Effective Date: September 7, 2020
This Customer Agreement (the “Customer Agreement”) is between AtlasX, Inc., a New York corporation (“AtlasX”) and the organization agreeing to these terms (“Customer”). This Customer Agreement governs Customer’s access to AtlasX’s real estate pipeline management service (the “Service”) and its associated applications and website. By accepting this agreement, either by clicking a box indicating your acceptance or by executing an order form that references this agreement, Customer agree to the terms of this agreement. If an individual is entering into this Customer Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that he has the power and authority required to bind such organization to this Customer Agreement.
2. Customer Obligations.
3. Customer’s Use of Third Party Services. AtlasX does not warrant or support any third party service (e.g., a service that utilizes the AtlasX API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
4. Intellectual Property Rights.
5. Fees and Payment. By subscribing to the Service and providing payment account information, Customer agrees to these payment terms and conditions. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes AtlasX to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and require recurring payments. Fees will be charged on an annual, quarterly, or monthly basis based on Customer’s subscription. AtlasX may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has terminated the Service or AtlasX terminates the Service prior to the Service renewal date.
AtlasX may revise fee rates and/or the billable amount structure for the Service from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in fees at least thirty (30) days prior. Customer is responsible for providing complete and accurate billing information to AtlasX. Customer will be billed for the total number of unique users, including those with limited access. AtlasX may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on AtlasX’s net income) and AtlasX will charge tax when required to do so by law.
6. Term and Termination. Subject to earlier termination as provided below, this Customer Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. In addition, either party may terminate this Customer Agreement if: (a) the other party is in material breach and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. In the event that this Customer Agreement is terminated, (i) the rights granted to Customer pursuant to this Customer Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Customer Agreement: Sections 4(b) and (c), 6-9, 12, and 13.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS CUSTOMER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL ATLASX BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL ATLASX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10. Hosting of the Service; Export Restrictions. The Service is controlled and operated from facilities in the United States. AtlasX makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that AtlasX may transfer, store and process Customer Data in locations other than Customer’s country. AtlasX complies with the U.S. – E.U. Privacy Shield Framework and the U.S. – Swiss Privacy Shield framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal data from European Union member countries and Switzerland. To learn more about the Privacy Shield program and to view AtlasX’s Privacy Shield certification, please visit https://www.privacyshield.gov. The export and re-export of Content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.
11. Modifications. AtlasX may revise this Customer Agreement from time to time by posting the modified version on its website at least twenty (20) days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or AtlasX’s obligations unless affirmatively agreed to by Customer in advance. If, in AtlasX’s sole and reasonable discretion, the modifications being proposed are material, AtlasX will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Customer Agreement that do not include a reduction in Customer’s rights or AtlasX’s obligations hereunder, Customer agrees to be bound by such modifications.
12. Governing Law; Binding Arbitration and Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Customer Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. The parties agree that the Customer Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Customer Agrees to contact AtlasX to attempt to resolve the dispute in good faith. Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in New York, New York. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Customer Agreement, including, but not limited to any claim that all or any part of the Customer Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in New York, New York. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in New York, New York. Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Services (collectively, “IP Claims”) shall not be subject to arbitration.
For questions about these or any AtlasX terms or policies, email us firstname.lastname@example.org.