Terms of Service
July 10, 2019
These Terms of Service (“Terms”) apply to your access to and use of certain software, mobile applications and websites, and other online products and services (collectively, the “Services”) provided by Atakama LLC (“Atakama” or “we”).
By using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 17. If you do not agree to these Terms, do not use our Services.
“Customer” or “you” refer to you. If you use the Services on behalf of another person or entity, (a) all references to “you” or “Customer” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
2. Services, Grants and Registration
Atakama provides several service plans. Each Atakama plan includes a description of the software components of the Services (“Software”), the period the Software will be provided (the “Subscription Period”), the fees for the applicable Software (the “Subscription Fees”), and other terms and conditions. All such information is incorporated into these Terms by reference.
In order to access the Services, you must complete the Atakama registration form provided via our website or mobile application. During the registration process the Customer must select a Atakama services plan.
Subject to the terms and conditions of these Terms (including, but not limited to, Atakama’s receipt of the Subscription Fees), Atakama grants to Customer, during the Subscription Period, a non‑exclusive, worldwide, non‑sublicensable, and non‑transferable license to download, access and use the Software solely for Customer’s internal purposes.
You must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
Customer acknowledges and agrees that the operation of the Software is dependent upon Customer possessing and maintaining the hardware and software at www.atakama.com (“Required Components”), and the Required Components may be updated from time‑to‑time by Atakama and such list is incorporated into these Terms by reference.
Subject to the terms and conditions of these Terms (including, but not limited to, Atakama’s receipt of the Subscription Fees), Atakama will provide the technical maintenance and support services outlined at www.atakama.com (“Support”), and such support and related terms are incorporated into these Terms by reference.
4. Fees and Payment Terms
The Subscription Fees are set forth in the Atakama plan selected by Customer. Atakama, at its sole discretion, may modify its pricing during any Subscription Period and such pricing changes will be effective as of the directly subsequent Subscription Period.
Unless Atakama states otherwise, all payments must be made: (a) in U.S. Dollars; and (b) by check in immediately available funds to an account designated by Atakama or by credit/debit card via an authorized Atakama payment processor. If by credit/debit card, Customer hereby: (i) authorizes Atakama (or its authorized payment processor) to charge the credit/debit card number provided to Atakama; and (ii) represents and warrants that the Customer is authorized to use and have fees charged to the credit/debit card number provided to Atakama. Customer understands that it may withdraw such authorization by contacting Atakama at email@example.com
Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Services provided under these Terms excluding taxes based solely on Atakama’s net income. Customer will indemnify and hold Atakama harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest.
5. Term, Termination and Effects of Termination
Unless terminated as set forth in these Terms, the term of these Terms will be for the Subscription Period, and thereafter these Terms will automatically renew for successive periods equivalent in length to the initial Subscription Period, unless a party terminates these Terms by providing the other party with written notice of its desire to terminate these Terms no less than 60 days prior to the close of the then‑current Subscription Period.
Customer may terminate these Terms, for convenience, at any time with 60 days’ advance written notice to Atakama. Either party may terminate these Terms, for cause, if the other party breaches these Terms and does not remedy such breach within 30 days after its receipt of written notice of such breach. Further, Atakama may suspend use of the Software without liability if Atakama is required by any applicable laws to suspend use of the Software.
Upon any expiration or termination of these Terms, (a) all rights and licenses granted to Customer under these Terms will immediately terminate, and (b) Customer will immediately pay to Atakama all amounts due and payable up to the effective date of termination of these Terms. Notwithstanding any terms to the contrary in these Terms, this sentence and Sections 5, 8, 9, 10 through 14, 16, 17 and 18 will survive any termination or expiration of these Terms.
The Atakama brand, and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Atakama and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
Except as expressly authorized by these Terms, Customer may not (a) modify, disclose, alter, translate or create derivative works of the Software (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software (or any components thereof), (c) disassemble, decompile or reverse engineer the Software, (d) build a competitive product or service, or copy any features or functions of the Software, (e) disclose to any third party any performance information or analysis relating to the Software, (f) use the Software, or allow the transfer, transmission, export or re‑export of the Software or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency, (g) remove, alter or obscure any proprietary notices in or on the Software, including copyright notices, (h) disclose or make available passwords, user IDs or other credentials and login information that Atakama has provided to Customer or that are generated in connection with Customer’s use of the Software, or (i) cause or permit any third party to do any of the foregoing.
8. Confidentiality and Feedback
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Atakama to Customer (or otherwise discovered by Customer) concerning or related to these Terms, Atakama and/or the Services (whether before, on or after the Effective Date) which Customer knows or should know, given the facts and circumstances surrounding the disclosure of the information, is the confidential information of Atakama including, but not limited to: trade secrets, know‑how, business plans, the Services and other similar information. Customer will, during the term of these Terms and thereafter, maintain in confidence the Confidential Information and will not use or disclose such Confidential Information except as expressly permitted in these Terms. Customer will use the same degree of care in protecting the Confidential Information as Customer uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Notwithstanding any terms to the contrary in these Terms, any suggestions, comments or other feedback provided by Customer to Atakama with respect to the Services, the Support or Atakama (collectively, “Feedback”) will constitute Confidential Information. Atakama will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of Intellectual Property Rights or otherwise. Customer acknowledges and agrees that any unauthorized disclosure of Confidential Information will result in irreparable injury to Atakama, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, Atakama will be entitled to seek and obtain injunctive relief against any breach or threatened breach by Customer of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies or post any bond or other security.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND Atakama DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT Atakama KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE.
10. Limitation of Liability
EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, Atakama WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, 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.
EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, Atakama’S ENTIRE LIABILITY TO YOU WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO Atakama DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED.
MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
To the fullest extent permitted by applicable law, you release Atakama and the other Atakama Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
12. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Atakma and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Atakma agree that any dispute arising out of or related to these Terms or our Services is personal to you and Atakma and any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Atakma seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Atakma seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Atakma waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Atakma or relating in any way to the Services, you agree to first contact Atakma and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Atakma by email at firstname.lastname@example.org or by certified mail. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Atakma cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York County, New York or may be conducted telephonically or via video conference for disputes alleging damages less than $100, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Atakma agree that these Terms affect interstate commerce and that the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Atakma, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Atakma agree that for any arbitration you initiate, you will pay the filing fee and Atakma will pay the remaining JAMS fees and costs. For any arbitration initiated by Atakma, Atakma will pay all JAMS fees and costs. You and Atakma agree that the state or federal courts of the State of New York and the United States sitting in New York County, NY have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Atakma will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 12 by notifying us at email@example.com.
To be effective, the opt‑out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 13.
If any portion of this Section 12 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 12 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 12; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 12 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 12 will be enforceable.
13. Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in New York County, New York.
14. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
16. Additional Terms Applicable to iOS Devices
The following terms apply if you install, access or use the Services on any device that contains the iOS mobile operating system (the “App”) developed by Apple Inc. (“Apple”).
-Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple, and Atakma, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
-Scope of License. The license granted to you is limited to a non‑transferable license to use the App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
-Maintenance and Support. You and Atakma acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
-Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Atakma. However, you understand and agree that in accordance with these Terms, Atakma has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
-Product Claims. You and Atakma acknowledge that as between Apple and Atakma, Atakma, not Apple, is responsible for addressing any claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
-Intellectual Property Rights. The parties acknowledge that, in the event of any third‑party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, Atakma, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
-Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
-Developer Name and Address. Any questions, complaints or claims with respect to the App should be directed to firstname.lastname@example.org.
-Third‑Party Terms of Agreement. You agree to comply with any applicable third‑party terms when using the Services.
-Third‑Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third‑party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third‑party beneficiary thereof).
The failure of Atakma to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third‑party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. These Terms constitute the entire agreement between you and Atakma relating to your access to and use of our Services. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or the Services, in whole or in part, without your prior written consent.
As between the parties and subject to the grants expressly set forth in these Terms, Atakma owns all right, title and interest in and to the Offerings, the Feedback and Atakma Analytic Data (as defined below), together with any and all Intellectual Property Rights embodied in or relating to the foregoing. Each party reserves all rights not expressly granted in these Terms, and no licenses are granted by a party to the other party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth in these Terms. For the purpose of these Terms, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.Customer acknowledges and agrees that Atakma may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Offerings and/or any individuals/entities that interact with the Offerings (collectively, “Atakma Analytic Data”).
Notwithstanding any terms to the contrary in these Terms, Customer acknowledges and agrees that (a) the Software contains Third Party Software (as defined below), and (b) Customer agrees to comply with the third party licenses applicable to the Third Party Software. Further, notwithstanding any terms to the contrary in these Terms, Customer hereby acknowledges that Atakma and the suppliers of the Third Party Software (a) disclaim and make no representation or warranty with respect to such Third Party Software or any portion thereof, and (b) assume no liability for any claim that may arise with respect to any Third Party Software or Customer’s use or inability to use the same. For the purpose of these Terms, “Third Party Software” means the copyrighted, patented and/or otherwise legally protected software of third parties that may be incorporated in the Software as set forth in at www.atakma.com.
Customer consents to (a) Atakma’s use of Customer’s name and logo on the Atakma websites, mobile applications, and publicly‑available materials, identifying Customer as a customer of Atakma and describing Customer’s use of Atakma’s products and services, and (b) a press release with respect to Customer’s use of Atakma’s products and services.
Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S‑202, Sacramento, California 95834, or by telephone at 1 (800) 952‑5210.