THESE TERMS OF SERVICE AFFECT YOUR LEGAL RIGHTS, SO PLEASE READ THEM CAREFULLY. IN PARTICULAR, SECTION 19 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
By accessing or using the websites, apps or other online services (collectively, the “Services”) of vAtomic Systems Inc. (“vAtomic,” “we,” or “us”), including vatomic.io and the vAtomic smart object technology that may be integrated in third-party apps and websites, you agree to be bound by these Terms of Service (“Terms”). If you do not agree to these Terms, you may not use the Services.
(a) Our Services enable users to store, distribute and manage digital goods (“Digital Goods”) made available by third parties or vAtomic. We are not responsible for the terms of sale or use associated with any Digital Goods made available by third parties (“Third-Party Goods”). Our technology provides a platform that enables you to store, distribute and manage Digital Goods either through websites and apps of vAtomic or through websites, apps or other online services of third parties that have integrated our smart object technology (collectively, the “Integrated Services”).
(b) Our Services are designed to allow you to own Digital Goods without restrictions on sale or other transfer. If you acquire a Third-Party Good with these kinds of restrictions, you should attempt to resolve the issue by contacting the provider of the Third-Party Good. Please also contact us at firstname.lastname@example.org to advise us of the issue, so that we may consider possible actions we could take to help resolve the issue.
If you are using the Services on behalf of any entity: (a) you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity will be responsible for breach of these Terms by you or any other employee or agent of such entity; and (b) references to “you” in these Terms refer to you and such entity, collectively.
You represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Services, and (c) have full power and authority to enter into these Terms and that in so doing, will not violate any other agreement to which you are a party.
In order to use certain areas or features of the Services, you will need to register for an account (“Account”). When registering for an Account, you cannot create an Account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim Account names on behalf of any business or individual that holds legal claim, including trademark rights, in those names. In connection with your creation of any Account, you will (a) provide accurate, current and complete Account information, (b) maintain and promptly update your Account information as necessary, (c) maintain the security of your password, (d) be solely responsible for all access and use of the Services via your Account, including unauthorized access, and (e) immediately notify us if you discover or otherwise suspect any unauthorized activities in connection with your Account or the Services.
(a) Unless otherwise indicated, the Services, including all text, videos, images, data, software, or other files, content and materials contained on the Services, are the proprietary property of vAtomic or our licensors and may be protected by U.S. and international copyright, patent, trademark and other laws.
(b) Subject to these Terms, vAtomic grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services for your own personal use. You will not: (i) permit any third party to access the Services via your Account; (ii) remove or alter any copyright, trademark, service mark or other proprietary notices on the Services; (iii), modify, copy, distribute, create derivative works of, publicly perform, publicly display, sell, timeshare, rent or lease the Services, in whole or in part; or (iv) otherwise use the Services other than for their intended purposes.
(c) Except as specified in these Terms, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of vAtomic or any third party, whether by estoppel, implication or otherwise.
Our Services may display or link to third-party content, advertisements, links, promotions, logos and other materials, including Third-Party Goods, (collectively, “Third-Party Content”). We do not control, endorse, or sponsor any Third-Party Content or Integrated Services or the third parties responsible for or referenced on the Third-Party Content or Integrated Services, including any provider of Third-Party Goods. We make no representations or warranties of any kind regarding Third-Party Content or any Integrated Services. Your interactions with Third-Party Content or any Integrated Services, and any third party that provides Third-Party Content or any Integrated Services (including any provider of Third-Party Goods), are solely between you and such third parties, and vAtomic is not party to and has no responsibility or liability with respect to any Third-Party Content or Integrated Services, including with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user of our Services or any provider of Third-Party Goods.
“vAtomic,” the vAtomic logo, any other vAtomic service names, logos or slogans that may appear on the Services, and the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, are trademarks, service marks or trade dress of vAtomic and our licensors, and may not be copied, imitated or used, in whole or in part, without our or the applicable trademark holder’s prior written permission. You may not use any metatags or other “hidden text” utilizing “vAtomic” or any other name, trademark or product or service name of vAtomic without our prior written permission.
We grant you a limited, nonexclusive, nontransferable, revocable right to create a text hyperlink to our Services, provided that such link does not portray vAtomic or our Services in a false, misleading, derogatory or otherwise defamatory manner, and that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. You may not use a vAtomic logo, trademark or other proprietary graphic of vAtomic to link to the Services without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any vAtomic trademark, logo or other proprietary information, including the images found on the Services, the content of any text or the layout or design of any page, or form contained on a page, on the Services without our express written consent.
You (a) will comply with all applicable laws in connection with your access and use of the Services, and (b) are solely responsible for your conduct while accessing or using the Services. You will not:
(a) The Services may include interactive features and areas that allow users to create, post, upload, share or store content, including, but not limited to, reviews, photos, videos, music, sound, text, graphics, code, items or other information and materials (collectively, “User Content”).
(b) You are solely responsible for any of your User Content and for your use of any interactive features and areas of the Services, and you represent and warrant that (i) you own all intellectual property rights (or have obtained all necessary permissions) to provide your User Content and to grant the licenses set forth herein; (ii) your User Content will not violate any third-party agreements or confidentiality obligations; and (iii) your User Content will not violate, infringe or misappropriate any intellectual property right or other proprietary right, including the right of publicity or privacy, of any person or entity.
(c) You will ensure that you do not provide User Content that:
(d) We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense. We also reserve the right, but have no obligation, to monitor interactions between you and other users via our Services.
You grant vAtomic a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and fully sublicenseable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and publicly display your User Content on the Services, our other online services, on third-party sites and online services, and in all other media or formats, whether now known or hereafter developed, for any purpose.
You may submit questions, comments, suggestions, ideas, original or creative materials or other information about vAtomic or the Services to us (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of vAtomic. vAtomic shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
(a) To the fullest extent permitted by applicable law, you will indemnify and hold harmless vAtomic and our respective employees, officers, directors, equity holders, parent companies, subsidiaries, and affiliates (collectively, the “vAtomic Parties”) from and against all claims of any kind, whether in tort, contract or otherwise, and all damages, costs and expenses (including attorneys’ fees) that arise from or relate to: (i) your use of our Services, including any of your User Content; (ii) any Feedback you provide; or (iii) your violation of these Terms.
(b) This indemnity obligation includes paying for vAtomic’s attorneys’ fees and other costs of investigating and defending Claims, and the costs of enforcing the indemnity obligation.
(c) This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and vAtomic.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT VATOMIC KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), TITLE AND NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE DIGITAL GOODS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR DIGITAL GOODS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY VATOMIC OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
(A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL VATOMIC OR ANY OF THE VATOMIC PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SERVICES OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM VATOMIC, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO VATOMIC’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); AND (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VATOMIC AND THE VATOMIC PARTIES (JOINTLY), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE GREATER OF (I) ANY COMPENSATION YOU PAY TO US FOR THE SERVICES; OR (II) $100 USD.
(B) THE LIMITATIONS OF SECTION 17(A) WILL NOT LIMIT OR EXCLUDE LIABILITY FOR DAMAGES (I) TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PROHIBITED UNDER APPLICABLE LAW; AND (II) ARISING FROM THE GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD OF VATOMIC.
We reserve the right in our sole discretion to modify, suspend or stop providing access to the Services (or any features or functionality of the Services) at any time without notice and without obligation or liability to you.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH VATOMIC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(a) Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and vAtomic (i) waive your and vAtomic’s respective rights to have any and all Disputes arising from or related to these Terms or the Services, resolved in a court, and (ii) waive your and vAtomic’s respective rights to a jury trial. Instead, you and vAtomic will arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
(b) Any Dispute arising out of or related to these Terms or the Services is personal to you and vAtomic and such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. A Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
(c) These Terms affect interstate commerce and the enforceability of this Section 19 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
(d) Each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to vAtomic shall be sent electronically to email@example.com. Your notice must include (i) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (ii) a description in reasonable detail of the nature or basis of the Dispute, and (iii) the specific relief that you are seeking. Our notice to you will be sent electronically to then-current email address associated with your Account and will include (iv) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (v) a description in reasonable detail of the nature or basis of the Dispute, and (vi) the specific relief that we are seeking. If you and vAtomic cannot agree how to resolve the Dispute within thirty (30) days, then either you or vAtomic may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19(a), file a claim in court.
(e) Except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, (i) any arbitration will occur in Santa Clara County, California, (ii) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (iii) that the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
(f) As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (ii) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
(g) The rules of JAMS and additional information about JAMS are available on the JAMS website. You either (i) acknowledge that you have read and understand the rules of JAMS, or (ii) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
(h) If any term, clause or provision of this Section 19 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 19 will remain valid and enforceable. Further, the waivers set forth in Section 19(b) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
(i) You have the right to opt out of binding arbitration within thirty (30) days of the date you first agreed to these Terms (based on the records maintained by vAtomic) by sending notice to: firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. If you opt out of binding arbitration, the terms of Section 20 will still be binding upon you.
These Terms and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California.
Each party reserves the right, upon notice to the other party, to terminate these Terms. Notice to vAtomic shall be provided to email@example.com. We may provide notice to you via the Services (e.g., by stating that your right to access the Services has been revoked) or to the email associated with your Account. All rights and licenses granted to you under these Terms will immediately be revoked upon termination.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
We reserve the right to amend these Terms from time to time in our sole discretion. We will provide notice of such amendments by posting the revised Terms to the Services and updating the “Last Updated” date at the top of these Terms. We may also provide additional notice of such amendments in our discretion. Your continued use of the Services will confirm your acceptance of the amended Terms. If you do not agree to the amended Terms, you must stop using the Services.
The following sections will survive the expiration or termination of these Terms: all defined terms and Sections 13, 14, 15, 16, 17, 19, 20, 22, and 24.