or both.

12.2. Payment Terms. Unless otherwise explicitly specified hereunder, all Fees are non-refundable, and are exclusive of all taxes, levies, or duties, which are your responsibility, except for taxes based on Atera’s net income. If you are located in a jurisdiction which requires you to deduct or withhold taxes or other amounts from any amounts due to us, you must notify us in advance and in writing. In such a case, we reserve the right to assess the withheld amount or to increase the gross amount of the applicable payment so that, after the deduction or withholding for taxes, the net amount paid to us will not be less than the amount we would have received without the required deduction or withholding. The available payment methods, the required payment schedule and additional payment terms are set forth in the Order Form.

12.3. Payment Processing. The Order Form may enable you to purchase a subscription and pay the Fees online by using your credit card or other payment methods accepted by Atera. If you choose to do so, such payment will be processed through a third-party payment processing service, and additional terms may apply to such payments. We reserve the right to use other third-party payment processing services for such purposes in the future. As part of registering to the Services, or providing Atera with your billing information you authorize Atera (either directly or through our affiliates, or other third parties) to charge, request, and collect a payment, refund, or take any other billing actions from your payment method or designated banking account, and to make any inquiries that we (or our affiliates and/or third-parties acting on our behalf) may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your credit card company or banking account (e.g., updated expiry date or card number as may be provided to Atera by your credit card company).

12.4. Resellers. If you purchased a Subscription from a Reseller, then if there is any conflict between these Terms and the agreement entered between you and the Reseller, including any purchase order (collectively, “Reseller Agreement”), then: (a) as between you and Atera, these Terms shall prevail; (b) any rights granted to you and/or any of the Permitted Users in such Reseller Agreement which are not contained in these Terms, apply only in connection with the Reseller; and (c) you must seek redress or realization or enforcement of such rights solely with the Reseller and not Atera. For clarity, you and your Permitted Users’ Subscription are subject to Atera’s receipt from the Reseller of the payment of the applicable Fees due. You hereby acknowledge that at any time, at our discretion, the billing of the Fees may be assigned to Atera or any other authorized third party on its behalf, such that you shall pay the Fees directly to us or the respective third party. Notwithstanding the above, Atera may use its payment processor or other third parties as its Merchant of Record for online transactions, and in such events, such payment processor or other third party terms, as set forth in the Platform, shall further apply. For clarity, Atera shall retain all its rights with respect to enforcing your payment obligations.

12.5. Chargebacks and Late Payment. If, at any time, we record a decline, chargeback, or other rejection or non-payment of a charge of any due and payable Fees on your Account (“Chargeback”), this will be considered a material breach of your payment obligations hereunder, and your Subscription may be disabled or terminated and will not be resumed until you pay all due Fees in full, including any fees and expenses by Atera and/or any Third Party Service for each Chargeback received (including interest calculated on a daily basis until the due Fees are paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law, handling and processing charges and fees incurred by the Atera and/or the payment processor), without derogating from any other remedy that may be applicable to us under these Terms or applicable law.

 

13 WARRANTY DISCLAIMER.

13.1. THE SERVICES AND YOUR USE THEREOF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. YOU ASSUME ALL RESPONSIBILITY FOR ACCESSING AND USING THE SERVICES AND FOR THE SELECTION OF THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS. ATERA, ITS AFFILIATES, (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND SUCSESSORS) (“COLLECTIVELY, “ATERA INDEMNITEES”), THEIR LICENSORS AND THIRD-PARTY PROVIDERS, HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ATERA FURTHER DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU, YOUR END-USER, OR YOUR CUSTOMER MAY SUFFER (INCLUDING TO USER DATA), THAT ARE BEYOND OUR REASONABLE CONTROL.

13.2. ATERA, ATERA INDEMNITEES, AND THIRD-PARTY PROVIDERS, DO NOT WARRANT THAT THE SERVICES OR ACCESS TO AND USE THEREOF WILL BE TIMELY, SECURED, UNINTERRUPTED, ERROR-FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE OR SHALL BE FREE FROM VIRUSES OR OTHER HARMFUL CODE, OR THE SERVER(S) THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR REPAIRABLE.

13.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ATERA, ATERA INDEMNITEES, THEIR LICENSORS, AND THIRD-PARTY PROVIDERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT THE SERVICES (OR ANY PORTION THEREOF) ARE COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT THEY WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU MAY OBTAIN THROUGH THE SERVICES.

13.4. Applicable law may not allow the exclusion of certain warranties, so to that extent, such exclusions may not apply.

14 LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW:

14.1. ATERA, ATERA INDEMNITEES, AND THIRD-PARTY PROVIDERS, SHALL NOT BE LIABLE FOR ANY INDIRECT, COMPENSATORY, EXEMPLARY, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE SERVICES, OR SITE, OR RELIANCE ON ANY OF THE INFORMATION CONTAINED THERIN OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY INCIDENTS, DATA INCIDENTS, BREACHES OF ANY KIND, OR ANY OTHER FAILURE TO PERFORM BY ATERA) ARISING OUT OF THESE TERMS OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES, IN CONNECTION WITH THE ACTIONS AND OMMISSIONS OF THIRD PARTY PROVIDERS, EVEN IF ATERA, ITS AFFILIATES, LICENSORS OR THIRD PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ATERA, ITS AFFILIATES, LICENSORS, OR ITS THIRD-PARTY PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS OR ANY ORDER FORM, ADDENDUM OR RELATED AGREEMENT, INCLUDING ANY DATA PROTECTION ADDENDUM, BUSINESS ASSOCIATE AGREEMENT, OR SERVICES, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) IN CONNECTION WITH THE APPLICABLE ACCOUNT IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

14.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION ‎14 SHALL APPLY: (I) EVEN IF YOU, YOUR AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (II) EVEN IF ANY REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).

 

15 INDEMNIFICATION.

You agree to defend, indemnify, and hold harmless Atera and its affiliates and each of their respective officers, directors, agents, licensors, suppliers, consultants, and employees from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from: (i) your use of the Services, Account and/or User Data; (ii) any third party claim in respect of your use of the User Data; (iii) your breach of these Terms; and/or (iv) your failure to comply with the obligations applicable to you under laws applicable to you, including, as applicable data protection laws or regulations or the DPA.

 

16 GENERAL.

16.1. Export Control; Sanctions. The Services and your Subscription may be subject to Israeli, U.S., or foreign export controls, laws, and regulations (collectively, the “Export Controls”). By using the Service, you acknowledge and confirm that: (i) you are not located or using, exporting, re-exporting, importing, or offering your Subscription, the Services (or any portion thereof) in or to any person, entity, organization, jurisdiction, or otherwise, in violation of the Export Controls; (ii) you are not: (a) organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or subject to Israeli sanctions or comprehensive U.S. economic or trade sanctions (currently, Cuba, Iran, Syria, Lebanon, North Korea, or the Crimea region of Ukraine), (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, (c) the target of U.S. sanctions; or (d) controlled under the U.S. International Traffic in Arms Regulations or similar laws in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export, or re-export hereunder. Atera may further, with or without notice, limit the geographical availability of the Services due to security reasons, at its own discretion; and (iii) you are solely responsible for complying with applicable Export Controls and sanctions, which may impose additional restrictions, prohibitions, or requirements on the use, export, re-export, or import of the Services and/or the User Data.

16.2. Government Use. If you are a U.S. government entity, or these Terms otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that the Services constitute a “commercial item”, “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in these Terms. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to these Terms specifically granting those rights.

16.3. Assignment. These Terms, and any rights granted hereunder, may not be transferred or assigned by you without our written approval, provided that you may assign these Terms to your successor entity or person, resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting rights, except for an assignment to a competitor of Atera, and provided that you provide us with prompt written notice following such assignment and that the respective assignee agrees, in writing, to assume all of your obligations under these Terms. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Services to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section ‎3 shall be null and void.

Modifications. We reserve the right, at our discretion, to change these Terms at any time. When we make material changes to these Terms, unless otherwise stated, such change will be effective ten (10) days following our sending a notice thereof to you or posting the revised Terms on the Site, and your continued use of the Service thereafter means that you accept those changes. Non-material changes, changes made due to regulatory, security, or data protection reasons, as well as due to adding new features and error fixing, shall be effective immediately. In addition, we may add, modify, or discontinue any feature or functionality of the Services at our own discretion and at any time without prior notice. However, if we make any material adverse change in the core functionalities of the Services, we will notify you by posting a notice on the Site, via the Platform, by email, or as we may otherwise decide.

16.4. General. Unless otherwise stated, these Terms, the DPA and Business Associate Agreement (if applicable), and the Order Form, represent the complete agreement concerning the Services and your Subscription between you and Atera and supersede all prior or contemporaneous agreements, documents, and representations, oral or written, related to the subject matter hereof, including any of your terms and condition, or terms and conditions specified in or linked to your order form or ordering document. Section headings are provided for convenience only and have no substantive effect on construction. Except for your obligation to pay Atera, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Nothing herein shall be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. There are no third party beneficiaries to these Terms. If any provision of these Terms is held to be unenforceable, these Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term. These Terms were written in the English language, and may be translated into other languages for your convenience. If a translated, and the non-English version of these Terms conflicts in any way with the English version, the provisions of the English version shall prevail. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

17 GOVERNING LAW AND DISPUTES.

17.1. These Terms and any disputes between you and Atera shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules.

17.2. The exclusive jurisdiction and venue for all disputes between you and Atera shall be the courts located in Tel Aviv-Yaffo, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms. Notwithstanding the foregoing, Atera reserves the right to seek injunctive relief in any court in any jurisdiction.

17.3. Class Action Waiver. You and Atera agree that any proceedings to resolve or litigate any dispute, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor Atera will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or Atera acts or proposes to act in a representative capacity. You and Atera further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of you, Atera, and all parties to any such arbitration or proceeding.

 

Last updated: 7.2.2024

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