Hosted software-as-a-service (SaaS) platform access terms and conditions
Last updated on 17.01.24
These terms and conditions of service (the “Terms and Conditions”) govern your (“You", “Your”, as applicable) access to and use of Nanometrics Inc.’s (“Nanometrics”) platform and service offerings, including Athena, SiteAlert, and Argo (the “Services”). Where You are accessing or using the Services as an authorized user of another organization or entity, references to “You” and “Your” shall include the entity for which you are an authorized user. Nanometrics may update these Terms and Conditions from time to time in its sole discretion. Your continued use of the Services after a change to the Terms and Conditions will be subject to Your acceptance of the revised Terms and Conditions.
IMPORTANT: BEFORE USING THE SERVICES, PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS, WHICH GOVERN YOUR ACCESS AND USE OF THE SERVICES. BY INDICATING YOUR ACCEPTANCE BELOW OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU WILL BE DEEMED TO HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS ON YOUR OWN BEHALF AND ON BEHALF OF ANY ENTITY FOR WHICH YOU ARE AN AUTHORIZED USER OF THESE SERVICES. THE SERVICES ARE ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT, EMPLOYEE, CONTRACTOR OR PERSONNEL OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU ARE DULY AUTHORIZED TO ACCEPT THESE TERMS AND CONDITIONS ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS.
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE OR ACCESS THE SERVICES AND MUST DISCONTINUE YOUR ACCESS AND USE IMMEDIATELY.
1. Definitions: For the purposes of these Terms and Conditions, an “Affiliate” of Nanometrics means any corporation or other legal entity that Nanometrics directly or indirectly controls, is controlled by, or is under common control with. In this context, an entity “controls” a corporation or other entity if it or any combination of it and/or its Affiliates own fifty percent (50%) or more of the voting rights for the board of directors or other mechanism of control for such corporation or other entity.
2. Grant of License: Subject to Your acceptance of and compliance with these Terms and Conditions, Your compliance with applicable laws, and Your payment of the applicable fees, if any, Nanometrics grants You a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, internal license to use the particular Service for which You have been provided login credentials (the “Login Credentials”) for the sole purposes of viewing, administering or managing recorded seismic event catalogue (where such Service is Athena), ground motion impact (where such Service is SiteAlert) or seismic station operation (where such Service is Argo) data. No other rights in the Services are granted to You.
3. Restrictions: You shall not, directly or indirectly: (a) reverse engineer, disassemble, reverse translate, decompile or in any other manner decode or attempt to derive the source code of the Services except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary; (b) distribute, grant a security interest in, assign, rent, lease, or otherwise transfer or make available the Services; (c) modify or create any derivative works of the Services or merge all or any part of the Services with another program; (d) circumvent or attempt to circumvent any security controls present in the Services; (e) degrade or otherwise attempt to diminish or negatively impact the performance or operation of the Services for You or any other user of client of Nanometrics; (f) disclose any performance, benchmarking, or feature-related information about the Services; or (g) use the Services in competition with Nanometrics in any way. You shall not permit any third party to do any of the foregoing. You acknowledge that the Services contain confidential information (including but not limited to the look and feel, layout, performance, and presentation of the Services) and You shall not use or disclose such confidential information. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Services or confidential information, except as expressly permitted herein. Your Login Credentials are solely for Your use. You are responsible for maintaining the confidentiality of Your Login Credentials and You are responsible for all activities that occur under Your Login Credentials. You are required to take adequate precautions with Your Login Credentials and immediately notify Nanometrics of any unauthorized use of Your Login Credentials.
4. DISCLAIMER OF WARRANTIES: THE SERVICES ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, NANOMETRICS AND ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE, DURABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, THE ENTIRE RISK OF THE UTILIZATION OF THE SERVICES SHALL BE BORNE BY YOU.
5. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NANOMETRICS NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND/OR RESELLERS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THESE TERMS AND CONDITIONS, RELATED TO OR ARISING OUT OF THE SERVICES, OR RELATED TO ANY OTHER SERVICE OR OFFERING PROVIDED TO YOU BY NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND/OR RESELLERS) IN RELATION TO THE SERVICES FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THESE TERMS AND CONDITIONS, RELATED TO OR ARISING OUT OF THE SERVICES, OR RELATED TO ANY OTHER SERVICE OR OFFERING PROVIDED TO YOU BY NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS) IN RELATION TO THE SERVICES, EXCEED THE FEES PAID BY YOU TO NANOMETRICS FOR ACCESS TO THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE NOT INTENDED TO AND DO NOT PROTECT OR MITIGATE AGAINST GEOPHYSICAL EVENTS, NATURAL DISASTERS, OR OTHER SIMILAR EVENTS (INCLUDING BUT NOT LIMITED TO SEISMIC EVENTS OR EARTHQUAKES) AND THAT NANOMETRICS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES (INCLUDING PHYSICAL LOSSES DAMAGE TO PERSONS OR PROPERTY) RESULTING THEREFROM OR FOR ANY FAILURE TO ADDRESS, RESPOND TO, MONITOR, MITIGATE AGAINST, AVOID OR OTHERWISE PREPARE FOR ANY SUCH EVENTS.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THESE TERMS AND CONDITIONS. YOU ACKNOWLEDGE THAT THE FORGOING DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATIONS AND EXCLUSIONS OF LIABILITY ARE REASONABLE IN THE COMMERCIAL CIRCUMSTANCES CONTEMPLATED HEREIN AND THAT NANOMETRICS HAS RELIED ON SUCH DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS IN ENTERING INTO THESE TERMS AND CONDITIONS.
6. Term: These Terms and Conditions will commence on the earliest date that You indicate Your acceptance or otherwise access or use the Services and will continue until terminated. These Terms and Conditions will terminate without notice or further obligation to You if: (a) You fail to comply with these Terms and Conditions; or (b) the agreement between Nanometrics and the entity for which You are an authorized user of the Services terminates or expires. Upon any such termination of these Terms and Conditions: (i) You are required to immediately cease Your use and access of the Services; and (b) all Sections of these Terms and Conditions shall continue in full force and effect except for the license in Section 2 of these Terms and Conditions.
7. Ownership: All right, title, and interest (including all intellectual property rights) in, to, and under the Services shall remain with Nanometrics and its licensors. Nanometrics and the names and logos of the Services are the intellectual property (including trademarks or registered trademarks) of Nanometrics in certain countries. All other company names and product or service names and logos are trademarks or registered trademarks of their respective owners in certain countries.
8. Data: The data provided by the Services is dependent upon both subjective and objective measurements, mathematical models, and geophysical models with varying levels of assumptions that are typical of empirical and statistical analysis used to derive data products of this nature. Any and all forecasts, projections, or forward-looking statements provided by the Services shall not be relied upon as fact by You, nor relied upon as any representation of future results that may materially vary from such projections and forecasts. Any action taken by You in reliance on the data provided by the Services is strictly at Your risk.
9. Security and Network Outages: Nanometrics does not warrant that operation of the Services will be uninterrupted or error-free. In the event of a network outage that affects the Services, Nanometrics will use commercially reasonable efforts to return the Services to regular functionality within a reasonable time. Nanometrics has implemented and maintains certain measures (the “Security Measures”) which are designed to secure the Services. However, Nanometrics cannot and does not guarantee that the Security Measures will never be defeated or compromised. To the fullest extent permitted by applicable law, You acknowledge and agree that Nanometrics is not responsible or liable for any unauthorized or third party hacking, access, use, alteration, or disclosure of any information located on or in the Services.
10. Indemnification: You agree to defend, indemnify and hold Nanometrics harmless from any damages, losses, penalties, liabilities, costs, claims, allegations, actions, or demands arising out of or in connection with: (1) Your use of the Services; (2) Your breach of these Terms and Conditions or any applicable laws; (3) Your fraud, negligence, or willful misconduct; or (4) any content, information, or data that You upload or introduce to the Services.
11. Export Restrictions: The Services and related information are subject to export and import restrictions. By using the Services, You are representing and warranting that You are not located in, under the control of, nor are a national or resident of any country to which the export of the Services or related information would be prohibited by the laws and/or regulations of Canada and/or the United States of America. You are also representing and warranting that You are not an individual to whom the export of the Services or related information would be prohibited by the laws and/or regulations of Canada and/or the United States of America. You shall comply with the export laws and regulations of Canada and the United States of America that are applicable to the Services and related information and You shall comply with any local laws and regulations in Your jurisdiction that may impact Your right to export, import, or use the Services or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Services shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent use of the Services or related information.
12. Additional Requirements: You acknowledge and agree that the Services are provided via or in connection with other components and platforms not owned by Nanometrics, including Amazon Web Services, and certain application stores such as Apple Inc.’s App Store or the Google Play Store. Your use of the Services may be subject to Your agreement to and compliance with (and You hereby agree to comply with any applicable) additional terms or policies in connection with these platforms and stores.
13. Third-Party Beneficiaries: You are hereby notified that there may be third-party beneficiaries to these Terms and Conditions. To the extent that these Terms and Conditions contain provisions that relate to (i) the use by You of certain components of the Services in which such third parties have an interest, or (ii) services provided by Affiliates, licensors, subcontractors, distributors and/or resellers of Nanometrics; the intellectual property protection and limitation of liability provisions of these Terms and Conditions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by Nanometrics.
14. General: These Terms and Conditions are the entire agreement between You and Nanometrics in respect to the Services, superseding any other agreement or discussions, oral or written, and may not be changed except in accordance with the first paragraph of these Terms and Conditions or otherwise by a written agreement with Nanometrics. These Terms and Conditions shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Services and the Services shall be deemed to be licensed pursuant to these Terms and Conditions unless You have executed a written license agreement with Nanometrics or a distributor or reseller of Nanometrics, in which case the Services shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign or otherwise transfer or subcontract these Terms and Conditions, whether voluntarily, by operation of law, or otherwise without Nanometrics’ prior written consent. Nanometrics may assign these Terms and Conditions at any time without notice. The failure of a party to claim a breach of any term of these Terms and Conditions shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of these Terms and Conditions are held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of these Terms and Conditions and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Ontario, and the federal laws of Canada applicable therein. No choice or conflict of laws or rules of any jurisdiction shall apply to these Terms and Conditions. You shall only be entitled to bring any action or proceeding arising out of or relating to these Terms and Conditions, the Services or any other services provided in respect to the Services in a court in Ottawa, Ontario, Canada, and You consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that You may have or that may hereafter arise to contest such jurisdiction of such courts for any action or proceeding brought by You. You hereby waive any right You may have to request a jury trial with respect to any action brought by You in connection with these Terms and Conditions, the Services or any other services provided in respect to the Services. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms and Conditions is expressly excluded. The Uniform Computer Information Act does not apply to these Terms and Conditions.