Last updated on October 24, 2024.
These Terms and Conditions (the "Terms") are effective upon execution of a Service Agreement referencing these Terms (each, a "Service Agreement" and together with these Terms, the "Agreement"), by and between AQX Global Corp. dba Atlas. ("Atlas") and the party named as Customer in the Service Agreement ("Customer"). The Agreement governs the provision by Atlas to the Customer of access to the web-based service described at www.youratlas.com, as it may be updated from time to time in ATLAS's sole discretion (the "ATLAS Service"). The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements. Any term not defined herein shall have the meaning assigned to it in the Service Agreement.
Subscriber agrees that it shall comply with and abide by all applicable Federal and State laws, rules and regulations governing the use of automated or prerecorded/artificial calls or texts including but not limited to the Telephone Consumer Protection Act, the Telemarketing Sales Rule and accompanying Do-Not-Call regulations, and, without limitation, any and all current or future equivalent state telemarketing laws regulating the use of prerecorded or automated calls/texts, state do-not-call regulations, and state telemarketer registration requirements.
Subscribers shall provide accurate, correct, and truthful Caller ID information. Subscribers shall provide all disclosures required by law. Subscriber agrees and acknowledges that compliance with such laws is Subscriber's sole responsibility.
The subscriber acknowledges and understands that recipient consent is required for certain types of communications. The subscriber understands that there may be different "levels" of consent for different communications. Without limiting the foregoing sections, if Subscriber does not have either consent or a business relationship with a recipient as required by applicable law or legally valid exemption from, or legally valid exception to, such laws, Subscriber shall not make that communication.
Subscriber (i) has and maintains personally or via a third-party the records to prove that Subscriber had the necessary consent, business relationship or legally valid exemption from, or legally valid exception to, such laws at the time of the communication and (ii) will provide certified copies of such records to ATLAS promptly on ATLAS's email request.
During the Term and subject to Customer's compliance with the terms of this Agreement, ATLAS shall provide Customer with non-exclusive access to the ATLAS Service and grants Customer the right to access and use the ATLAS Service solely for its own business purposes.
Access to the ATLAS Service is made available for the Customer only. The customer is required to maintain that each end-user (an "End-User") has unique log-in credentials. Customer will ensure that End-Users maintain the confidentiality of their log-in credentials and will be responsible for End-Users' compliance with this Agreement.
ATLAS offers the ability to integrate the ATLAS Service with certain services and applications operated by various third parties ("Third Party Services"). ATLAS is not responsible or liable for (i) the content of the Third Parties Services, (ii) the availability or reliability of the Third Party Services, or (iii) any acts or omissions of the parties offering such Third Party Services.
If Customer chooses to connect its ATLAS account with a Third Party Service, Customer grants ATLAS permission to access and use its information from that service as permitted by that Third Party Service, and to store its log-in credentials for that Third Party Service solely for the purpose of facilitating such connection.
ATLAS and Customer may additionally agree upon the provision by ATLAS of professional services relating to the implementation or other support of Customer's use of the ATLAS Service, as set forth in a Statement of Work referencing this Agreement ("Professional Services").
The pricing model for the ATLAS Service has the following components as set forth in the applicable Service Agreement:
an annual license fee (the "License Fee");credits that, upon purchase, are applied to Customer's account to be used as described below ("Credits"); and fees for Professional Services ("Professional Service Fees" and together with License Fees and Credits, "Fees").
Credit balances are drawn against when Customer incurs charges for items such as telephony minute usage, phone number line access fees or connection fees, as applicable. If there are no Credits available on Customer's account at the time Customer incurs charges, Customer is billed for such charges monthly in arrears at list price. Fees charged are as-described on the applicable Service Agreement or Statement of Work and are not refundable. Credits expire at the end of the Subscription Term set forth in the Service Agreement.
If you choose to upgrade your plan or add Credits, any additional cost will be payable upon the date of such change. For each subsequent Subscription Term, unless otherwise agreed in writing, your subscription will renew with the same License Fee and Credits, including Credits added during the prior Subscription Term. There are no refunds or credits for plan downgrades, or unused Credits.
Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
Customer is solely responsible for payment of any taxes resulting from the use of the ATLAS Service. If any such taxes are required to be withheld, Customer shall pay an amount to ATLAS such that the net amount payable to ATLAS after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
Customer agrees that it shall notify ATLAS within 60 days of receipt of an invoice from ATLAS if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted. Customer agrees to pay all invoices when due, even if subject to dispute.
ATLAS shall retain all intellectual property rights in the ATLAS Service, including any and all derivatives, changes, and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Customer hereby grants ATLAS a non-exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions or feedback given by Customer pertaining to the ATLAS Service.
Customer shall:
not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the ATLAS Service; not represent that it possesses any proprietary interest in the ATLAS Service; not directly or indirectly, take any action to contest ATLAS's intellectual property rights or infringe them in any way; and except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of ATLAS.
All data, information, files or other materials and content that Customer makes available to ATLAS for the purpose of utilizing the ATLAS Service, including, without limitation, the content of telephone calls made by or to Customer and its End-Users ("Customer Content") shall remain the sole property of Customer. ATLAS is not responsible for the content of or any use by Customer of the Customer Content.
Customer hereby grants ATLAS a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, solely to the extent required to perform the ATLAS Service.
ATLAS may anonymize and aggregate Customer Content (as so anonymized and aggregated, "Machine Learning Data") for the purpose of analyzing and improving the performance of the Service, including the machine learning algorithms underlying the Service. Customer hereby grants to ATLAS a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Machine Learning Data for such purposes, provided that no such use of the Machine Learning Data identifies the Customer or any of its End-Users.
Each party (each a "Receiving Party") agrees that it shall use and reproduce the Confidential Information of the other party (the "Disclosing Party") only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party's employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party.
The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
"Confidential Information" means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement.
Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove:
was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of the Disclosing Party; was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party's rights; or is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
Each party represents and warrants that:
this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation (including, in the case of Customer, with respect those laws relating to call recording, telemarketing and privacy).
Customer represents and warrants that the Customer Content does not infringe upon any third party's proprietary rights, including intellectual property rights. Customer represents and warrants that:
it is aware of its obligations with respect to compliance with laws relating to call recording, telemarketing, spam and privacy, and it does not rely on ATLAS for advice or for ensuring compliance with such laws.
EXCEPT AS EXPRESSLY STATED HEREIN, ATLAS PROVIDES THE USAGE OF THE ATLAS SERVICE TO CUSTOMER ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ATLAS DOES NOT WARRANT THAT THE ATLAS SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE ATLAS SERVICE.
Customer shall defend, indemnify and hold harmless ATLAS and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys' fees (collectively, a "Claim"), arising out of or relating to:
the use or display of any Customer Content; Customer's breach of its warranties under Section 6.1 of this Agreement; or Customer's use of the ATLAS Service in any manner that violates this Agreement or applicable laws, rules or regulations.
ATLAS shall defend, indemnify, and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the ATLAS Service infringes any intellectual property right of a third party.
The indemnified party shall provide the indemnifying party with:
prompt written notice of such Claim; sole control over the defense and settlement of such Claim; and information as may be reasonably requested by the indemnifying party.
The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party's written consent.
IN NO EVENT WILL ATLAS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT ATLAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT IN THE CASE OF (I) INDEMNIFICATION OBLIGATIONS OF SECTION 7 THIS AGREEMENT, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ATLAS'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ATLAS SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ATLAS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
This Agreement shall commence on the Effective Date and shall remain in effect for the period stated in the Service Agreement or until terminated as provided herein (the "Term").
Either party may terminate this Agreement:
for the other party's material breach by giving written notice to the other party specifying in detail the nature of the breach, effective 30 days after receipt of such notice unless the breaching party first cures such breach orif the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
Upon termination or expiration of this Agreement, Customer will immediately cease use of the ATLAS Service and each party shall return to the other party or destroy all of the other party's Confidential Information then in its possession, provided however, that customer may retain an archival copy of such data in its backup systems as required by its security and data retention policies or as required by applicable law.
The following provisions shall survive any expiration or termination of this Agreement:
the obligation of Customer to pay fees incurred prior to termination; Section 3 (ATLAS Intellectual Property Rights & Restrictions),Section 5 (Confidentiality);Section 6.2 (Disclaimer of Warranties);Section 7 (Indemnification);Section 8 (Limitation of Liability); and Section 10 (Miscellaneous).
These terms may be amended by ATLAS from time to time in its sole discretion. In the event of such an amendment, ATLAS will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended terms will be effective with respect to Customer upon the end thereof. If Customer does object, the terms in effect immediately prior to such amendment will remain in effect until the end of the then-current Subscription Term, and the amended terms will go into effect upon the beginning of the next Subscription Term, if the agreement is renewed pursuant to the terms of the Service Agreement.
This Agreement is governed by the laws of the State of Delaware, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in Delaware, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Both parties agree that all claims brought against the other must be brought in such party's individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party's prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by ATLAS of Customer's name and logo on its website and in marketing materials, subject to Customer's right to revoke such approval upon written notice to ATLAS.