Terms of Service
Last updated : June 2, 2022
By accessing the Website and/or the Atman Platform or by signing or accepting the present Terms of service, you enter into an agreement, on behalf of yourself as a User and/or, as the case may be, on behalf of the organisation that you represent (“Customer”) with AtmanCo Inc. (“AtmanCo”) which operates the Atman Platform.
i. “Agreement” means these terms of service, as accepted by Customer and any relevant Purchase Orders;
ii. “Atman Platform” means the Atman Classic and the AtmanPro platform developed by AtmanCo and licensed to Customer in accordance with the provisions of this Agreement;
iii. “AtmanCo Data” means data created by AtmanCo, including data derived from Customer Data and Respondent Data, which does not include references to identifiable Customers or Users;
iv. “AtmanCo DPA” means the AtmanCo Data Processing Agreement as amended from time to time.
v. “Confidential Information”: has the meaning given to such term in Section 11 of this Agreement.
vi. “Customer Data” means any content, which may include Personal Data of Users or Respondents, that Customer or Users submit or transfer to the Atman platform in conjunction with the Products, including all data identifying Customers or Users, results of psychometric evaluations, surveys, polls, pictures and comments, but excluding Respondent Data;
vii. “Documentation” means all documentation, manuals, technical information and other materials describing the features and functionalities of the Atman Platform or the Products, including any training materials with respect to the Atman Platform or the Products;
viii. “Effective Date” means (i) for a User, the first date a User accessed the Atman Platform; or (ii) for a Customer, the date on which the Agreement is accepted by Customer and AtmanCo;
ix. “Personal Data” means information about and identified or identifiable individual or such other definition set forth in applicable privacy legislation;
x. “Privacy Statement” means the AtmanCo Privacy Statement explaining AtmanCo processing of Personal Data, as amended from time to time;
xi. “Products” means the Atman classic psychometric assessments and the AtmanPro psychometric assessments developed by AtmanCo and licensed to Customer in accordance with the provisions of this Agreement;
xii. “Purchase Order” means the documents, in any format, exchanged and accepted by the parties in connection with the purchase of psychometric tests and the use of the Atman Platform by Customer.
xiii. “Respondent Data” means data provided or inputted directly by a Respondent on the AtmanCo Platform, but excluding any data generated or derived from such data though the Services.
xiv. “Respondent” means any User invited by Customer to submit answers to psychometric assessments, surveys, comments and suggestions through the Atman Platform, including any employee of Customer;
xv. “Subscription Period” means the period of Subscription as specified on the Purchase Order, as such period may be extended or renewed in accordance with this Agreement.
xvi. “Subscription” means the Customer’s right to use the Atman platform and/or Products purchased or subscribed by Customer or licensed by AtmanCo to Customer as detailed on the Purchase Order.
xvii. “Update” means all upgrades, patches, revisions, modifications, enhancements, fixes, copies or additions to the Atman Platform.
xviii. “Users” means those individuals authorized or designated by the Customer to use the Atman Platform, including any account administrators, company manager, group manager and any Respondents as the case may be, including without limitation Customer’s employees, directors, officers, representatives, consultants, agents and customers.
The Atman Platform shall be used by Customer and its Users after purchase of Atman Products or through a subscription on the Atman Platform for a Subscription Period and other Subscription conditions as specified on the Purchase Order. Each Subscription may include Updates, professional services, support services, additional or tailored functionalities and applications, each of which is subject to the terms of this Agreement as applicable.
AtmanCo may add to, change or discontinue any component of the Atman Platform or the Subscription at any time; provided, however, that no such change shall materially increase Customer’s obligations or materially decrease Customer’s entitlements under this Agreement.
3. Fees and Payment
Customer shall pay AtmanCo the fees specified on the Purchase Order, in accordance with the timing, currency and method of payment specified therein.
Any amounts past due shall accrue interest at an annual rate of 18% or the maximum rate allowed by the law, whichever is lower.
AtmanCo shall be entitled to suspend the whole or part of the Subscription or the performance of the services if Customer is in breach of its obligation to pay any amount to AtmanCo and such breach continues for a period of 10 days after Customer is notified.
Other than as expressly provided herein, no refund shall be granted by AtmanCo to Customer. AtmanCo reserves its right to modify advertised fees and any associated charges without advance notice. Fees are net of any applicable federal, state and/or provincial taxes, unless specifically quoted or referenced in writing. Failure of AtmanCo to invoice an applicable tax shall not relieve Customer’s liability to pay same to AtmanCo.
4. Grant of License
Subject to the terms and conditions set forth in this Agreement, AtmanCo hereby grants to Customer a limited, nonexclusive, non-sublicensable, non-transferable and revocable right (the “License”), only for Customer’s own business activities or operations: (i) to use the Atman Platform, subject to all of the terms of this Agreement and only for the number of authorized products and services that are specified on the Purchase Order.
Customer shall be responsible for ensuring that the Users using the Atman Platform and the Products comply at all times with the provisions of this Agreement and Customer shall be responsible towards AtmanCo for all actions committed (intentionally or not) by Users in violation of this Agreement.
5. License Restrictions
The rights granted in Section 4 are subject to the following restrictions. Customer shall not, and will not permit its Users or other third parties to: (i) reverse engineer, disassemble, compile or decompile the Atman Platform and Products, or otherwise attempt to derive, reconstruct or discover any source code, underlying ideas, algorithms, file formats, programming of interfaces of the Atman Platform, by any means whatsoever; (ii) use unauthorized modified versions of the Atman Platform or use the Atman Platform to develop commercially competitive or similar products; (iii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Atman Platform; (iv) except as specifically provided herein, disclose, distribute, rent, lease, sublicense, assign, sell, transfer or otherwise make available the Atman Platform to any third party; (v) use the Atman Platform for commercial time-sharing, outsourcing, application service provider or service bureau use, unless previously agreed to in writing by AtmanCo or except as specifically provided herein; (vi) modify, translate, incorporate into or with other software or create derivative works of the Atman Platform, except as expressly authorized by AtmanCo; (vii) remove any product identification, copyright, trademark or other AtmanCo notices from the Atman Platform, except as expressly authorized by AtmanCo; (viii) use the output or other information generated by the Atman Platform for any purpose other than as contemplated by this Agreement or for purposes prohibited by applicable laws; (ix) use the Atman Platform for any purpose other than the purposes authorized hereunder or authorized in writing by AtmanCo; or (x) use the Atman Platform in any way that is contrary to or in violation of applicable local, state/provincial, federal and foreign laws, including without limitation those relating to privacy, electronic communications and anti-spam legislation.
If the Atman Platform is used by Customer for a trial period, the Atman Platform shall be used only for evaluation purposes and only during the trial period specified on the Purchase Order. Any use of the Atman Platform for other purposes or beyond the applicable trial period is strictly prohibited.
6. Audit Rights
AtmanCo reserves the right to monitor and audit Customer’s and its Users’ use of the Atman Platform for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by AtmanCo or a third party authorized by AtmanCo, at its own expense.
If AtmanCo’s monitoring activities or audit reveals that Customer’s or any User’s use of the Atman Platform is in breach of this Agreement, including any use in breach of any applicable law, AtmanCo may immediately suspend and discontinue Customer’s or a specific User’s access to the Atman Platform, at AtmanCo sole discretion and without notice to Customer. AtmanCo shall notify Customer of such suspension as soon as reasonably possible, which notice shall set out the circumstances of the suspension. If Customer rectifies the situation to AtmanCo’s satisfaction, then AtmanCo will reinstate access to the Atman Platform. If Customer does not rectify the situation within a reasonable period of time, then it shall be deemed a material breach of this Agreement and AtmanCo shall be free to terminate this Agreement in accordance with Section 18.
7. Subscription Period and Renewal
7.1 Time-based Subscriptions
The Subscription and this Agreement shall be valid for the Subscription Period, unless suspended or terminated by AtmanCo in accordance with the provisions herein. Upon expiration of the applicable Subscription Period and unless otherwise stated in the Purchase Order, the Subscription and this Agreement will be automatically renewed on the first day following the expiration of a subscription term (the “Renewal Date”) for the same Subscription Period as the expiring Subscription Period at the same conditions subject to modifications made pursuant to Section 7.4.
If the Subscription Period is equal or greater than 12 months, or if fees or conditions are modified by AtmanCo, AtmanCo shall send to Customer a prior notice of renewal at least 30 days before the Renewal Date, and thus if Customer no longer wishes to renew the Subscription and this Agreement, Customer is responsible for timely canceling its Subscription prior to automatic renewal.
7.2 Products based Subscriptions
Subscriptions based on the purchase of Products are determined in accordance with the number of Products purchased by Customer as specified on applicable Purchase Order(s). If Customer wishes to add additional Products used in the Atman Platform, Customer may at any time increase the number of the Products through the “billing” section of the Atman Platform or by contacting an AtmanCo Sales representative.
Products have a limited duration and expire after 12 months following the relevant Purchase Order. Products may only be used within their limited duration. When all Products purchased by a Customer have expired, the Customer can continue to have access to the Atman platform if (a) more Products are purchased, (b) the Customer agrees to pay a usage fee to continue using the Atman Platform. If none of the above conditions are met, AtmanCo will notify such Customer and the Customer’s Subscription and access to the Atman Platform will terminate without further notice after 30 days.
7.3 Free Trial
In the case of a Subscription made on a trial basis, the term of this Agreement shall be limited to the duration of the trial period identified in the Purchase Order and access to the Atman Platform shall be discontinued automatically and without prior notice at the end of the trial period.
7.4 Modifications to fees and conditions
AtmanCo may increase the fees payable by Customer or modify other conditions for any renewed or extended Subscription, upon not less than 30-days written notice prior to the renewal or extension.
7.5 End of Subscription
When a Subscription is terminated for any reason, the Customer will no longer have access to the Atman Platform and may only access Customer Data and data provided by AtmanCo to the Customer through the Atman Platform by downloading such data using the download feature available on the Atman Platform before the end of the Subscription. AtmanCo will keep backup copies of Customer Data for 30 days after the end of a Subscription and will make such copies available to Customer upon request upon payment of reasonable fees.
8. Additional Services
If the Purchase Order provides for the performance of additional services by AtmanCo or the provision or development of additional or adapted functionalities, the following provisions shall apply in connection with such additional services (in addition to the other provisions of this Agreement): (i) AtmanCo shall perform the services to Customer in accordance with currently accepted standards and practices for services of a similar nature and shall assign such personnel as may be required to render the services efficiently, and there shall be no other warranty, express or implied, applicable to such services; (ii) Customer shall furnish AtmanCo in a timely manner with data and information as may be required by AtmanCo for performing the services, and shall ensure that the information furnished to AtmanCo is complete and accurate, and AtmanCo shall be entitled to rely upon such data and information; (iii) Customer shall provide such assistance to AtmanCo as may be required by it for the carrying out of the services, including reviewing and approving promptly all works prepared and submitted by AtmanCo and (iv) additional fees shall apply in respect of such additional services.
9. License Transfer
Customer shall not transfer or assign any of the rights granted to it under this Agreement, the License, or any of its obligations pursuant hereto without AtmanCo’s prior written consent.
AtmanCo may, without Customer’s prior consent, assign its rights and obligations under this Agreement.
Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. AtmanCo shall be free to perform all or any part of this Agreement through one or more of its consultants or subcontractors.
10. Title, Retention of Rights and Intellectual Property
Customer and Users acknowledge that the Atman Platform and its Products, any Updates, derivative works thereof, custom configurations and functionalities, Documentation, AtmanCo Data all intellectual property related thereto and all other items delivered by AtmanCo under this Agreement or a Purchase Order, developed or provided by AtmanCo, shall remain the exclusive property of AtmanCo and its successors and assigns, and Customer and Users acknowledge that they have no right to or interest in such items other than as expressly granted herein. AtmanCo reserves all rights not expressly granted to Customer in this Agreement. Without limiting the generality of the foregoing, Customer and Users acknowledge and agree that if they suggest any new features, functionality or performance for the Atman Platform that AtmanCo subsequently incorporates into the Atman Platform, the Atman Platform incorporating such new features, functionality, or performance, and all intellectual property related thereto, shall be the sole and exclusive property of AtmanCo. To the extent that Customer or a User (as the case may be) is the first owner of intellectual property rights in such suggested new features, Customer or User (as the case may be), agrees to assign any such rights to AtmanCo.
Customer and Users further agree that the systems, methods of operation, configurations, Documentation and other information contained in the Atman Platform, the Products and Updates (other than proprietary information provided by Customer), are proprietary intellectual property of AtmanCo and are as such protected by national and international copyright, trade secret, trademark and patent laws. This Agreement or the use of the Atman Platform do not transfer any title in such intellectual property to Customer or Users and Customer and Users acknowledge that the License granted under this Agreement only provides a right of limited use under the terms and conditions of this Agreement.
11. Confidential Information
Customer acknowledges that the Atman Platform, the Updates and the Documentation contain confidential information of AtmanCo. Each party (and, in the case of Customer, its Users) shall retain in confidence all information received from the other party pursuant to or in connection with this Agreement that the other party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms of this Agreement or as authorized pursuant to this Agreement.
Without limiting the generality of the foregoing, Confidential Information shall include (i) information pertaining to the Products, the Atman Platform and relating to technologies, designs, procedures, techniques, products, software systems, methods, training and consulting service methodology, know-how, data, analyses, reports, accounts per activity area, trade secrets; (ii) content provided on the Atman Platform, including formative content provided by AtmanCo, lists and arrangement of skills and competencies available through the Atman Platform and (iii) all information received or concerning firms with which AtmanCo does business relating to one of the aforementioned elements.
Each party shall treat the terms and conditions of this Agreement as confidential and shall not (a) disclose, directly or indirectly, any Confidential Information of the other party to any person without the prior written approval of the other party, except to its employees or consultants who need to have access to such Confidential Information for the purposes of this Agreement and to its legal and financial advisors as required in the ordinary course of that party’s business; provided, however, that a party shall remain liable for any breach of the confidentiality obligations by any such person; or (b) use, disclose or make a copy of any of the other party’s Confidential Information otherwise than for the purposes of this Agreement, and each party must immediately notify the other party if it becomes aware of any unauthorized access to, or use or disclosure of, any of the other party’s Confidential Information.
Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the receiving party without reference to the disclosing party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information that is independently developed by either of the parties, provided that there is sufficient documented records to establish independent development or (iv) information required to be disclosed pursuant to applicable law, provided that, unless prohibited by law, any party required by law to disclose Confidential Information shall promptly notify the other party and reasonably cooperate with the other party to ensure that such disclosure is strictly limited to what is necessary and that reasonable measures are taken to ensure that the Confidential Information is kept confidential following the disclosure.
12.1 Customer Data
Customer represents and warrants that it owns or has obtained all necessary rights, title and interest, and obtained all necessary consents to transfer Customer Data in relation with the Agreement, and that Customer Data doesn’t infringe any third-party intellectual property right.
As between Customer, AtmanCo and Users, subject to the applicable rights of Users provided by law and subject to the license described below, intellectual property rights on Customer Data are owned by Customer and intellectual property rights on AtmanCo Data are owned by AtmanCo. Users and Respondents acknowledge that except for rights existing pursuant to privacy legislation or other rights pursuant to applicable law which may not be waived, Users cannot claim any proprietary right or right of ownership on Customer Data or Respondent Data provided to AtmanCo through the Atman Platform.
12.3 License on Customer Data
12.4 No License on AtmanCo Data
Other than expressly provided by the terms of a Subscription, Customer does not have the right to access or use AtmanCo Data. AtmanCo shall be free to use AtmanCo Data for any lawful purpose.
Users acknowledge that no rights or license is granted by AtmanCo to Users with respect to Customer Data and AtmanCo Data. Other than rights provided by law, Users do not have the right to access Customer Data or AtmanCo Data.
12.5 Protection of Customer Data
AtmanCo shall store and process Customer Data in accordance with its Privacy Statement and the AtmanCo DPA, as applicable. AtmanCo has implemented technical, organizational and administrative systems, policies and procedures as well as other measures detailed in the Privacy Statement and the AtmanCo DPA to help ensure the security, integrity, availability and confidentiality of Customer Data, and to mitigate the risk of unauthorized access to or use of Customer Data. Nonetheless, hosting data online involves risks of unauthorized disclosure, loss or exposure and, in accessing and using the Atman Platform, Customer assumes such risks, except for gross negligence or unlawful conduct of AtmanCo.
12.6 Telemetric Data from Atman Platform
Telemetric data related to how Users access and use the Website and the Atman Platform (including features and functions of the Website and the Atman Platform being used by Users, stack trace data and reports related thereto) does not constitute Customer Data, and the anonymized data derived from such telemetric data is owned by AtmanCo.
12.7 Personal Data
When using the Atman Platform and Products, Customer may transfer to AtmanCo Customer Data containing Personal Information. AtmanCo’s processing of Personal Data on behalf of Customer shall be governed by AtmanCo DPA, which is incorporated in these Terms of Service by reference. AtmanCo shall process Personal Data in accordance with the Privacy Statement.
12.8 Respondent Data Deletion
Customer agrees that AtmanCo may respond directly to request from Respondents with respect to Respondent Data. If AtmanCo removes Respondent Data from the Atman Platform following a request from a Respondent, other Customer Data relying in the removed Respondent Data may be affected or removed from the Atman Platform.
Customer grants AtmanCo the right to use Customer’s company name and logo as a reference for marketing or promotional purposes, including on its Website or blog and in other public or private communications with AtmanCo’s existing or potential customers. If Customer wishes to limit such right at any time, it shall notify AtmanCo at the following email: [email protected]. Customer retains all right, title, and interest in and to such company name and logo.
Customer and its Users are responsible for maintaining the confidentiality of the usernames and passwords provided by AtmanCo for accessing the various modules of the Atman Platform. Customer shall be responsible for all uses of any such usernames and passwords or any action taken under Customer’s accounts with AtmanCo, whether or not authorized by Customer. AtmanCo shall not be liable for any loss or damage arising from any unauthorized use of Customer’s accounts, usernames or passwords.
15. Warranties and Indemnification
Customer represents and warrants that (i) it is fully authorized to enter into this Agreement and that its Users are fully authorized to use the Atman Platform and the Products, (ii) Customer and its Users are and will remain in compliance with all applicable laws and regulations with respect to their activities related to this Agreement and the use of the Atman Platform and the Products, including but not limited to privacy laws, laws relating to the protection of personal information and data, anti-spam legislation, gaming and lottery rules and regulations, and it shall be Customer’s sole responsibility to ensure that the Products, interface and interactions of the Atman Platform comply with such laws and regulations; (iii) all media assets created, developed or provided to AtmanCo by Customer do not and will not breach any third party’s intellectual property rights or violate the privacy, publicity or other personal rights of others, and do not or will not contain any data or content that is illegal, defamatory, obscene, threatening, abusive, disruptive or hateful.
Customer shall indemnify, defend and hold harmless AtmanCo and its officers, employees, agents, representatives and affiliates from and against all losses, expenses, liabilities, claims, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to (i) any breach by Customer or any Users of any representations, warranties or other obligations set forth in this Agreement, or (ii) any media assets created, developed or provided to AtmanCo by Customer.
16. Limited Warranty
AtmanCo warrants and represents to Customer that it has the right to license the Atman Platform and Products to Customer. AtmanCo further warrants that during the applicable Subscription Period, the Atman Platform will perform substantially in accordance with the Platform’s functionalities and features as described in the Purchase Order.
Notwithstanding the foregoing, this limited warranty shall not apply in the following cases: (i) malfunctions, defects, or failures of the Atman Platform or Products resulting from misuse, abuse, accident, neglect, or improper operation or maintenance by Customer or its Users, theft, vandalism, acts of God, acts of terrorism, power failures, failure of our cloud and hosting services provider or surges, battery failures, wi-fi failures or insufficient wi-fi network, non-permitted alteration or modification, any other Customer’s, Users’ or third parties’ acts or omissions, or any causes beyond AtmanCo’s reasonable control; (ii) any defect not made known by Customer to AtmanCo as soon as practical after the defect first appears; (iii) the Atman Platform is not used in accordance with the Documentation and this Agreement; and (iv) Customer or its Users modify the Atman Platform or add other software that interferes with their operation. Customer acknowledges, accepts and agrees that no software (including the Platform) is error free.
AtmanCo’s sole liability and Customer’s sole and exclusive remedy for breach of the above warranty shall be, at AtmanCo’s sole option, to either (i) refund the fees paid by Customer for the Subscription or for the Products, on a pro rata basis; (ii) replace the defective Platform with a new compliant Platform; or (iii) repair or correct the nonconformity or defect reported in writing to AtmanCo; provided, however, that Customer provide AtmanCo with sufficient information (which may include access to Customer’s Devices) to reproduce the defect in the Platform. AtmanCo Minor discrepancies in the Documentation shall not constitute errors or defects in the Platform.
THE ATMAN PLATFORM IS PROVIDED “AS IS” AND ATMANCO EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, WARRANTY OF TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Customer ASSUMES THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE PLATFORM TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM THE PLATFORM. WITHOUT LIMITING THE FOREGOING PROVISIONS, ATMANCO MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE PLATFORM WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE PLATFORM WILL MEET ANY OR ALL OF CUSTOMER’S REQUIREMENTS, GOALS AND OBJECTIVES (INCLUDED ANTICIPATED REVENUES OR PROFITS DERIVED FROM THE USED OF THE PLATFORM), WHETHER OR NOT DISCLOSED TO ATMANCO.
17. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ATMANCO, ITS DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, LOSS OF DATA OR PROGRAMS, ECONOMIC LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED TO THIS Agreement OR THE USE OR INABILITY TO USE THE PLATFORM AND THE DEVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON AND RELATED CONTENT THROUGH THE PLATFORM OR OTHERWISE, OR ARISING OUT OF ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY), OR ANY BREACH OF STATUTORY DUTY, OR ANY BREACH OF WARRANTY OF THE ATMANCO, EVEN IF THE AtmanCo HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS Agreement AS BETWEEN THEM.
Customer agrees that in the event that AtmanCo is found liable pursuant to this Agreement, the maximum cumulative liability of AtmanCo under this Agreement for any claims made by Customer or a User in warranty, contract, tort, or otherwise, shall not exceed the total amount of all fees paid to AtmanCo by Customer during the three (3) month period preceding the occurrence of the event leading to such liability (or, if the payment of the fees is made on an annual basis, AtmanCo’s liability shall be limited to the value of the fees paid for the three month period preceding the occurrence of the event leading to such liability, on a pro rata basis). The limitation of liability provided in the preceding sentence shall not apply where such liability is caused by fraud, gross negligence or intentional breach by AtmanCo, or infringement by AtmanCo of any third party’s intellectual property. In the event any disclaimer, exclusion or limitation in this Agreement cannot be excluded or limited according to applicable law, then only such disclaimer, exclusion or limitation shall not apply to Customer and Customer shall continue to be bound by all the remaining disclaimers, exclusions and limitations.
18. Term & Termination
The Agreement is effective as of the Effective Date, and (i) for Customer, until all subscriptions terms to the Atman Platform have expired or until they are terminated by any or both Parties in accordance with Section 18.2 (Termination); or (ii) for a User, as long as he or she is accessing the Atman Platform (the “Term”).
The Agreement may be terminated:
- If Customer cancels its annual Subscription through its Atman Platform account or with an AtmanCo customer representative in accordance with the terms of this Agreement;
- If Customer or any User neglects or fails to perform or observe any of its obligations under this Agreement, including, without limitation, if Customer or any User uses the Platform or the Products in violation of the provisions of this Agreement, AtmanCo, in addition to other legal remedies it may have pursuant to this Agreement or applicable law, may terminate the Subscription, this Agreement and the License granted hereunder upon fifteen (15) days written notice to Customer should Customer fail to correct the default within such period, without further notice. In addition, AtmanCo may suspend Customer’s access to the Platform and Products immediately without notice if AtmanCo, in its sole discretion, believes that: (i) such suspension is required by law; (ii) Customer or any User has breached this Agreement; or (iii) there is a security or privacy risk to Customer or any User. Any suspension of Customer’s access to the Platform or Products shall not limit or waive AtmanCo’s rights to terminate this Agreement, the License or the Subscription.
- If Customer ceases doing business as a going concern, or if a petition is filed proposing the adjudication of Customer as a bankrupt or its reorganization pursuant to any applicable bankruptcy or insolvency law which is not opposed by the Customer or if opposed, is not discharged within 60 days of filing or such longer period as the proceedings for discharge are proceeding so long as the Customer is proceeding expeditiously to obtain such discharge, if Customer makes an assignment or composition with creditors, or if a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of its property, or if it is adjudged bankrupt, AtmanCo, in addition to other legal remedies it may have, may immediately terminate the Subscription, this Agreement and the License granted hereunder upon written notice.
18.3 Termination by Customer
Unless expressly provided otherwise in this Agreement, Customer may not terminate this Agreement or a Subscription prior to the expiration of its term. The Customer agrees that this Agreement may only be terminated before its term in case of breach by AtmanCo and that it may not be terminated under article 2125 of the Civil Code. In any event, any fees paid by Customer to AtmanCo for services to be rendered after the termination of this Agreement by Customer shall be considered liquidated damages for the early termination of the Agreement and not be subject to reimbursement, the whole without limiting other remedies available to AtmanCo, including obtaining compensation for any other damage suffered.
18.4 Effect of Termination
Upon the termination or expiration of this Agreement or the Subscription, for any reason, (i) AtmanCo shall be entitled to immediately deactivate Customer’s accounts, usernames and passwords and cancel access to Customer’s Products from the Atman Platform, without any liability, and (ii) Customer and the Users shall immediately discontinue the use of the Platform and Products and destroy or return to AtmanCo all Confidential Information of AtmanCo in its possession.
Notwithstanding any provisions herein, the termination of this Agreement by AtmanCo shall not limit Customer’s obligation to pay all of the applicable fees, nor entitle Customer to receive any refund, nor restrict AtmanCo from pursuing any other remedies available to it, including injunctive relief. The obligations of the parties that are intended by their nature to survive the termination of this Agreement shall survive indefinitely after the termination or expiration of this Agreement.
19. Consent to Communicate
AtmanCo is committed to protecting and respecting your privacy, and we’ll only use your personal information and that of your users to administer your account and to provide the products and services you requested from us. From time to time, we may contact you about our products and services, as well as other content that may be of interest to you as permitted by applicable law.
20. Consent to Process Data
21.1 Governing Law; Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada, without reference to conflicts of Iaw rules and principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute arising out of the interpretation or application of the terms of this Agreement or any breach thereof shall, unless it is settled by direct negotiation, be settled by the courts of the Province of Quebec, district of Montreal, which shall have exclusive venue and jurisdiction for such disputes, and the parties hereby submit to personal jurisdiction in such courts. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens in connection with any action brought in the foregoing courts. If AtmanCo prevails in any action or proceeding (including for collection) under this Agreement, then AtmanCo shall be entitled to recover from Customer, in addition to all other relief, its reasonable attorneys’ and other experts’ fees and expenses incurred with respect to such action or proceeding.
To the extent that any law by its terms as determined by a governmental authority of competent jurisdiction is in conflict with this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by the terms required by such law, statute, treaty, or regulation. If any provision of this Agreement shall be otherwise unlawful, void, or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. In either case, the remainder of this Agreement shall continue in full force and effect.
21.3 Export Administration
Customer agrees to comply fully with all applicable export laws and regulations of United States and Canada to ensure that neither the Platform nor any direct product thereof are used or intended to be used for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
21.4 Force Majeure
Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party.
21.5 Failure to Exercise Rights
The failure of either party to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver of such rights nor shall the same be deemed to be a waiver of any subsequent breach.
21.6 Election of Remedies
All rights and remedies, whether evidenced hereby, by law or in equity shall be cumulative and may be exercised singularly or concurrently unless otherwise stated herein. Failure of either party to enforce any provision hereof shall not prevent enforcement on any other occasion.
21.7 Entire Agreement
Each party has read this Agreement, has had the opportunity to obtain independent legal advice, agrees to be bound by it, and agrees that it constitutes, along with any applicable Purchase Order, the entire Agreement between the parties with respect to the subject matter hereof, superseding all proposals, negotiations, and communications, oral or written, between the parties with respect to the subject matter hereof. Any terms or conditions appearing on the face or reverse side of any Purchase Order, acknowledgment, or confirmation that are different from or inconsistent with those set forth in this Agreement shall not be binding on the parties, even if signed and returned, unless expressly stated that such other terms and conditions take precedence over conflicting terms of this Agreement.
Any notice or other communication required or permitted under this Agreement shall be given in writing and sent by email. Notices addressed to Customer shall be sent to the email address associated with Customer’s account on the Atman Platform and notices addressed to AtmanCo, shall be sent to [email protected]. Any such notice shall be deemed delivered the next business day after it is sent. Customer is responsible for maintaining access to the email address associated with its account on the Atman Platform and to change its email address as required.
Unless Customer has a superseding written agreement with AtmanCo, AtmanCo may amend the Agreement from time to time by posting a modified agreement on its Website, as its business evolves, and sending you a notice regarding the modified Agreement. Any revisions to the Agreement will become effective on the date indicated in the notice. Customer and Users can review the most current version of the Agreement at any time by visiting this page at https://atmanco.com/terms. If Customer or Users use the Atman platform or Products, as the case may be, after the effective date of any changes, such use or access will constitute the acceptance of the revised Agreement.
22. Additional Information
For more information, you may contact us by email at [email protected], or by mail at AtmanCo, 1050 de la Montagne #300, Montreal, QC H3G 1Y8.