BY ORDERING, RECEIVING, CONFIGURING, OR OTHERWISE USING THE SERVICES (AS DEFINED HEREIN), OR ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU ACCEPT AND AGREE TO THE TERMS OF THIS MASTER SERVICES AGREEMENT, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE “AGREEMENT”), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS EMPLOYEES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent.

In consideration of the benefits and obligations exchanged in this Agreement, the Parties agree as follows:

SECTION 1. DEFINITIONS

“Documentation” means the official online user guides, documentation, help, support, and training materials, as updated from time to time, accessible via Atakama’s website, by login to the applicable Services portal, and our customer support portal.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order” means the Atakama provided ordering document including a quote, order, or Statement Of Work specifying amongst other things the Services to be provided hereunder and pricing, and which is entered into between You and Us electronically, in writing, or otherwise, including any addenda and supplements thereto.
“Services” as used in this Agreement shall mean the services that are ordered by You under and made available by Us as described in the Documentation, including all Atakama software (i.e., computer programs) licensed under this Agreement, and all related files, documentation, and other materials, whether in whole or in part, including any and all modifications, derivative works, and copies of the foregoing, regardless of the form or media in or on which they may exist.
“Statement of Work” or “SOW” means a statement of work, work order, or other similar document executed by You and Us that sets forth specific Services to be performed by Us.
“Usage Statistics” means any non-personally identifying information relating to or arising from the capabilities, problems, successes, statistics, diagnostics, inventory, composition, configuration, performance (or lack thereof) of: (a) the Services, or (b) any devices, networks, software, hardware, or other item used in connection with or otherwise related to the Services.
“User” means an individual who is authorized by You to use the Services, or for whom You have ordered the Services. Users may include, for example, Your employees and any employees of Your client companies.
“We,” “Us,” “Our,” means Atakama.
“You” or “Your” means your company or other legal entity for which you are accepting this Agreement, such as Your client companies.
“Your Data” means electronic data, information, and files uploaded or submitted by or for You in connection with the Services or collected and processed by or for You using the Services, excluding feedback and Usage Statistics.

SECTION 2. OUR RESPONSIBILITIES

Provision of Services. Subject to the terms of this Agreement, We will: (a) make the Services available to You pursuant to this Agreement and the applicable Orders, and (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week.
Protection of Your Data. Subject to the terms of this Agreement, We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except: (a) to provide the Services and prevent or address technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, (c) to disable or remove any offending data, (d) to correct inaccurate or misleading data, or (e) as You expressly permit in writing. This Agreement incorporates the Atakama Privacy Policy available at www.atakama.com/privacy.
Downtime and Service Suspensions. In addition to Our rights to terminate or suspend Services to you as otherwise set forth in the Agreement, you acknowledge that: (i) we shall be entitled, to suspend access to any portion or all of the Services at any time: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service (for which We shall give at least five (5) business days electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Eastern Time Friday and 6:00 a.m. Eastern Time Monday), (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to any of Our other customers if the Service were not suspended, (c) in the event that We determine that any Service is prohibited by law or We otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons, or (d) if You engage in any conduct or activities that Atakama in good faith believes to be in violation of any of the terms and conditions in the Agreement, and (ii) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions (all of the foregoing collectively referred to as “Service Suspensions”). Atakama shall make reasonable attempts to minimize the duration of any Downtime or Service Suspensions, and, when practical, attempt to minimize the impact to portions of Services or to affected Users. Atakama shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension. To the extent We are able, We will endeavor to provide You notice of any Service Suspension but shall have no liability for the manner in which We may do so or if We fail to do so; it being further understood that Atakama may take any mitigating action without liability or notice to You in response to the situations described in (i)(c) and (d) of this paragraph.
Ongoing Development. As part of our ongoing research and development and continuous improvement initiatives, and subject to Our Warranties (Section 7.2), We may alter the Services and Documentation from time-to-time, at our discretion, for data analysis, testing, research, troubleshooting, bug fixes, security enhancements, and service improvements.

Support and Escalation

We will use commercially reasonable efforts to provide support for the Services during normal business hours, excluding holidays. You may submit support requests through Our designated support channels. Support requests will be prioritized based on severity, business impact, number of affected users, and available information.

Our standard escalation levels are:

Severity	Description	Target Acknowledgement
Critical	Material outage or severe degradation affecting all or substantially all users	As soon as reasonably practicable
High	Significant issue affecting important functionality or multiple users, with no reasonable workaround	Within one business day
Standard	Non-critical issue, product question, configuration matter, or general request	Within two business days

We will use commercially reasonable efforts to provide periodic updates until the matter is resolved, downgraded, or otherwise closed. Resolution times may vary depending on the nature and complexity of the issue, Your responsiveness, third-party dependencies, and whether engineering work is required. You agree to provide reasonable cooperation, including relevant details, screenshots, logs, affected users, impacted systems, and steps already taken. We may escalate issues internally to support, customer success, engineering, management, or other appropriate personnel.

SECTION 3. USE OF SERVICES

Subscriptions. Unless otherwise provided in the applicable Order or Documentation: (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
Your Responsibilities. You will: (a) be responsible for Users’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Us promptly of any such unauthorized access or use, and (c) use the Services only in accordance with the Documentation and applicable laws and government regulations.
Usage Restrictions. You will not: (a) make any Services available to, or use any Services for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Services or include any Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to any Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit or security measures, (h) use Atakama API services other than as specified in Documentation, (i) run or use any automated processes that “crawl”, “scrape”, or “spider” the Services, (j) copy the Service or any part, feature, function or User interface thereof, (k) frame or mirror any part of the Services other than for Your own internal business purposes or as permitted in the Documentation, (l) access the Services in order to build a competitive product or service, (m) reverse engineer the Services, or (n) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. We may temporarily suspend the Services due to violations of this Section 4.4, if, in Our sole judgment, such suspension is needed to protect either the security or integrity of the Services. In the event of such suspension, We will notify You as soon as practically possible.
Accuracy. Per Section 7.3 (Disclaimers), we disclaim any warranty of accuracy or applicability of information in the Services, but We will strive to provide informative, appropriate, and accurate information. We encourage You to provide feedback about any errors through our customer support channels, and Atakama shall have sole discretion over its response (or to not respond) to such feedback. You agree that Atakama shall have the right to remove, alter, or attempt to correct in good faith any data or information, including, without limitation, Your Data, that we reasonably believe is incorrect or misleading, and resulting from misuse of the Services, cheating, fraudulent activity, or software or hardware failures.
Third Party Clients and Responsibility for Accounts Generally. You are responsible for the compliance with the Agreement of Your Users, employees, volunteers, contractors, and others that access the Services on your behalf (collectively, “Third Party Clients”). You agree to furnish such information to Us, and to adopt and utilize (and to cause Third-Party Clients to adopt and utilize) such other measures as We reasonably may prescribe, in order to assure that the Services are furnished by Us pursuant to this Agreement only to Third-Party Clients to whom You have a contractual obligation to provide such Services. You agree that the security of your accounts and of any network or system utilized by You is solely Your own responsibility. You are responsible for maintaining the secrecy and security of Your passwords and acknowledge and agree that Your Data will be lost and irretrievable if your account credentials are lost or misused. You are fully responsible for all activities that occur on Your accounts, regardless of whether such activities are undertaken by You or a third party. You further agree that if You believe that the security of Your account, Your Data, or of any such network or system has been compromised in any way, you will notify Atakama immediately both by email and telephone. You agree not to interfere with the proper operation of any network or system utilized by Atakama (including but not limited to defeating identification procedures, obtaining access beyond that which You and Third-Party Clients are authorized for, and impairing the availability, reliability, or quality of the Services for other customers of Atakama) or with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. You further agree not to use the Services or knowingly to permit any Third-Party Client to use the Services for or in connection with any illegal or improper purpose or activities or in violation of this Agreement.

SECTION 4. FEES AND PAYMENT

Fees. You will pay all fees specified in Orders. Except as otherwise specified herein fees are based on actual usage and fees paid are non-refundable.
Invoicing and Payment. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. You agree to comply with the payment terms set forth on the relevant Order. If paying by credit card, You will provide Us with valid and updated credit card information and You authorize Us to charge such credit card (or any successor credit card) for all Services listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Subscriptions). Such credit card charges shall be made in accordance with the billing frequency stated in the applicable Order.
Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (b) We may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
Suspension of Services and Acceleration. If any amount owing by You under this or any other agreement for the Services is thirty (30) or more days overdue (or ten (10) or more business days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. We will give You at least ten (10) business days’ prior notice that Your account is overdue, in accordance with Section 11.1 (Notices), before suspending Services to You.
Payment Disputes. We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Taxes. Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
Invoices and Errors. We may provide you with a single invoice only and may provide all invoices via electronic means including via an online billing statement. If we make an error on your invoice, we will correct it promptly after you tell Us and We investigate the charge. YOU MUST TELL US WITHIN THIRTY (30) DAYS AFTER AN ERROR FIRST APPEARS ON YOUR INVOICE. YOU RELEASE US FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT YOU DO NOT REPORT TO US WITHIN THIRTY (30) DAYS AFTER THE ERROR FIRST APPEARS ON YOUR INVOICE. If you do not tell us within this time, we will not be required to correct the error. We can correct billing errors at any time.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

SECTION 5. PROPRIETARY RIGHTS AND LICENSES

Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all Our right, title, and interest in and to the Services, and all items provided by or through Atakama under this Agreement, including all of Our related intellectual property rights. You acknowledge that: (a) Atakama is the exclusive owner of all right, title, and interest in and to the foregoing, and (b) no rights are granted to You hereunder other than as expressly set forth herein.
License by Us to Use Services. With respect to Atakama software (as included in the definition of “Services” herein) acquired by You pursuant to Orders, We grant you a limited-term license during the applicable subscription term, under Our applicable intellectual property rights and licenses, subject to those Orders, this Agreement, and the Documentation, the right to install and use the Atakama software solely to the extent necessary to use the Services in accordance with the Agreement. The Atakama software is designed solely to enable use of the Services and is not intended to be operable or used on a standalone basis in the absence of the Services. Accordingly, You agree to not operate or use the Atakama software on a standalone basis in the absence of the Services. In addition to the other restrictions in this Agreement, You may not circumvent or bypass any technological protection measures in or relating to the Services or disassemble, decompile, or reverse engineer any Atakama software or other aspect of the Services that is included in or accessible through the Services; separate components of the Services for use on different devices; publish, copy, rent, lease, or lend the Services; or transfer the Atakama software, any licenses herein, or any rights regarding the Services, except as expressly permitted by this Agreement. You may not use the Services in any unauthorized way that could interfere with anyone else’s use of them or gain access to any service, data, account, or network. You may not enable access to the Services by unauthorized third-party applications. We may automatically check your version of the Atakama software. We may also automatically upload updates to the Atakama software from time to time. You agree to accept such updates subject to these terms unless other terms accompany the updates. If so, those other terms apply. Atakama isn’t obligated to make any updates available and doesn’t guarantee that We will support the version of the system for which you licensed the Services.
Copyright or Other Marks. You agree not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Services.
License by You to Host Your Data. Atakama does not claim ownership of Your Data. You hereby grant to Atakama a nonexclusive, worldwide, royalty-free, fully paid, transferable license to host, cache, record, copy, process, and display Your Data in accordance with the Agreement. Except as set forth in the Agreement, as between You and Atakama, You retain all right, title, and interest in and to Your Data. You, not Atakama, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Your Data. You agree that Atakama shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss, or failure to secure or store any Your Data due to actions or neglect by Your (or third party) Users, or hardware or software technologies. You acknowledge that You bear sole responsibility for adequate security, protection, and backup of Your Data. We strongly encourage you, where available and appropriate, to: (a) use encryption technology and strong passwords to protect Your Data from unauthorized access, and (b) routinely archive Your Data. Atakama reserves the right to refuse to post or to remove and discard any information or materials, in whole or in part, that Atakama believes in good faith to be unacceptable, undesirable, or in violation of the Agreement. Atakama has no obligation to provide any information (including Your Data) to You in any specific format.
License by You to Use Feedback. You may submit questions, comments, or feedback to Atakama from time to time. Atakama reserves the right to edit and post such questions or comments along with answers, if any. All such communications and any comments, feedback, suggestions, scripts, software, ideas, and other submissions related to the Services submitted to Atakama (collectively, “Feedback”) will be and remain Atakama’s property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Feedback are hereby assigned (and in the future deemed to be assigned) by You to Atakama.
Federal Government End Use Provisions. We provide the Services, including related Atakama software, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

SECTION 6. CONFIDENTIALITY

Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, 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. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and related Atakama software; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to the Receiving Party’s employees. Neither party will disclose the terms of this Agreement or any Order to any third party without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this Section 6.2.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Customer Relationship. We may disclose to any third party that You are one of our customers and may place Your name and logo on Our website and marketing materials for this purpose.

SECTION 7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Our Warranties. We warrant that: (a) the Services will perform materially in accordance with the applicable Documentation, (b) We will not materially decrease the functionality of the Services during a subscription term, and (c) the Services will not introduce known Malicious Code into Your systems. For any breach of an above warranty or the provisions of Section 3, Your exclusive remedies are those described in Sections 10.3 (Termination) and 10.4 (Refund or Payment upon Termination).
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

SECTION 8: MUTUAL INDEMNIFICATION

Indemnification by Us. We will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of Services or the Atakama software in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees, and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You: (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You: (i) modify the Services so that it no longer infringes or misappropriates, without breaching Our warranties under Section 7.2, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your subscriptions for the Services upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement.
Indemnification by You. You will defend Us against any claim, demand, suit, or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services, in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees, and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We: (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.

SECTION 9. LIMITATION OF LIABILITY

Limitation of Liability. WITH THE EXCEPTION OF THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT).
Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Negotiated Limits. You agree that the limitations of liability and disclaimers set forth herein will apply regardless of whether You have accepted the Services. You acknowledge and agree that Atakama has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. The limitations and exclusions provided for by this section reflect an informed and voluntary allocation of risks between the parties and applies to risks both known and unknown that may exist in connection with the Agreement.

SECTION 10. TERM AND TERMINATION

Term of Agreement. This Agreement commences on the date You first accept it or, if earlier, when You use any of the Services and continues until all subscriptions hereunder have expired or have been terminated.
Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for a period equal to the expiring subscription term unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
Termination. A party may terminate this Agreement and all subscriptions for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and such is not dismissed within thirty (30) days.
Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 10.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 10.3, You will pay any unpaid fees covering the remainder of the term of all Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
Automatic Removal of Software upon Termination of Service. Access to the Services is restricted to Users with a valid and current subscription. Users with expired or terminated subscriptions still running will remove the Services.
Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Notices, Governing Law, Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.

ARTICLE 11. NOTICES, GOVERNING LAW, JURISDICTION

Notices. Unless otherwise provided in this Agreement, any notice required or permitted by this Agreement to be given to either party shall be deemed to have been duly given if in writing and delivered personally or mailed by first-class, registered, or certified mail, postage prepaid, and addressed to the respective address of the party identified in the Order.
Attorneys’ Fees. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
Arbitration Clause. All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of New York, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in New York City, New York before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law in New York. No party to this Agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent the party from obtaining an injunction.
Governing Law. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of New York.

ARTICLE 12. GENERAL PROVISIONS

Export Compliance. The items under this Agreement and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our senior management.
Amendment. Except as set forth in this Agreement and the following sentence, no modification, amendment, or waiver of any provision of this Master Services Agreement will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Notwithstanding the foregoing sentence: (a) We retain the right to periodically modify the Master Services Agreement upon email or in-app notification to You, and such modification will automatically become effective and binding on the next renewal of Your earliest renewing subscription and will apply to all purchase and use of Services thereafter. If You do not agree with a modification to this Master Services Agreement, do not renew Your subscription or use the Services.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Force Majeure. Atakama’s performance of the Agreement is subject to existing laws and legal process, and You agree that Atakama may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of the Agreement. Each party’s obligation to perform its obligations hereunder (other than your obligation to pay fees when due) shall be suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
Nonwaiver. The parties agree that no failure to exercise, and no delay in exercising any right, power, or privilege hereunder on the part of either party shall operate as a waiver of any right, power, or privilege. The parties further agree that no single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

Master Services Agreement