Terms of Use

Please read the following terms and conditions of use (“Terms of Use”) governing your use of the online interfaces and properties (e.g., websites, services, features, content or applications) owned, offered and/or controlled by Atomos Ltd, ACN 139 730 500, an Australian Company, (“Atomos”, “Company”, “we”, “us” or “our”), including, without limitation, the cloud.atomos.com website (together with any subdomains, applications, Subscriptions (as defined herein), Subscription Products (as defined herein) and other products or services offered by Company, the “Site”).

Application

These Terms of Use apply to any person or entity who utilizes the Site or the Content (as defined herein) in any way. Any person or entity who utilizes the Site or the Content in any way shall be collectively referred to herein as “user,” “you,” “your,” or “yours.”
Your compliance with these Terms of Use is a condition to your use of the Site. If you do not agree to be bound by the Terms of Use, promptly exit the Site. Please also consult our Privacy Policy, located at https://www.atomos.com/privacy-policy, for a description of our privacy practices and policies.

Ownership of The Site

All pages within the Site and any material made available for download are the property of Company, or its licensors or suppliers, as applicable. The Site is protected by Australian and international copyright and trademark laws. The contents of the Site, including, without limitation the files, information, documents, text, photographs, images, audio, video, and any other materials accessed through or made available for use or download through the Site (collectively, “Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by Company. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, Content or other proprietary information (including; images, text, page layout, or form) of Company without our express written consent.

Use and Access to Site; Security and Restrictions; Passwords

The Site is not available to persons under the age of 13. If you are between the ages of 13 and the older of 18 and the age of legal majority in place of domicile, you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SITE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE.
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for you or logging onto a server or an account which you are not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law. You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site. Violations of these Terms of Use or of system or network security may result in civil or criminal liability. Company will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site. We also reserve the right to modify, change or discontinue any aspect or feature of the Site, including, without limitation, requirements for use.

You agree to defend, indemnify and hold Company harmless from and against all claims, damages and expenses (including reasonable attorney’s fees) against or incurred by Company arising out of your breach of these Terms of Use or violation of applicable law, by your use or access of the Site.

User Accounts; Protected Areas

Portions of the Site or services offered on the Site (such as the purchase of products or services offered on the Site) may require you to create a user account and/or user ID and/or password. In the event access to the Site or a portion thereof is limited or requires a user account and/or user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user account and/or ID and password as provided to you by Company. You represent that all information you submit in connection with the creation of a user account is true and correct and that you are authorized to submit such information. You agree to, from time to time as necessary, update any information associated with your user account or user ID (including, without limitation, your name, address, phone number, payment information (including payment information associated with Subscriptions) and email address) so that it remains current, accurate and correct at all times. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user account and/or user ID.

Your user account and user ID are non-transferrable. You cannot sell, combine, or otherwise share it with any other person. Any violation of these Terms of Use, including, without limitation, failure to maintain updated and correct information about your user account may, in the discretion of Company, cause your user account to fall out of good standing and we may cancel your user account in our sole discretion. Upon cancellation or termination of your user account, the provisions of these Terms of Use that are by their nature intended to survive termination (e.g., any disclaimers, all limitations of liability and all indemnities) shall survive.

You agree to defend, indemnify and hold Company harmless from and against all claims, damages and expenses (including reasonable attorney’s fees) against or incurred by Company arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Site, or access by anyone accessing the Site using your user account, user ID and password.

We reserve the right to terminate or restrict your user account and/or user ID, or otherwise revoke your access to the Site or services or products provided by Company, at any time for any or no reason, at our sole discretion.

Right to Deny Access

We reserve the right to deny use of, or access to, the Site and/or all or any portion of the Content to you for any or no reason. We have the right to suspend or terminate any user account and/or user ID at any time for any or no reason. You agree that we will not be liable to you or to any third party for, without limitation, any denial of use of the Site or the content or services offered by us, any change of costs for third party services or fees or otherwise or from suspension or termination of your user account and/or user ID.

Accuracy and Integrity of Information

Although Company attempts to ensure the integrity and accurateness of the Site, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Company so that it can be corrected. Content or other information contained on the Site may be changed or updated without notice. Additionally, Company shall have no responsibility or liability for information or Content posted to the Site from any non-Company affiliated third party.

Free Services and Products; Paid Subscriptions

The Company may provide certain of the services offered on the Site for no charge. Company reserves the right to begin charging for any free services offered on the Site at any time.

The Company also provides certain products and services pursuant to paid subscription services (such products and services, “Subscription Products,” and such subscriptions “Subscriptions”). Any Subscriptions you enter into and/or Subscription Products you subscribe for or otherwise purchase shall be entered into or purchased pursuant to the Company’s Terms of Sale and License Agreement (the “TOS Agreement”), and shall be subject to the TOS Agreement in all respects. You will enter into the TOS Agreement with the Company at the time you purchase a Subscription or Subscription Product. Your agreement to the TOS Agreement is a condition to your use of any Subscription or Subscription Product, and if you do not enter into the TOS Agreement with the Company with respect to a Subscription or Subscription Product, you are not entitled to use such Subscription or Subscription Product. The TOS Agreement is incorporated into these Terms of Use by reference.

Export Policy and Restrictions

If you are resident of the United States of America, you acknowledge that the products and Content which are sold or licensed on the Site, which may include Subscriptions, Subscription Products, technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are used and/or received. By purchasing, downloading or using technology or software from the Site, you agree to abide by all applicable laws, rules and regulations – including, but not limited to, the Export Administration Act and the Arms Export Control Act (together with any and all rules and regulations promulgated thereunder, the “Export Laws”) – and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of any applicable law. By purchasing any products, you agree that you will not use any products in violation of, or provide products to any person who is forbidden from receiving the product under, the Export Laws or any economic sanctions maintained by the U.S. Department of Treasury or other government agency, U.S. antiboycott regulations, or U.S. economic sanctions, including the export and anti-boycott restrictions found in the Export Laws or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless Company from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision, the Export Laws and/or other applicable export control, anti-boycott, or economic sanctions laws and regulations.

Links to Other Sites

The Site may include links or allow access to third party websites. Company makes no representations whatsoever about any other website that you may access through the Site (each, a “Third Party Site”). When you access a Third Party Site, please understand that it is independent from Company, and that Company has no control over the content on such Third Party Site (“Third Party Content”). In addition, a link to a Third Party Site does not mean that Company endorses or accepts any responsibility for the Third Party Content on the Third Party Site or the use of the Third Party Content or the Third Party Site.

It is your responsibility to take precautions to ensure that anything you select for your use or download, whether from the Site or a Third Party Site, is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. Company assumes no responsibility, and is not liable, for any transmission or material, or any viral infection of your computer equipment or software, or any other types of damage related to your access, use of browsing of Third Party Sites or Third Party Content. If you decide to access a Third Party Site, you do this entirely at your own risk and you should review the terms of use and privacy policy governing the use of such Third Party Sites.

User Generated Content, Reviews, Feedback and other Postings to the Site

If you submit, stream, broadcast, upload or post any comments, ideas, suggestions, information, files, videos, images or other materials to us or our Site (“Company User Generated Content”), you agree not to provide any Company User Generated Content that (1) is defamatory, abusive, libellous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component.

If you submit, stream, broadcast, upload or post any comments, ideas, suggestions, information, files, videos or other materials to any Third Party Site used to communicate with Atomos (e.g., Twitch, Facebook, YouTube, Mixer, Discord) (“Third Party User Generated Content,” and together with the Company User Generated Content, “User Generated Content”), you agree that you will only post, publish or broadcast such Third Party User Generated Content in accordance with (i) all applicable laws, rules and regulations; and (ii) the terms of service, terms of use or similar terms applicable to your use of the Third Party Site (“Third Party Terms”).  Company has not reviewed, endorsed or accepted any Third Party Terms.

You agree not to contact other users of the Site through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Company that you have the legal right and authorization to provide all User Generated Content to Company (or to any Third Party, as applicable) for the purposes and Company’s use as set forth herein. Company shall have a worldwide, royalty-free, irrevocable, sublicensable, transferable right and license to use the User Generated Content however Company desires, including, without limitation, to use the User Generated Content to promote Company, the Site and Company’s services, and to reproduce, display, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such User Generated Content and/or incorporate such User Generated Content into any form, medium or technology throughout the world. Company is and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay to you any compensation for any User Generated Content; or (3) to respond to any User Generated Content.

Company does not regularly review posted User Generated Content, but does reserve the right (but is under no obligation) to monitor and edit or remove any User Generated Content submitted to the Site. Company does not endorse any User Generated Content, or any opinion, belief, recommendation or belief expressed therein. You grant Company the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make, use, post and/or share. Company and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third party.

You agree to defend, indemnify and hold Company harmless from and against all claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of any User Generated Content that you post or allow to be posted to the Site, or if the User Generated Content is Third Party User Generated Content, that you post or allow to be posted to any Third Party Site. Additionally, Company has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Generated Content and other communications maintained by the Site.

Disclaimer of Warranties

COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THE SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE- RELATED SERVICE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF the SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. COMPANY DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY. WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY COMPANY ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

Limitation of Liability Regarding Use of Site

COMPANY IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF COMPANY TO YOU WITH RESPECT TO YOUR USE OF the SITE IS $500 (FIVE HUNDRED DOLLARS).

COMPANY IS NOT RESPONSIBLE FOR ANY USER’S VIOLATION OF ANY LAWS, RULES OR REGULATIONS.

User and Third Party Disputes

If there is a dispute between users of the Site, or between users and any third party, you agree that we are under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Company, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or Company or the Site (each, a “Third Party Dispute”). You agree to defend, indemnify and hold Company harmless from and against all claims, damages and expenses (including reasonable attorney’s fees) against or incurred by Company arising out of any Third Party Dispute.

If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

Interpretation and Disputes

We will try to work in good faith to resolve any issue you have with Site if you bring such issue to us in a timely fashion. However, there may be cases where we may not be able to resolve an issue to your satisfaction.

These Terms of Use are governed by the laws of Australia and the State of Victoria, without regard to any conflict of laws provisions. Any case, controversy, suit, action or proceeding arising out of, in connection with, or related to these Terms of Use (including any dispute related to the Site) shall be brought in state and federal courts located in Victoria, and you hereby waive any objection to the exclusive jurisdiction of such courts. You hereby (a) consent and submit to exclusive personal jurisdiction and venue of such courts; and (b) YOU AND COMPANY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY.

YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Organizational Users

If you’re using the Site or any Company products or services on behalf of an organization or entity, you affirm that you have the right to act on behalf of that organization or entity, and that these Terms of Use apply to the organization or entity (and all references to “you” and similar terms refer to that organization or entity). The organization or entity will hold harmless and indemnify Company (and its affiliates, officers, agents, and employees) from any claim, suit or action arising from or related to the use of the Site or violation of these Terms of Use, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.

General Indemnity

In addition to any specific indemnities set forth throughout these Terms of Use, you agree to defend, indemnify and hold Company harmless from and against all claims, damages and expenses (including reasonable attorney’s fees) against or incurred by Company arising out of your use or access of the Site and/or any Subscriptions.

General; Revisions to Terms of Use

Company reserves the right, in its sole discretion, to terminate your access to all or part of the Site, with or without cause, and with or without notice.

In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect.

No waiver by either you or Company of any breach or default or failure to exercise any right allowed under these Terms of Use is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Terms of Use. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of our Terms of Use invalid, such invalidity shall not affect the enforceability of any other provisions contained in these Terms of Use, and the remaining portions of our Terms of Use shall continue in full force and effect.

These Terms of Use and the Privacy Policy constitute the entire agreement between Company and you pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether oral or written, between you and Company with respect to such subject matter.

In its sole discretion, Company may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within the Site.

If you have any questions, please contact Company via email at: [email protected], or via mail at: Level 6, 700 Swanston Street, Carlton, VIC, 3053 Australia.