Terms of Service

IMPORTANT – READ CAREFULLY:

THE SERVICES ARE OFFERED BY SIGMA AUTOMATE, INC. (TOGETHER WITH ITS SUCCESSORS AND PERMITTED ASSIGNS, “SIGMA”), AND ACCESS TO AND USE OF THE SERVICES ARE GOVERNED BY THESE TERMS OF SERVICE (THE “TERMS”). THE SERVICES CONSIST OF THE SIGMA HOSTED SOFTWARE OFFERINGS, FEATURES AND FUNCTIONALITY IDENTIFIED IN AN ORDER FORM OR OTHER COMMERCIAL AGREEMENT EXECUTED BY YOU AND SIGMA (AN “ORDER FORM”) (THE “SERVICES”). IN ORDER TO USE THE SERVICES, YOU MUST BE A CUSTOMER IN GOOD STANDING UNDER AN ORDER FORM AND MUST REMAIN SO FOR THE DURATION OF THE SUBSCRIPTION. YOU MUST ALSO AGREE TO THESE TERMS BY CLICKING “I AGREE” OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS. IF YOU ACCEPT THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY, AND “YOU” AND “CUSTOMER” REFER TO THAT ENTITY. SUBJECT TO YOUR COMPLIANCE WITH THESE TERMS AND PAYMENT OF ALL APPLICABLE FEES, SIGMA GRANTS YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, NON-SUBLICENSABLE, LIMITED RIGHT DURING THE SUBSCRIPTION TERM FOR YOUR AUTHORIZED USERS TO ACCESS AND USE THE SERVICES SOLELY FOR YOUR INTERNAL BUSINESS PURPOSES.

In the event of a conflict between these Terms and an Order Form, the Order Form will control solely with respect to the Services and subject matter described in it, followed by these Terms and then the Documentation. Capitalized terms used but not defined have the following meanings: “Authorized Users” means your employees and contractors whom you authorize to use the Services under your account; “Customer Data” means all data, content and information submitted by or on behalf of you or your Authorized Users to the Services; and “Subscription” or “Subscription Term” means the subscription period stated in the applicable Order Form, including any renewals.  ​

Services

1.1. Description

The Services may be a separate, stand-alone service accessible apart from the generally available service to which you subscribe, or it may be a feature or functionality of that service. Further description of the Service is provided at the time you enter the subscription, or when a Service is added to the Service, and may be updated from time to time by Sigma as the Service progresses (the “Documentation”).

1.2. Support and Pre-Release Features

Sigma will provide standard technical support for the Services as described in the Documentation or the applicable Order Form. Sigma may, from time to time, make available features designated as “beta,” “preview,” or “pre-release” (“Pre-Release Features”). Pre-Release Features are optional, are provided “AS IS” and “AS AVAILABLE,” may contain bugs or errors, are excluded from the Service Level Commitment in Section 12, and may be discontinued at any time. Sigma recommends that you back up your data before using any Pre-Release Feature.

1.3. Feedback

You agree to receive service-related communications from Sigma, such as security, billing and account notices, which are necessary to provide the Services. You may opt out of marketing communications at any time without affecting your access to the Services. You may, but are not required to, provide suggestions, comments or other feedback regarding the Services (“Feedback”). You hereby assign to Sigma all right, title and interest in and to any Feedback, and, to the extent any such assignment is ineffective, you grant Sigma a perpetual, irrevocable, royalty-free, worldwide, sublicensable license to use and incorporate Feedback into any Sigma product or service for any purpose. Sigma will not publish Feedback in a way that is attributable to you without your consent.

1.4. Limitations on Use

Limitations specific to any Service, including usage limits, may be contained in the Documentation or the applicable Order Form. You may use the Services pursuant to these Terms only during the Subscription Term. Sigma may modify the Services from time to time, provided that Sigma will give you at least thirty (30) days’ prior notice of any modification that materially and adversely reduces the functionality of the Services. You are responsible for all activity under your account and for your Authorized Users’ compliance with these Terms.

2.1. Accounts

Access to the Services is available to customers that have executed an Order Form. You must provide accurate account information, keep login credentials confidential, and promptly notify Sigma of any unauthorized access to your account.

2.2. Acceptable Use Policy

Your use of the Services is subject to Sigma’s Acceptable Use Policy, located at https://sigma-automate.com/acceptable-use-policy, which is incorporated into these Terms by reference. Without limiting the Acceptable Use Policy, you will not: (a) use the Services in violation of law or to store or transmit infringing, unlawful or malicious content; (b) interfere with or disrupt the integrity, security or performance of the Services; (c) attempt to gain unauthorized access to the Services or related systems; (d) exceed any usage limits; or (e) access the Services to build a competing product or service or for competitive benchmarking.

2.3. No Reverse Engineering

Except to the extent expressly permitted by applicable law notwithstanding this restriction, you may not modify, distribute, sell, resell, rent, lease, sublicense, frame, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to derive the source code of the Services or any other Sigma technology.

3. Copyright

Sigma respects the intellectual property rights of others and responds to notices of alleged infringement in accordance with the Digital Millennium Copyright Act, 17 U.S.C. § 512. If you believe the Services have been used in a way that constitutes copyright infringement, please send a written notice containing the information required by 17 U.S.C. § 512(c)(3) to Sigma’s designated agent at copyright@sigma-automate.com or 2103 Chatou Place NW, Kennesaw, GA 30152. Sigma reserves the right to delete or disable allegedly infringing content and to terminate, in appropriate circumstances, the accounts of users who are repeat infringers. Sigma also reserves the right to forward the information in the copyright infringement notice to the user who allegedly provided the infringing content, who may submit a counter-notification as provided by 17 U.S.C. § 512(g).

4. Intellectual Property

You agree that Sigma and its licensors own all right, title and interest in and to the Services, the Documentation and all related technology, including all intellectual property rights, and except for the limited rights expressly granted herein, no other rights or licenses are granted, whether by implication, estoppel or otherwise. Nothing herein gives you a right to use any of Sigma’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features. As between the parties, you own all Customer Data. You grant Sigma a non-exclusive, worldwide, royalty-free license during the Subscription Term to host, copy, process and display Customer Data solely as necessary to provide, secure and support the Services. Sigma may collect and use aggregated and de-identified data derived from use of the Services to operate and improve its products, provided such data does not identify you or any individual.

5. Term, Suspension and Termination

These Terms remain in effect for the Subscription Term. Sigma may suspend your access to the Services immediately if (a) you fail to pay undisputed fees when due, (b) your use of the Services poses a security risk or violates Section 2, or (c) suspension is required by law, and Sigma will use reasonable efforts to notify you and restore access promptly once the issue is resolved. Either party may terminate these Terms upon written notice if the other party materially breaches them and fails to cure the breach within thirty (30) days after receiving notice. Sigma may discontinue any Service upon at least ninety (90) days’ prior notice, in which case Sigma will refund any prepaid fees for the unused portion of the Subscription Term. Upon expiration or termination, your right to use the Services ends, and Sigma will make Customer Data available for export for thirty (30) days, after which Sigma may delete it. Sections 1.3, 4, 6, 7, 8, 9, 11 and any accrued payment obligations survive expiration or termination.

6. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS (INCLUDING SECTION 12) OR AN ORDER FORM, THE SERVICES ARE PROVIDED BY SIGMA ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SIGMA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SIGMA MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SIGMA OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

7. LIMITATION ON LIABILITY

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF DATA, INCOME, OPPORTUNITY OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATED TO THESE TERMS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EXCLUDED CLAIMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY YOU TO SIGMA FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. “EXCLUDED CLAIMS” MEANS (A) YOUR OBLIGATIONS TO PAY FEES, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS, (C) YOUR BREACH OF SECTION 2, (D) A PARTY’S BREACH OF SECTION 9, AND (E) A PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

8. Indemnification

You will defend, indemnify and hold harmless Sigma, its affiliates and subsidiaries, and their respective officers, directors, agents and employees (collectively, “Sigma Indemnified Parties”) from and against any third-party claim, and all resulting losses, damages, judgments, settlements, costs and reasonable attorneys’ fees, arising from or related to (i) your or your Authorized Users’ breach of these Terms, (ii) your or your Authorized Users’ use of the Services in violation of these Terms, (iii) your violation of applicable laws, rules or regulations in connection with the Services, or (iv) Customer Data.

Sigma will defend, indemnify and hold you harmless from and against any third-party claim alleging that the Services, as provided by Sigma and used in accordance with these Terms, infringe or misappropriate such third party’s United States patent, copyright, trademark or trade secret, and all resulting damages, judgments, settlements and reasonable attorneys’ fees. Sigma will have no obligation for any claim to the extent arising from (i) Customer Data, (ii) modifications to the Services not made by Sigma, (iii) combination of the Services with products, services or data not provided by Sigma, (iv) Pre-Release Features, or (v) your breach of these Terms. If the Services become, or in Sigma’s opinion are likely to become, the subject of an infringement claim, Sigma may, at its option, procure the right for you to continue using the Services, modify the Services to be non-infringing, or terminate the affected Services and refund any prepaid fees for the unused portion of the Subscription Term. This paragraph states Sigma’s sole liability and your exclusive remedy for infringement claims. The indemnified party will (a) give the indemnifying party prompt written notice of the claim, (b) give the indemnifying party sole control of the defense and settlement, provided that no settlement may impose any non-monetary obligation on the indemnified party without its consent, and (c) provide reasonable cooperation at the indemnifying party’s expense.

9. Confidential Information

“Confidential Information” means all non-public information disclosed by one party (“Discloser”) to the other party (“Recipient”) that is designated as confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure. Sigma’s Confidential Information includes the Services, the Documentation, pricing and any non-public product plans; your Confidential Information includes Customer Data. Confidential Information does not include information that (a) is or becomes publicly available without breach of these Terms, (b) was known to Recipient before disclosure without restriction, (c) is received from a third party without breach of any obligation owed to Discloser, or (d) is independently developed by Recipient without use of Discloser’s Confidential Information. Recipient will use Discloser’s Confidential Information only to exercise its rights and perform its obligations under these Terms, will not disclose it except to its employees, contractors and advisors who need to know it and are bound by confidentiality obligations at least as protective as these, and will protect it using at least reasonable care. Recipient may disclose Confidential Information to the extent required by law, provided that Recipient gives Discloser prompt prior notice (where legally permitted) and reasonable assistance in seeking a protective order. These obligations continue during the Subscription Term and for three (3) years thereafter, and indefinitely for trade secrets and Customer Data.

Sigma will maintain commercially reasonable administrative, physical and technical safeguards designed to protect the security and confidentiality of Customer Data, and will process any personal data contained in Customer Data in accordance with Sigma’s Data Processing Addendum, located at https://sigma-automate.com/data-processing-addendum, which is incorporated by reference. If you will submit protected health information to the Services, the parties must first execute a Business Associate Agreement.

10. Changes to the Terms

Sigma may update these Terms from time to time. Sigma will notify you of material changes by email or through the Services at least thirty (30) days before they take effect. Unless otherwise required by law, material changes will apply to you upon the start of your next renewal Subscription Term. If you object to a material change that Sigma requires to take effect earlier, you may terminate the affected Services upon written notice before the change takes effect and receive a refund of prepaid fees for the unused portion of the Subscription Term. Your continued use of the Services after the effective date of an update constitutes acceptance of the updated Terms.

11. Additional Terms

11.1. Compliance with Laws

Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable import and export laws and regulations governing use, transmission and/or communication of content, in connection with their performance, access and/or use of the Services. ​

11.2 International Use

The Service is intended for use only from within the United States. If you choose to access the Services from locations other than the United States, you do so on your own initiative and at your own risk and you are responsible for compliance with all relevant laws and regulations. Sigma does not guarantee that the Services shall be appropriate and/or available for use in any particular location.

12. Service Level Commitment (SLA)

Excluding Scheduled Maintenance, Sigma will use commercially reasonable efforts to make the hosted portion of the Services available 99.8% of the time in each calendar month during the Subscription Term. “Scheduled Maintenance” means maintenance of which Sigma gives at least forty-eight (48) hours’ prior notice and that is performed during off-peak hours, not to exceed eight (8) hours per month. The Services will be deemed “available” so long as Authorized Users are able to log in to the Service interface and access monitoring data. Availability calculations exclude downtime caused by force majeure events, your or your Authorized Users’ acts or omissions, your equipment or third-party connectivity, Pre-Release Features, or suspension under Section 5. If availability falls below 99.8% in any calendar month, you will be entitled, upon request made within thirty (30) days after the end of that month, to a service credit as set forth in the Documentation or the applicable Order Form. If availability falls below 99.8% for two consecutive calendar months, you may terminate the affected Services upon written notice to Sigma given within the calendar month following such two-month period and receive a refund of prepaid fees for the unused portion of the Subscription Term. The remedies in this Section 12 are your sole and exclusive remedies for any failure to meet the availability commitment.

13. Fees and Payment

You will pay all fees specified in the applicable Order Form. Unless otherwise stated in the Order Form, fees are invoiced annually in advance, are due within thirty (30) days of the invoice date, and are non-cancelable and non-refundable except as expressly provided in these Terms. Overdue amounts may accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Fees exclude taxes, and you are responsible for all sales, use, value-added and similar taxes, other than taxes on Sigma’s net income.

14. General

14.1. Governing Law and Venue. These Terms are governed by the laws of the State of Delaware, without regard to its conflict of laws principles. The state and federal courts located in Delaware have exclusive jurisdiction over any dispute arising out of or relating to these Terms, and each party consents to such jurisdiction.

14.2. Assignment. Neither party may assign these Terms without the other party’s prior written consent, except that either party may assign these Terms without consent to a successor in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or business to which these Terms relate. Any attempted assignment in violation of this Section is void.

14.3. Notices. Notices to Sigma must be sent to info@sigma-automate.com. Notices to you will be sent to the email address associated with your account or stated in the Order Form. Notices are effective upon receipt.

14.4. Force Majeure. Neither party will be liable for any delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including natural disasters, acts of government, war, terrorism, labor disputes, internet or utility failures, or cyberattacks not caused by the affected party’s failure to maintain reasonable safeguards.

14.5. Miscellaneous. These Terms, together with each Order Form and all documents incorporated by reference, constitute the entire agreement between the parties regarding their subject matter and supersede all prior agreements and understandings. If any provision is held unenforceable, it will be modified to the minimum extent necessary and the remaining provisions will remain in effect. No waiver is effective unless in writing, and no failure or delay in exercising any right operates as a waiver. The parties are independent contractors. Sigma may identify you as a customer, including by use of your name and logo, unless you notify Sigma otherwise in writing