Customer Agreement

Customer Agreement

This Customer Agreement (the “Agreement”) is between you and ATLASense, Inc., a Delaware corporation (“Atlas” or “we” or “us”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then everywhere else in this Agreement the words “you” and “your” are in reference to your company, you are binding your company to this Agreement and you have the requisite power and authorization to do so. Atlas may modify this Agreement from time to time, subject to the terms in Section 20 (Changes to this Agreement) below.

 

By clicking on the “I agree” (or similar button) that is presented to you, or by such other means of acceptance or acknowledgement presented to you, at the time of your signing up (such process, “Enrollment”) for use of Atlas’ web-based information platform for data integration and organization (“AtlaSense”), you indicate your agreement to be bound by this Agreement.

 

1.     Scope of the Agreement. This Agreement governs your use of AtlaSense under the terms selected during your initial Enrollment (along with any subsequent update thereof). This Agreement also includes our afta, the terms of use selected during your Enrollment, and any other policies, terms and attachments that may be referenced herein. AtlaSense consists of: (a) hosted or cloud-based solutions provided by AtlaSense (“Hosted Services”), which is specifically covered by Section 6 (Hosted Services Terms) and (b) downloadable software (“Software”) necessary for use of AtlaSense, which is specifically covered by Section 7 (Software Terms). AtlaSense and its permitted uses are further described in Atlas’ standard documentation (“Documentation”) regarding AtlaSense that Atlas may from time to time produce, maintain and make available to its users.

 

2.     Enrollment. The authorized scope of use of AtlaSense (the “Scope of Use”) shall be established during Enrollment, which Scope of Use may include any of the following: (a) number and type of Authorized Users (as defined below), (b) the number of licenses, copies or instances of Software required, (c) storage or capacity for Hosted Services, (d) the Period of Use (as defined below) and any applicable renewal term thereof, and (d) any other terms and conditions as agreed upon between you and Atlas as part of the Enrollment. The Scope of Use may be updated from time to time upon the agreement of you and Atlas. This Agreement applies whether your Enrollment is directly with Atlas or through an authorized reseller (“Reseller”). While Atlas does not currently anticipate providing AtlaSense through any Resellers, any Enrollment through a Reseller shall be conditioned upon your Scope of Use being as stated in the Enrollment placed by Reseller for you, Reseller taking responsibility for the accuracy of any such Enrollment on your behalf and your being bound to this Agreement. Resellers shall not be authorized to make any promises or commitments on Atlas’ behalf, and we shall not bound by any obligations to any user of AtlaSense through a Reseller other than what we specify in this Agreement.

 

3.     Account Registration. You and your Authorized Users may need to register for an Atlas account in connection with your Enrollment. Any registration information provided to us must be accurate, current and complete. Such information must be kept up to date so that we may send notices, statements and other information to you and your Authorized Users by email or through such account. You are responsible for all actions taken through such accounts (including actions taken by Authorized Users).

 

4.     Payment Terms. You agree to make all payments required under this Agreement and pay for all charges for use of AtlaSense (“Charges”) in accordance with this Section 4 (Payment Terms).

 

4.1.  Charges. Charges are based upon the Scope of Use (number of Authorized Users, space required for Hosted Services, etc.) and Atlas’ then-in-effect rates (“Current Rates”) for use of AtlaSense (which may be viewed at Current Subscription Fees).  In addition, the time period for use of AtlaSense you might commit to during Enrollment (“Period of Use”), whether on a month-to-month basis, quarterly, full year or as otherwise specified during Enrollment, may impact the Charges based on Current Rates. The entire amount of the Charges for a Period of Use shall be payable in advance prior to the beginning of such Period of Use. In making such advance payment of Charges, you acknowledge that you are not relying on future availability of AtlaSense beyond the Period of Use or any upgrades or feature enhancements thereto. Any additional Charges based on any updates to your Scope of Use shall be payable prior to any such updates taking effect. As part of the Enrollment valid credit card account information (or other bank account information) from you, as well as pre-authorization of us to draw from such accounts the amount of Charges, is required and you agree that we may bill and draw on such account for all Charges, including for Charges for renewals, Additional Users, additional storage, or enhanced Support and Maintenance, as well as any taxes or duties payable in accordance with Section 4.3 (Taxes). Current Rates are subject to change by Atlas at any time.  All Charges will be payable in U.S. dollars.

 

4.2.  Refunds. In the event of any early termination by you of your use of AtlaSense or of any diminishment in the Scope of Use agreed upon by you and Atlas, you may be entitled to a refund for any prepaid Charges covering the remaining Period of Use or as a result of the reduced Scope of Use, provided that in the case of early termination of a month-to-month Period of Use, there shall be no refund for the remainder of the month (but no Charge for the upcoming month following the effective date of termination). Otherwise, the amount of all paid Charges are non-refundable, non-cancelable and non-creditable.

 

4.3.  Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of your use of AtlaSense in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Atlas, you are liable for, and must pay to Atlas, the amount of such taxes or duties in addition to any Charges owed under this Agreement, which Atlas may satisfy from credit card or bank accounts provided by you to cover Charges. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Atlas any such exemption information, and Atlas will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

 

5.     Authorized Users.

 

5.1.  Direct Authorized Users.  Only the specific individuals for whom you have paid the required Charges, as applicable, and whom you designate (“Authorized Users”) may access and use AtlaSense. Where different types of Authorized Users may be designated, pricing and functionality may vary according to the type of Authorized User, as further detailed in the Current Rates. Authorized Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may increase the number of Authorized Users permitted to use AtlaSense provided that you pay the applicable Charge for any increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All uses of AtlaSense by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.

 

5.2.  Attribution. You may be required to include the following attribution to Atlas on all user interfaces with AtlaSense in the following format: “Powered by Atlas,” or “Powered by AtlaSense”, which must in every case include a hyperlink to http://www.atlasense.com

 

6.     Hosted Services Terms.

 

6.1.  Access to Hosted Services. Subject to the terms and conditions of this Agreement, Atlas grants you a non-exclusive right to access and use the Hosted Services during the applicable Period of Use, as stipulated in the Enrollment. You acknowledge that our Hosted Services are an on-line set of services, provided on either a subscription or on-demand basis, and that we may make changes to the Hosted Services from time to time.

 

6.2.  Subscription Terms and Renewals. Hosted Services are provided on either a subscription basis or an on-demand basis for the Period of Use as specified in your Enrollment. Except as otherwise specified in your Enrollment, your access and use of the Hosted Services will automatically renew for periods equal to your initial Period of Use and you will be charged at the then-Current Rates, payable as stipulated in Section 4 (Payment Terms), unless you cancel your account. If you cancel, your access and useage rights will terminate at the end of the month when cancellation occurs. Users on a month-to-month Period of Use will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

 

6.3.  Credentials. You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Atlas of any unauthorized use of which you become aware.

 

6.4.  Your Data; Non-Disclosure of Your Data. “Your Data” means any data, content, code, video, files, images, information or other materials of any type that you upload, submit (including through permitted access by the Hosted Services) or otherwise transmit to or through the Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Atlas. Subject to the terms of this Agreement, you hereby grant to Atlas a non-exclusive, worldwide, royalty-free right: (a) to collect, copy, store, use, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the Hosted Services to you and not to sell, exploit, commercialize or otherwise use for the benefit of anyone else but you and (b) solely in connection with that part of the Hosted Services that enable you to share Your Data or interact with other people, to distribute and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Services. Atlas may also access your account in order to respond to your support requests.  Please also see Section 13 (Confidentiality) regarding non-disclosure and maintenance of confidentiality of Your Data, as well as our Privacy Policy.

 

6.5.  Security. Atlas implements customary security procedures to help protect Your Data from security attacks. However, you understand that the Hosted Services necessarily involve transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.

 

6.6.  Storage Limits. There may be storage limits associated with the Hosted Services. These limits may be established in connection with your Enrollment. Atlas reserves the right to charge for additional storage or overage fees. We may impose new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.

 

6.7.  Responsibility for Your Data.

 

6.7.1.     General. You must ensure that your use of AtlaSense and all Your Data is at all times compliant with Section 6.7.10 (Acceptable Use Policy) and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all Your Data to Atlas and to grant the rights granted to Atlas in this Agreement and (b) Your Data and its transfer to and use by Atlas as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 6.5 (Security) and as required under Section 13 (Confidentiality) and the Privacy Policy, Atlas assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

 

6.7.2.     Sensitive Data. You also acknowledge that Atlas is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that AtlaSense may not be HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, other than its security obligations under Section 6.5 (Security) and as required under Section 13 (Confidentiality) and the Privacy Policy, Atlas has no liability under this Agreement for: (a) any personally identifiable information, except as necessary for the establishment of your Atlas account; (b) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (c) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations).

 

6.7.3.     Indemnity for Your Data. You will defend, indemnify and hold harmless Atlas from and against any loss, cost, liability or damage, including attorneys’ fees, for which Atlas becomes liable arising from or relating to any claim relating to Your Data and/or your use of AtlaSense, including but not limited to any claim brought by a third party alleging either (a) that Your Data, or your use of AtlaSense, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (b) that your use of AtlaSense and access by Atlas to Your Data in connection therewith violates any obligation, agreement or duty of non-disclosure or confidentiality or any Law.

 

6.8.  Removals and Suspension. Atlas has no obligation to monitor any content uploaded and/or collected by the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement, we may: (a) remove Your Data from AtlaSense or (b) suspend your access to AtlaSense. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of AtlaSense or other users, we may suspend your access immediately without notice. You will continue to be charged during any such suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to AtlaSense as described in this Section 6.8 (Removal and Suspension).

 

6.9.  Deletion at End of Subscription Term. We may remove or delete Your Data from AtlaSense within a reasonable period of time after the termination of your Period of Use.

 

6.10.                 Acceptable Use Policy.  Under this terms set forth in this Section 6.10 (Acceptable Use Policy), we reserve the right to remove, purge or delete any information, data, text, software, code, scripts, music, sound, photos, graphics, videos, messages, tags, interactive features, or other materials that you post, upload, share, submit, or otherwise provide in any manner to AtlaSense, including Your Data (“Content”) that is either in direct violation of, or inconsistent, incompatible or in indirect conflict with, any of prohibitions listed in clauses (a) through (n) in this Section 6.10 (Acceptable Use Policy). Furthermore, without affecting any other remedies available to us, Atlas may permanently or temporarily terminate or suspend a user’s account or access to AtlaSense without notice or liability if Atlas (in its sole discretion) determines that a user has violated or is in violation of these terms of Section 6.10 (Acceptable Use Policy). Content with any of the following impacts, effects, features or characteristics shall be subject to Atlas’ right the right to remove, purge or delete, or permanently or temporarily terminate or suspend a user’s account or access to AtlaSense: (a) compromising the integrity of our systems; (b) probing, scanning, or testing the vulnerability of any system or network that hosts our services; (c) tampering with, reverse-engineering, or hacking our services, circumventing any security or authentication measures, or attempting to gain unauthorized access to the services, related systems, networks, or data; (d) modifying, disabling, or compromising the integrity or performance of the services or related systems, network or data; (e) deciphering any transmissions to or from the servers running the Hosted Services; (f) overwhelming or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources (CPUs, memory, disk space, bandwidth, etc.); (g) using “robots,” “spiders,” “offline readers,” or other automated systems to send more request messages to our servers than a human could reasonably send in the same period of time by using a normal browser; (h) going far beyond the use parameters for the Hosted Services; (i) consuming an unreasonable amount of storage for music, videos, pornography, etc., in a way that is unrelated to your business objectives; (j) using AtlaSense for any illegal purpose, or in violation of any laws (including without limitation data, privacy, and export control laws); accessing or searching any part of AtlaSense by any means other than our publicly supported interfaces (for example, “scraping”); (k) using AtlaSense to generate or send unsolicited communications, advertising, chain letters, or spam; (l) being illegal, obscene, harmful to minors, or pornographic (including child pornography, which we will remove and report to law enforcement) in nature; (m) containing viruses, bots, worms, scripting exploits, or other similar materials; or (n) capable of otherwise causing damage to Atlas, AtlaSense or any other user of AtlaSense.

 

7.     Software Terms. AtlaSense may include certain Software components which must be downloaded in order to use AtlaSense and the use of which by you are covered by this Section 7 (Software Terms).  

 

7.1.  Your License Rights. Subject to the terms and conditions of this Agreement, Atlas grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable Period of Use, as stipulated as part of the Enrollment. The foregoing license includes access to New Releases, if and when available. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we may make generally commercially available from time to time. The forgoing license will end upon any termination of this Agreement.  In order to operate, we will deliver the applicable license keys in the case of Software to the email addresses specified in your Enrollment when we have received payment of the applicable Charges. You are responsible for installation of any Software, and you acknowledge that Atlas has no further delivery obligation with respect to the Software after delivery of the license keys. 

 

7.2.  Number of Instances. For each Software license that are stipulated in your Scope of Use, you may install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement).

 

7.3.  Your Modifications. Subject to the terms and conditions of this Agreement, including without limitation Section 7.4 (Third Party Code): (a) for any elements of Software provided by Atlas in source code form, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (b) you may also modify and update any related Documentation to reflect your permitted modifications of the Software source code and/or of the related particular use of AtlaSense within your organization. Any modified source code or Documentation constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of AtlaSense but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Atlas has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Platform. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or AtlaSense) or your breach of this Section 7.3.

 

7.4.  Third Party Code.  AtlaSense may contain code and libraries that we license from third parties. Some of these licenses may require us to flow certain terms down to you.

 

7.4.1.     Open Source Software in AtlaSense. AtlaSense may include components subject to the terms and conditions of “open source” software licenses. Some of these licenses require us to provide the open source software to you on the terms of the open source license instead of the terms of the Agreement. In that case, the terms of the open source license will apply, and you will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if you are using AtlaSense in the form provided to you, in accordance with your permitted Scope of Use, with no distribution to third parties, then none of these open source licenses impose any obligations on you beyond what is stated in the Agreement.

 

7.4.2.     Combining AtlaSense with Open Source Software. A requirement of some open source licenses, sometimes known as “copyleft licenses,” is that any modifications to the open source software, or combinations of the open source software with other software (such as by linking), must be made available in source code form under the terms of the copyleft license. Examples of copyleft licenses include the GPL or LGPL, Affero, CPL, CDDL, Eclipse or Mozilla licenses. To the extent you are separately authorized by Atlas to combine and distribute Platform with any other code, you must make sure that your use does not: (a) impose, or give the appearance of imposing, any condition or obligation on us with respect to AtlaSense (including, without limitation, any obligation to distribute AtlaSense under an open source license); or (b) grant, or appear to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in AtlaSense. To be clear, you may not combine or otherwise modify AtlaSense unless we expressly give you the right to do so under this Agreement.

 

7.4.3.     Commercial Third Party Code in AtlaSense. AtlaSense may also include components that we license commercially from third parties (“Commercial Components”). For the avoidance of doubt, all of the restrictions for AtlaSense in the Agreement also apply to Commercial Components. Commercial Components are also subject to some additional requirements as set forth below:

 

7.4.3.1.          You may use Commercial Components only in conjunction with, as part of, and through AtlaSense. You may not install, access, configure or use any Commercial Components (including any APIs, tools, databases or other aspects any Commercial Components) separately or independently of AtlaSense, whether for production, technical support or any other purposes, or otherwise attempt to gain direct access to any portions of the Commercial Components, or permit anyone else (including your customers) to do any of these things.

 

7.4.3.2.          Some Commercial Components may include source code that is provided as part of its standard shipment. Commercial Component source code will be governed by the terms for Commercial Components in this Section 7.4.3 (Commercial Third Party Code in AtlaSense) and not the provisions in Section 7.3 (Your Modifications) above. Accordingly, notwithstanding any other terms of this Agreement, you may not modify any Commercial Components. You will be financially responsible to the applicable third party licensor (“Commercial Component Licensor”) for all damages and losses resulting from your or your Authorized User’s breach of this Section 7.4.3.2. You may not “benchmark” or otherwise analyze performance information for individual Commercial Component elements. You understand that the applicable Commercial Component Licensor retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third party licensors of any components of AtlaSense) are intended third party beneficiaries of the Agreement with respect to the items they license and may enforce the Agreement directly against you. However, to be clear, Commercial Component Licensors do not assume any of Atlas’ obligations under the Agreement.

 

8.     Support and Maintenance. Atlas will provide its standard support and maintenance services then in effect for AtlaSense (“Support and Maintenance”) during your Period of Use. The terms of such Support and Maintenance may be modified by Atlas from time to time to reflect process improvements or changing practices.

 

 

9.     Restrictions.  Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to AtlaSense to a third party, (b) incorporate AtlaSense into a product or service you provide to a third party, (c) interfere with any license key mechanism in AtlaSense or otherwise circumvent mechanisms in AtlaSense intended to limit your use, (d) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs from AtlaSense, (e) remove or obscure any proprietary or other notices contained in AtlaSense or (f) publicly disseminate information regarding the processes and technical aspects of AtlaSense.

 

10.  Future Development of Add-Ons.

 

10.1.                 License to Developer Guides.  From time to time, Atlas may publish software development kits or application programming interfaces and associated guidelines (“Developer Guides”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with AtlaSense (“Add-Ons”). You may distribute your Add-Ons to third parties, but only as specifically permitted by Atlas in the Developer Guide, and only in accordance with the standards and procedures for third party distribution set forth in the Developer Guides.

 

10.2.                 Conditions to Development of Add-Ons. Notwithstanding anything in this Agreement to the contrary, Atlas has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with AtlaSense. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make about your Add-Ons) or your breach of this Section 10 (Future Development of Add-Ons).

 

11.  License Certifications and Audits. At our request, you agree to provide a signed certification that you are using AtlaSense pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of AtlaSense. We will provide you with at least 10 days’ advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, you may be charged for any past or ongoing excessive use. This remedy is without prejudice to any other remedies available to Atlas at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.

 

12.  Ownership and Feedback. AtlaSense is being made available on a limited license/access basis, and no ownership right is, or is intended to be, conveyed to you. Atlas and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to AtlaSense, its “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Atlas, including without limitation as they may incorporate Feedback (“Atlas Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Atlas, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). Atlas may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement shall limit Atlas’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

 

13.  Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure, provided that any Atlas Technology shall be deemed Confidential Information of Atlas without any marking or further designation, and Your Data shall be deemed your Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information, except as expressly permitted by this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information, provided that the foregoing exceptions shall not be applicable to Your Data. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

 

14.  Term and Termination. This Agreement is in effect for as long as the Period of Use stipulated during Enrollment, along with all renewals thereof (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Atlas. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access AtlaSense, or any information or materials that we make available to you under this Agreement, including any Confidential Information of Atlas. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 4 (Payment Terms), 9 (Restrictions), 11 (License Certifications and Audits), 12 (Ownership and Feedback), 13 (Confidentiality), this 14 (Term and Termination), 15 (Disclaimer), 16 (Limitation of Liability), 19 (Dispute Resolution), 21 (General Provisions), and all provisions regarding indemnification of Atlas.

 

15.  Disclaimer. THE PLATFORM IS PROVIDED “AS IS,” AND ATLAS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. ATLAS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ATLAS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ATLAS DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM OR ANY CONTENT GENERATED THEREWITH, OR THAT: (A) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PLATFORM WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (D) ANY DATA PROCESSED BY THE PLATFORM WILL BE ACCURATE OR RELIABLE OR THAT ANY SUCH PROCESSED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PLATFORM (OR ANY SERVER(S) THAT MAKE THE PLATFORM HOSTED SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

16.  Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE CHARGES ACTUALLY PAID BY YOU TO US IN THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM. THIS SECTION 16 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) CHARGES OWED BY YOU, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 9 (RESTRICTIONS) OR SECTION 7.4 (THIRD PARTY CODE). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 16 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

17.  Publicity Rights. We may identify you as an Atlas customer in our promotional materials. You may request that we stop doing so by submitting an email to us at any time. Please note that it may take us up to 30 days to process your request.

 

18.  Improving Our Platform. We are always striving to improve our Platform. In order to do so, we need to measure, analyze, and aggregate how users interact with our Platform, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our Platform as described in our Privacy Policy.

 

19.  Dispute Resolution.

 

19.1.                 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration administered by ADR Services, Inc. pursuant to ADR Services, Inc. Arbitration Rules. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Los Angeles, California (USA). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable Law and jurisdictions. The language of the arbitration shall be English.

 

19.2.                 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 19.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Los Angeles, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction and venue of the courts in Los Angeles, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Atlas may bring a claim for equitable relief in any court with proper jurisdiction.

 

20.  Changes to this Agreement. We may update or modify this Agreement from time to time, including any policies and other documents referenced herein. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to any billing or technical contact you designate as part of Enrollment, posting on our website, through your Atlas account, or through AtlaSense). You may be required to click through the updated Agreement to show your acceptance. For the avoidance of doubt, any Enrollment is subject to the version of the Agreement in effect at the time of the Enrollment.

 

21.  General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via electronic mail or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by electronic mail to legal@atlasense.com, with “AtlaSense Customer Agreement” in the subject line. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. In addition, in connection with a bona fide corporate reorganization or a sale of either Atlas or its business, Atlas may transfer all of Your Data to any successor or acquirer, as applicable, and you hereby consent to any such transfer. This Agreement is the entire agreement between you and Atlas relating to AtlaSense and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to AtlaSense or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.