ATMOS PRO SUBSCRIPTION TERMS

Last updated: July 12, 2018

These Subscription Terms (“Terms”) create a legal agreement between Simply Genius, LLC (“Company,” “us,” or “we”) and the entity or person placing accessing the Service (as defined below) ("Subscriber," or “you”).

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR YOU ARE BELOW THE AGE OF 21, YOU ARE NOT PERMITTED TO USE THE SERVICE.  BY ACCEPTING THE TERMS OR USING THE SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 21 YEARS OLD AND, IF SUBSCRIBER IS AN ENTITY, THAT YOU HAVE THE AUTHORITY TO BIND THE SUBSCRIBER TO THESE TERMS AND THE PRIVACY POLICY LOCATED AT HTTPS://SIMPLYGENIUS.COM/PRIVACY (COLLECTIVELY THE “AGREEMENT”).

  1. ACCESS AND USE OF THE SERVICES.

  1. Services. Company provides an infrastructure-as-code library of architectural patterns (“Recipes”) and tools (“Tools”) to enable its customers to easily provision, maintain and evolve their cloud infrastructure (“Infrastructure”) (collectively, the “Service”) . Additional “Service Descriptions” include an overview of the Service tiers and support, and may include service-specific additional terms. The Service Descriptions are incorporated into these Terms. The Service and website are provided via equipment and resources located in the United States and other locations throughout the world and you consent to having personal data processed by us in the United States and other locations throughout the world.

  1. Right to Use Service. You agree to use the Service in accordance with the use levels by which we measure, price and offer the Service as posted on our website or the Service Descriptions. You may use the Service only as permitted in these Terms. We grant you a limited right to use the Service, the Recipes, and the Tools only for the internal, business or personal purpose of creating your Infrastructure; which shall include the right to modify the Recipes as needed for your Infrastructure. If your employees or contractors (collectively your “Users”) use the Service, you warrant that you have the authority to bind those Users to the terms of this Agreement, and you will be liable if your Users do not comply with the Agreement.

  1. Limitations on Use.  By using the Service, you agree on behalf of yourself and your Users not to (i) modify, prepare derivative works of, or reverse engineer, the Service; (ii) knowingly or negligently use the Service in a way that abuses or disrupts our networks, user accounts, or the Service; (iii) transmit through the Service any obscene, offensive, pornographic, fraudulent, deceptive, defamatory, harassing, abusive, hateful, or unlawful material; (iv) use the Service in violation of our policies, applicable laws or regulations; (v) harvest, collect, or gather user data; or (vi) sublicense, disseminate, or otherwise share any Recipes or Tools obtained through the Service.

  1. Changes to Service; Additional Services. We reserve the right to cease updating existing Recipes or offering new Recipes, but will not materially reduce the core functionality or discontinue any Service unless we provide you with prior written notice. We may offer additional functionality to our standard Service or premium feature improvements for an additional cost. Any additional services you order will be subject to these Terms.

  1. Ownership of Intellectual Property. You acknowledge that we or our licensors retain all right, title and interest in the Service, the Recipes, and the Tools, and our name, logo or other trademarks (together, the “Company Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Company Marks or is similar to any of them. You further agree not to remove any proprietary rights notices contained within the Service or any Recipes or Tools. As between you and Company, you will own all right, title, and interest in the Infrastructure derived from the Recipes or Tools.

  1. SUBSCRIPTIONS, FEES AND PAYMENT.

  1. Subscriptions.  Access to the Service is purchased on a subscription basis at levels posted on our site or described in the Service Descriptions.

  1. Fees and Payment. You agree to pay all fees for the Service as set forth in the Service Descriptions. Any and all payments you make to us for access to the Service are final. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we, or our payment processor, may take steps to verify whether your payment method is valid, charge your payment card or bill you for all amounts due for your use of the Service, and automatically update your payment card information using software designed to do so in the event your payment card on file is no longer valid. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Account (as defined below) if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the Subscription prices for the Service. We will notify you of any price changes by publishing on our website, and sending an email to the address used to set up your Account. If you do not cancel your subscription prior to the date set forth in Section III.A below, the price changes will become effective as of the next billing cycle.

  1. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may also suspend or terminate your Account if you do not pay undisputed fees when due, and you agree to reimburse us for all reasonable costs and expenses incurred in collecting delinquent amounts.

  1. Taxes and Withholding. You are responsible for all applicable sales, value-added, goods and service, withholding, tariffs, and similar taxes (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Service, except those Taxes based on our net income, or Taxes for which you have provided an exemption certificate. We reserve the right to gross up the price for Service in any invoice, or require you to gross up your payment, if your withholding obligations prevent us from receiving the full Subscription price. Additionally, if you do not satisfy your Tax obligations, you agree that you will be required to reimburse us for any Taxes paid on your behalf, and we may take steps to collect Taxes we have paid on your behalf. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.

  1. TERM AND TERMINATION.

  1. Term.  Your initial subscription commitment commences on the date of subscription, and expires as set forth in the applicable Service Description. Unless you have a perpetual license, your Subscription will renew automatically unless you cancel no later than 30 days prior to the end of the then-current billing cycle. You may cancel at any time during a billing cycle; provided, however, that no refunds will be made for remaining days within the then-current billing cycle. In no event will termination relieve you of your obligation to pay any fees payable to Company for the period prior to the effective date of termination.  If we permit you to reinstate Service at any time after termination, you agree that you will be bound by the then-current Terms.

  1. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business; provided, however, that we may suspend or terminate your Account immediately in the event of your breach of Sections I.C, IV or V.

  1. Effect of Termination. If the Agreement is terminated for any reason, you must immediately discontinue all use of the Service. Termination will not affect any claim arising prior to the effective termination date. If we discontinue Service in accordance with Section I.D above, your Subscription will be terminated as of the next billing cycle. You agree to pay for any use of the Service past the date of expiration or termination.

  1. Survival.  The provisions of Sections VII (Disclaimers; Limitation of Liability), VIII (Indemnification), and IX (Additional Terms) will survive any termination of the Agreement.

  1. YOUR ACCOUNT.  In order to access the Service, you will be required to create an account (“Account”). You are solely responsible for all use of the Service by you and your Users. You are responsible for keeping all user names and passwords confidential. We are not liable for any loss that you may incur if a third party uses your password or account. We may suspend your Account or terminate the Agreement if you or your Users are using the Service in a manner that is likely to cause harm to the Service. You agree to notify us immediately in the event that any unauthorized access to the Service, or other security breach, occurs through your Account.

  1. EXPORT LAWS. The Service may be subject to export laws and regulations of the United States and other jurisdictions. You represent and warrant that you are not named on any U.S. government denied-party list. You further agree that you will not permit any User to access or use the Service in or by a national of a U.S.-embargoed country, or in violation of any U.S. export law or regulation.

  1. DISCLAIMERS; LIMITATION OF LIABILITY.
  1. Disclaimers. COMPANY PROVIDES THE SERVICE AND THE CODE “AS-IS,” AND DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICES OR THE CODE WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE SERVICES AND CODE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
  2. Limitation of Liability. COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE.
  3. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSIONS WILL NOT APPLY WITH RESPECT TO SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, OR TO THE EXTENT PROHIBITED BY LAW.
  1. INDEMNIFICATION. You agree to indemnify, defend and hold Company harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of any third party claim in connection with your use of the Service or your breach or alleged breach of any term of this Agreement.

  1. ADDITIONAL TERMS

  1. General Terms.  If any term of this Agreement is deemed unenforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary, or employment relationship between the parties. No person or entity not a party to the Agreement will be a third party beneficiary. Failure to enforce any right under the Agreement will not waive that right. Unless otherwise specified, remedies are cumulative. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.

  1. Security Emergencies. If we reasonably determine that the security of the Service may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Service and we will take action to promptly resolve any security issues. We will notify you of any suspension or other action taken for security reasons.

  1. Assignment. You may not assign your rights or delegate your duties under the Agreement either in whole or in part without our prior written consent.

  1. Entire Agreement.  The Agreement, including these Terms, Service Descriptions, and Privacy Policy sets forth the entire agreement between you and Company relating to the Service and supersedes all prior and oral and written agreements. We may update the Terms from time to time, which will be identified by the last updated date above. Your continued access to and use of the Service constitutes your acceptance of the then-current Terms.

  1. Governing Law. The Agreement will be governed accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of laws rules.

  1. Mandatory Arbitration.
  1. If you and Company are unable to resolve a dispute, controversy or claim related to this Agreement (“Dispute”) through informal negotiations within 30 days, either you or Company may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party.

  1. Notwithstanding the above, you and Company agree that arbitration will be limited to the Dispute between Company and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

  1. You and Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Company’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

  1. Contact us. If you have any questions about this Agreement, its terms, your Account or your rights hereunder, or if you have any complaints, please contact support@simplygenius.com.