SERVICE Terms & Conditions
Effective: March 26, 2019
For SaaS Order Forms executed prior to March 26, 2019, please click here for the Standard Terms and Conditions
This AtlasRTX Service Terms & Conditions (together with any applicable SaaS Order Form issued, hereinafter, “Agreement”), effective as of the date set forth on an applicable Order Form (“Effective Date”), is between Mindshare Ventures, LLC dba AtlasRTX, with a place of business at PO Box 982827, Park City, Utah 84098 (“AtlasRTX”), and the Client named in such SaaS Order Form (“Client”) (collectively, “Parties”). Client’s access to and use of Services is conditioned upon Client’s acceptance of and compliance with this Agreement. By executing an applicable SaaS Order Form, Client agrees to be bound by this Agreement.
The following definitions apply to this Agreement and applicable Saas Order Form:
“Client” means the legal entity that has entered into this Agreement with AtlasRTX.
“Client Data” means all data and content submitted to AtlasRTX by Client, or by a third party on behalf of or for the benefit of Client (including Client’s customers, prospective customers, and website visitors, as applicable) to enable and utilize AtlasRTX’s Services.
“Client Services” means AtlasRTX consulting and support services provided to Client under this Agreement.
“Customer” means a Client’s customer or prospective customer.
“Effective Date” means effective as of the date set forth on an applicable SaaS Order Form.
“Implementation and Configuration Fees” means fees associated with Implementation and Configuration Services.
“Implementation and Configuration Services” means the on-boarding procedure that must be completed for Client to successfully utilize AtlasRTX Software Platform and/or Services.
“Order Form” means an ordering document, signed by duly authorized representatives of the Parties, that identifies, details, and/or describes the specific Services ordered by Client from AtlasRTX, sets forth the prices for the Services purchased by Client, and incorporates this Agreement. In the event of any conflict between the Order Form and this Agreement, this Agreement will govern.
“Personal Data” means any information relating to an identified or identifiable individual.
“Service Fees” or “Service Pricing” means the fees charged to Client for access to AtlasRTX’s Software Platform and/or Services, invoiced on a quarterly basis and billed on the first day of the quarter.
“Services” or “Services Ordered” means AtlasRTX’s Software Platform and/or Services, Client Services, Technical Support, or any other product or service provided by AtlasRTX to Client and may include the following: Advanced A.I. chatbot engagement through SMS text, messaging, and webchat.
“Software Platform” means AtlasRTX’s A.I. supported messaging platform.
“Technical Support” means any specialized support related to AtlasRTX’s Software Platform and/or Services.
“Trade Secret” means information that is not generally known or readily ascertainable to the public, has economic value as a result, and has been subject to reasonable steps under the circumstances to maintain its secrecy.
“User” means an individual employee, consultant, contractor, or agent of Client who has been authorized by Client to use AtlasRTX’s Software Platform and/or Services on behalf of Client and/or its Affiliates.
SERVICE AND SUPPORT
1.1 Subject to the terms of this Agreement, AtlasRTX will use commercially reasonable efforts to provide Client with Services in accordance with the Service Level Terms described below. As part of the registration process, Client will identify administrative user name(s) and password(s) for Client’s AtlasRTX account, as well as for sub-accounts for Client-authorized users. AtlasRTX reserves the right to refuse registration of, or cancel passwords, it deems inappropriate.
1.2 Service Level Terms: AtlasRTX’s Software Platform shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond AtlasRTX’s control will also be excluded from any such calculation. Client’s sole and exclusive remedy, and AtlasRTX’s entire liability, in connection with Software Platform availability, shall be that for each period of downtime lasting longer than one hour, AtlasRTX will credit Client 5% of Service Fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Client (with notice to AtlasRTX) recognizes that downtime is taking place, and continues until the availability of the Software Platfrom and/or Services is restored. In order to receive downtime credit, Client must notify AtlasRTX in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. AtlasRTX will only apply a credit to the month in which the incident occurred. AtlasRTX’s blocking of data communications or other Software Platform and/or Services in accordance with its policies shall not be deemed to be a failure of AtlasRTX to provide adequate service levels under the Agreement.
1.3 Subject to the terms hereof, AtlasRTX will provide Client with reasonable Technical Support in accordance with the following terms: AtlasRTX will provide Technical Support to Client via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Mountain time, with the exclusion of Federal Holidays (“Support Hours”).
Client may initiate a service ticket during Support Hours by calling 435-565-1005 or anytime by emailing Service@AtlasRTX.com. AtlasRTX will use commercially reasonable efforts to respond to all service tickets within one (1) business day.
1.4 Client consents to AtlasRTX’s application of all upgrades, enhancements, and new releases to the Software Platform and/or Services, and Client will timely cooperate with such application of upgrades, enhancements, and new releases, as applicable.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Client must not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, knowhow or algorithms relevant to any AtlasRTX Software Platform, Service, product, upgrade, software, documentation, or data; modify, translate, or create derivative works based on the Software Platform and/or Services (except as expressly permitted by AtlasRTX); use the Software Platform and/or Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; distribute, sublicense, rent, lease, lend, or use AtlasRTX’s Software Platform and/or Service or offer hosting services to a third party; remove any proprietary notices or labels; employ non-AtlasRTX software or technology in any way that would subject AtlasRTX’s intellectual property or technology to obligations beyond those included in this Agreement; work around any technical limitations in the Software Platform and/or Service; or take any other action with respect to the Services not expressly permitted under this Agreement.
2.2 Client may not remove or export from the United States or allow the export or re-export of the Software Platform and/or Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in Federal Acquisition Regulation (FAR) section 2.101, the Platform Software and related documentation are “commercial items” and according to Defense Federal Acquisition Regulation (DFAR) section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Client must comply with all applicable international and national laws, related to AtlasRTX products, services, and technologies.
2.3 Client represents, covenants, and warrants that Client will use the Software Platform and/or Services only in compliance with AtlasRTX’s standard published policies then in effect and all applicable laws and regulations. Client understands that AtlasRTX provides a Software Platform that enables Client to engage with Customers through SMS text, messaging, and/or webchat, all supported by an A.I. chatbot. Client is solely responsible for complying with all state, federal, and international laws and regulations including without limitation the Telephone Consumer Protection Act (TCPA), CAN-SPAM Act, Federal Trade Commission (FTC) Telemarketing Sales Rule (TSR), and General Data Protection Regulations (GDPR), as relevant and/or applicable. Client is also required to use the Software Platform and/or Services in full compliance with the following: (a) Do-Not-Call (DNC) list prohibitions; (b) telemarketer licensing and bonding requirements; (c) consumer cancellation rights; (d) mandatory disclosures; (e) wireless calling restrictions; (f) restrictions on the use of automatic telephone dialing systems and pre-recorded messages (i.e. robocalling or voice broadcasting); (g) internal opt-out rules; (h) intellectual property rights and restrictions; and (i) other product and industry specific rules and disclosures, as applicable. Although AtlasRTX has no obligation to monitor Client’s use of the Software Platform and/or Services, AtlasRTX may do so and may prohibit any use of the Software Platform and/or Services it believes may be (or alleged to be) in violation of the foregoing. Client hereby agrees to indemnify and hold harmless AtlasRTX against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of the Software Platform and/or Services.
2.4 By making any use of the Software Platform and/or Services, Client expressly warrants to AtlasRTX that Client is and shall continue to act in full compliance with the law. AtlasRTX does not assume responsibility for ensuring that Client’s marketing campaigns meet applicable legal requirements. AtlasRTX will not assume any liability if Client is ever held liable for any violation of law. Notwithstanding the foregoing, Client acknowledges that AtlasRTX has and is taking active steps to ensure the compliance of our Clients, in part by executing this Agreement. If AtlasRTX discovers evidence demonstrating that Client may have violated the law, AtlasRTX may suspend or terminate Client’s use of the Software Platform and/or Services immediately. Client understands that AtlasRTX may be required by law to provide certain information about Client if AtlasRTX receives a subpoena from a court or regulator with competent jurisdiction. AtlasRTX is under no obligation to object to the same, except in our sole discretion.
2.5 Client shall be responsible for obtaining and maintaining any equipment and/or ancillary services needed to connect to, access, or otherwise use the Software Platform and/or Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or Equipment.
CONFIDENTIALITY, PROPRIETARY RIGHTS, AND PRIVACY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of AtlasRTX includes non-public information regarding features, functionality, and performance of the Software Platform and/or Services. Proprietary Information of Client includes non-public data provided by Client to AtlasRTX to enable the provision of the Software Platform and/or Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 AtlasRTX shall own and retain all right, title, and interest in and to (a) the Software Platform and/or Services, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation and Configuration Services or Technical Support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, AtlasRTX shall have the right to collect and analyze Client Data and other information relating to the provision, use, and performance of various aspects of the Software Platform and/or Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and AtlasRTX will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software Platform and/or Services and for other development, diagnostic, and corrective purposes in connection with all of AtlasRTX’s offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, as allowable by law.
GENERAL COMMERCIAL TERMS
4.1 Client will pay AtlasRTX applicable fees set forth in the SaaS Order Form for the Services Ordered and for Implementation and Configuration Services in accordance with the terms therein. If Client’s use of the Software Platform and/or Services exceeds the scope of Services Ordered on the SaaS Order Form, or otherwise requires the payment of additional fees (“Overage Fees”) (per the terms of this Agreement and/or the SaaS Order Form), Client shall be billed for such usage with Overage Fees, charged as described in the SaaS Order Form and in this Agreement. Client agrees to pay the Service Fees, Implementation Fees, and any Overage Fees (collectively, “Fees”) in the manner provided herein. AtlasRTX reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the current Service Term, upon thirty (30) days prior notice to Client. If Client believes that AtlasRTX has billed Client incorrectly, Client must contact AtlasRTX no later than sixty (60) days after the closing date on the first invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to AtlasRTX’s Accounting Department at email@example.com. If Client makes payment via a credit card, Client authorizes AtlasRTX to charge Client’s credit card or bank account for all fees during the Service Term including a credit card processing fee of 3.9%. Client further authorizes AtlasRTX to use a PCI-compliant third party to process payments, and consents to the disclosure of Client’s payment information to such third party.
4.2 AtlasRTX may choose to bill through an invoice. Invoicing for Service Fees and Implementation Fees shall commence upon execution of the SaaS Order Form and continue in advance for the term set forth in the SaaS Order Form. Full payment for invoices issued in any given month must be received by AtlasRTX thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses incurred in the collection of any outstanding balance and may result in immediate termination of Service.
4.3 AtlasRTX is required to collect state sales tax from Utah companies or divisions of companies. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on AtlasRTX’s net income.
TERM, TERMINATION, AND MODIFICATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the SaaS Order Form and shall be automatically renewed for additional periods of the same duration as the Service Term unless either party requests termination at least thirty (30) days prior to the end of the current Service Term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Client will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination, AtlasRTX will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter AtlasRTX may, but is not obligated to (unless otherwise required by law), delete stored Client Data. All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5.3 AtlasRTX reserves the right, at its sole discretion, to modify or replace these Service Terms and Conditions at any time. If a revision is material, AtlasRTX will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at AtlasRTX’s sole discretion. By continuing to utilize our Software Platform and/or Services after any revisions become effective and receiving notice thereof, and without objecting to the same, Client agrees to be bound by the revised Service Terms and Conditions.
WARRANTY, DISCLAIMER, WAIVER, SEVERABILITY, AND ASSIGNMENT
6.1 AtlasRTX shall use reasonable efforts consistent with prevailing industry standards to maintain the Software Platform and Services in a manner that minimizes errors and interruptions and shall perform the Implementation and Configuration Services in a professional and skillful manner. The Software Platform and/or Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by AtlasRTX or by third-party providers, or because of other causes beyond AtlasRTX’s reasonable control, but AtlasRTX shall use reasonable efforts to provide advance notice in writing of any scheduled service disruption. However, AtlasRTX does not warrant that the Software Platform and/or Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from Client’s use of the Software Platform and/or Services. Neither party will be responsible for failure or delay of performance if caused by an act of war, hostility or sabotage; act of God; electrical, internet or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOFTWARE PLATFORM AND SERVICES, AS WELL AS THE IMPLEMENTATION AND CONFIGURATION SERVICES, ARE PROVIDED “AS IS” AND ATLASRTX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2 If any part of this Agreement or of a SaaS Order Form is determined to be invalid or unenforceable by applicable law, the invalid or unenforceable provision will be deemed severed and shall be inoperative; the remainder of the terms of this Agreement or SaaS Order Form continue and shall remain legal, enforceable, and binding on the Parties.
6.3 Failure to enforce any provision of this Agreement will not constitute a waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement or applicable SaaS Order Form, or the waiver by any party of any breach of said documents, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. A waiver on one occasion shall not be a waiver of any right or remedy on any future occasion.
6.4 This Agreement and applicable Saas Order Form is not assignable, transferable, or sublicensable by Client except with AtlasRTX’s prior written consent. AtlasRTX may transfer and assign any of its rights and obligations under this Agreement without consent.
7.1 AtlasRTX shall hold Client harmless from liability to third parties resulting from infringement by the Software Platform and/or Service of any United States patent or any copyright or misappropriation of any trade secret, provided AtlasRTX is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; AtlasRTX will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by AtlasRTX, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by AtlasRTX, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by AtlasRTX to be infringing, AtlasRTX may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights here under and provide Client a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ATLASRTX AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ATLASRTX’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO ATLASRTX FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ATLASRTX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind AtlasRTX in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if form sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.1 This Agreement shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.