This Services Agreement describes your rights and responsibilities when interacting with our website and Atomatest (defined below as the “Services”). Please read it carefully. If you are a “Customer” (defined below), this Services Agreement governs your access and use of our Services. If you are an “Authorized User” (defined in Standard Terms), the Atomatest Standard Terms (the “Standard Terms”) govern your access and use of the Services.
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First things First
This Services Agreement (the, “Underlying Agreement”) (or, if applicable, your written agreement with us) together with any applicable order form (“Order Form” defined below) their schedules and exhibits and any other applicable modifications to the original order (“Change Orders” also defined below) collectively form the “Services Agreement.”
This “Services Agreement” forms a part of a binding “Contract” between “Customer” and Stack Moxie Marketing, Inc. (the “Company”).
Your Agreement on Behalf of “Customer”
If you interact with our website and its content, purchase subscription(s), receive an instance of Atomatest, login to and or invite users to that instance, or use or allow use of our website or the instance designated to you after being notified of a change to any part of the Services Agreement or Platform Terms you acknowledge your understanding of the then-current Services Agreement and Platform Terms on behalf of Customer.
Please make sure you have the necessary authority to enter into these agreements on behalf of Customer before proceeding.
Who is “Customer”?
“Customer” is the organization that you represent in agreeing to the Services Agreement and Platform Terms. For example, if you are an employee or authorized agent acting on behalf of an organization, “Customer” is the organization whom you are representing.
The Services Agreement is Additional Terms supplemental to the Platform Terms and with respect to the Services shall govern in the event of a conflict with the Platform Terms.
WHEREAS, Customer utilizes Provider Technology (defined below) in conjunction with its Customer Content and Customer Systems (each defined in Standard Terms) in conducting its sales, advertising, marketing and other business operations;
WHEREAS, Customer desires to engage Company to provide, host, and maintain a web-based platform to perform automation, routing, configuration, integration, and regression testing relating to the Provider Technology and Customer Content and Customer Systems (the “Atomatest Tool”), and provide certain supplementary services as further described herein (collectively, the “Services”);
AND WHEREAS, Company has agreed to provide the Services to Customer subject to the terms and conditions set forth in the Services Agreement.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 “Change Order” means any change to Customer’s original Order Form or most recently executed Change Order which shall amend the Services Agreement and become an additional schedule thereto and may result in additional fees charged to the Customer. Change Order documents may be self-serve online forms, email to Company from authorized Customer representative named in Services Agreement which confirm and authorize changes, or Customer-amended purchase orders.
1.2 “Customer” means a Company client, Partner, or Prospect.
1.3 “Customer Test” means a Test configured by Customer or by Company on behalf of Customer which, for the sake of clarity, may include a Test specific to a Partner and/or Provider Technology.
1.4 “Customer Tile” means a Tile configured by Customer or by Company on behalf of Customer, which may include Customer Tests, Provider Tests, and/or Partner Tests.
1.5 “Order Form” means the ordering documents, which may be self-serve online forms or Customer-issued purchase orders, for Customer purchases from Company that are executed (including by electronic acceptance) hereunder by Customer and Company from time to time. All Order Forms shall be deemed incorporated herein. Without limitation, an Order Form typically includes: (i) the fee for Subscription Offerings and Overage (defined in Standard Terms); (ii) limits on the number of Tests that may be Performed by Authorized Users (each defined in Standard Terms); and (iii) references to Changes Orders, etc., to the extent applicable.
1.6 “Partner” means a third party with whom Company maintains a strategic integration or referral relationship which may provide services to Customers that are complementary to the Services and, if applicable, utilizes the Services itself (e.g., as a Customer, as a supplement to Partner’s services, and/or as a contributor to Company development and configuration of Partner Tiles and Partner Tests).
1.7 “Partner Test” means a Test specific to a Partner or the Partner’s services exclusively or to the Partner’s services in conjunction with the services or technology of other Partners or Providers. Partner Tests are developed and/or configured by Company on behalf of Partner.
1.8 “Partner Tile” means a Tile developed and/or configured by Company on behalf of Partner, specific to the Partner, that includes Partner Tests.
1.9 “Perform,” “Performed,” or “Performance” means to perform, carry out, or otherwise execute through the Atomatest Tool.
1.10 “Prospect” means a company or its employees or agents in process of evaluating Company Services or currently using Company’s Services without a paid subscription; this also includes any Prospect referred to Company by Partner.
1.11 “Provider” means a provider of Provider Technology.
1.12 “Provider Technology” means Customer-associated Third-Party Materials and Services (defined in Standard Terms) which may be configured to interoperate with the Atomatest tool.
1.13 “Provider Test” means a Test specific to a Provider or Provider Technology exclusively or to the Provider Technology in conjunction with the services or technology of other Partners or Providers. Provider Tests are developed and/or configured by Company on behalf of Customer or Partner.
1.14 “Provider Tile” means a Tile developed and/or configured by Company on behalf of Customer or Partner specific to Provider Technology, that includes Provider Tests.
1.15 “Test” means Customer Test, Partner Test, or Provider Test, individually or collectively.
1.16 “Tile” means an icon on the Services used to access a Test or a group or category of Tests.
Subject to the terms of the Services Agreement, Company shall provide, host and maintain the Atomatest Tool at the URL app.atomatest.com. The Atomatest Tool will enable Customer and Customer’s Authorized Users (as defined in Standard Terms) to Perform various Tests, including automation, routing, configuration, integration, and regression tests relating to the Provider Technology and Customer Content and Customer Systems, as further described in Section 2 below. Customer accepts that Company may use the services of third-party providers to provide certain of the Services to Customer, subject to Section 1.4.
2.1 Company Use of Third-Party Applications. Company reserves the right to use Third Party Materials and Services. Third Party Materials and Services (defined in Standard Terms), may be subject to additional terms, conditions and limitations, which may be contained in one or more Exhibits attached hereto (“Third-Party Terms”), and Customer shall comply therewith. A breach of Third-Party Terms by Customer shall be deemed a breach of the Services Agreement. For sake of clarity, Partner Tiles and Partner Tests shall be deemed Third Party Materials and Services.
2.2 Authorized Users. Customer represents, warrants and agrees that it shall obtain all necessary rights, consents and authority from Authorized Users for Customer to meet its obligations set forth in the Services Agreement and to grant Company the rights and provide Company with the consents set forth in the Services Agreement, in order for Company to perform the Services hereunder without violating applicable Law (defined in Standard Terms) or individual users’ rights, including without limitation, from any and all Authorized Users that access or use the Services.
3. ATOMATEST TOOL FEATURES
3.1 Standard Offering. Except as otherwise set forth in an Order Form or Change Order, the following features shall be enabled as the standard offering (“Standard Offering”), available to Customer without purchasing a paid subscription:
(i) Sponsored Testing. Customer and Authorized Users may Perform Tests utilizing Company and/or Partner sponsored content that has been specifically identified for use at no charge. For sake of clarity, a Customer that has not selected a Subscription Offering and provided a valid form of payment, the Standard Offering only allows Customer and Authorized Users to utilize sponsored Tiles and Perform these sponsored Tests.
(ii) Access Credentials. Customer will be provided with Access Credentials (defined in Standard Terms) which have accepted the end user terms/license agreement. The features and capabilities of Authorized User Accounts are subject to change at any time, in Company’s sole discretion.
3.2 Subscription Offering. Subject to an Order Form or Change order whereby Customer accepts additional terms, Customer may select one or more paid subscription offerings as specified in an Order Form or Change Order (“Subscription Offering”). The following features shall be enabled as part of the Subscription Offering, subject to any terms and conditions set forth in an Order Form or Change Order:
(i) Standard Offering Features. All features provided in the Standard Offering as set forth in Section 3.1 of the Underlying Agreement and as modified and/or supplemented in an Order Form or Change Order;
(ii) Configuration of Tests and Tiles. Subject to any limits set forth in an Order Form or Change Order, Customer and Authorized Users may configure and save Tests and Tiles for Performance of the same at a later time.
(iii) Performance of Tests. The ability for Customer and Authorized Users to Perform Customer Tests and Perform any published, commercially available Partner and/or Provider Tests.
(iv) Monitoring and Oversight. The ability for Customer and Authorized Users which have accepted the end user terms/license agreement, to obtain status of Tests (e.g. completed) and results of Tests (e.g. pass or failure) for Tests Performed via Atomatest Tool interface, email, or other means subject to change at any time, in Company’s sole discretion.
3.3 Modification of Offerings. Notwithstanding anything to the contrary herein or in a Change Order, Company may add, remove, and/or modify one or more Standard Offering or Subscription Offering at any time, in its sole discretion.
3.4 Additional Features/Services. Company reserves the right to charge Customer for additional features and/or services offered and such new features or services may be subject to additional terms and conditions, which shall be specified therein, attached as an exhibit to the Underlying Agreement (“Additional Terms”), or referenced on www.stackmoxie.com and which shall be incorporated herein.
3.5 Service Commitment and Support. Company shall provide Customer with customer service and technical support via email, and as otherwise offered by Company from time-to-time, during Normal Business Hours, subject to the Platform Terms. Company will use commercially reasonable efforts to make the Services reasonably available, except for: (i) planned downtime; (ii) unavailability attributable to Customer, Personnel (defined in Standard Terms), Authorized Users, Customer-associated Third Party Materials and Services, Third Party Materials and Services or other third party acts or omissions; or (iii) any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, Force Majeure Events (defined in Standard Terms). Updates to the software underlying the Services will be released as and when available and will be subject to the Services Agreement.
4. ADDITIONAL TERMS AND PRECEDENCE OF TERMS.
The Atomatest Standard Terms, and other Exhibits, as applicable, are incorporated herein by reference. In the event of any inconsistency between the statements made in the body of this Underlying Agreement, the related Exhibits, and any other documents incorporated herein by reference, or the applicability of the Platform Terms, the following order of precedence governs: (a) first, the Underlying Agreement, excluding its Schedules and Exhibits; (b) second, the Schedules and Exhibits to the Underlying Agreement as of the Effective Date; (c) third, Order Forms and Change Orders, any other documents incorporated herein by reference; and (d) fourth, the Platform Terms.
Unless otherwise expressly provided in this Agreement, all notices and other communications required or permitted under this Agreement must be in writing and shall be: (a) delivered personally, (b) sent by confirmed telex, fax, or e-mail (c) sent by commercial overnight courier with written verification of receipt, or (d) sent by registered or certified mail, return receipt requested, postage paid. Unless a substitute address is communicated to the other party in writing, any such communications must be sent to Customer’s address as set forth in this Agreement and to Company’s address set forth in this Agreement. Notices will be deemed effective as of the date such notice was received or notice confirmation was sent.
6. ENTIRE AGREEMENT.
The Services Agreement (i.e., the Underlying Agreement, together with the Order Form, any applicable Change Orders and any other documents incorporated herein by reference and all related Schedules and Exhibits), constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Services Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
Last Updated June 11, 2019