This ATLASRTX SERVICE TERMS & CONDITIONS (together with any applicable SaaS Order Form issued, the “Agreement”), effective as of the date set forth on an applicable Order Form, is between AtlasRTX, LLC with a place of business located at P.O. Box 982827, Park City, Utah, 84098 (“AtlasRTX”), and the Client named in such SaaS Order Form (the “Client”) (collectively, the “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 the applicable SaaS Order Form:
- “Client” means the legal entity that has entered into this Agreement with AtlasRTX.
- “Client Data” means all data, content, and information 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 the Services.
- “Customer” means a Client’s customer or prospective customer.
- “Effective Date” means the date set forth on the 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.
- “Personal Data” means any information relating to an identified or identifiable individual.
- “SaaS 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, setting 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.
- “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, consulting and support services, 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 As part of the registration process, Client shall identify administrative user name(s) and password(s) for Client’s AtlasRTX account, as well as for sub-accounts for Users. AtlasRTX reserves the right to refuse registration of or cancel passwords, accounts, or access as it deems appropriate.
1.2 Subject to the terms hereof, AtlasRTX will provide Client with commercially reasonable Technical Support in accordance with the following terms: AtlasRTX will provide Technical Support to Client via electronic mail on weekdays during the hours of 9:00 a.m. through 5:00 p.m. Mountain time, with the exclusion of Federal Holidays (the “Support Hours”); Client may initiate a service ticket by emailing service@Atlasrtx.com; AtlasRTX will use commercially reasonable efforts to respond to all service tickets within one (1) business day.
1.3 Client consents to AtlasRTX’s application of all upgrades, enhancements, and new releases to the Software Platform and/or Services, and Client will cooperate timely with such application of upgrades, enhancements, and new releases as applicable.
1.4 Client consents to AtlasRTX texting, messaging, or otherwise communicating with Client, Users, or affiliates of Client at any time during the term of this Agreement. Message and data rates may apply.
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 time-sharing or service bureau purposes or otherwise for the benefit of a third party; distribute, sublicense, rent, lease, lend, or offer hosting services of AtlasRTX’s Software Platform and/or Service 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 shall 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 national and international laws related to AtlasRTX products, services, and technologies.
2.3 Client represents, covenants, and warrants that Client will use the Software Platform and 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/MMS texting, messaging, and/or webchat all supported by an A.I. chatbot. Client is solely responsible for content, consent, and for complying with all local, 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: (i) Do-Not-Call (DNC) list prohibitions; (ii) telemarketer licensing and bonding requirements; (iii) consumer cancellation rights; (iv) mandatory disclosures; (v) wireless calling restrictions; (vi) restrictions on the use of automatic telephone dialing systems and pre-recorded messages (i.e. robocalling or voice broadcasting); (vii) internal opt-out rules; (viii) intellectual property rights and restrictions; (ix) the California Consumer Privacy Act (CCPA); and (x) 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, defend, and hold harmless AtlasRTX against any damages, losses, liabilities, settlements, and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim, investigation, or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of the Software Platform and/or Services or use of the Software Platform and/or Services by Client’s agents, employees, managers, officers, owners, affiliates, or successors.
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. Notwithstanding the foregoing, Client acknowledges that AtlasRTX is taking active steps to ensure the compliance of Client in part by executing this Agreement. If AtlasRTX discovers evidence demonstrating that Client may have violated the law or suspects the same, AtlasRTX may suspend or terminate Client’s use of the Software Platform and/or Services immediately. Client understands and accepts that AtlasRTX may be required by law to disclose 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.
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, User account passwords (including, but not limited to, administrative and User passwords), files, and for all uses of Client’s account, User’s accounts, or Equipment.
2.6 Client and Client’s agents, employees, contractors, affiliates, managers, owners, successors, and associated third parties (the “Client Parties”) shall not attempt to create, build, manufacture, or otherwise produce any form of technology, service, product, or offering that competes directly or indirectly with the AtlasRTX’s Software Platform or the Services (the “Competing Technology”). If any of the Client Parties creates, builds, manufactures, or otherwise produces Competing Technology, Client shall or shall cause any and all profits or monies resulting from or arising out of such Competing Technology to be transferred to AtlasRTX without deduction from any amount due under this Agreement.
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, but is not limited to, 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 rights, titles, and interests in and to: (i) the Software Platform and/or Services, all improvements, enhancements, or modifications thereto; (ii) any software, code, applications, inventions, or other technology developed in connection with Implementation and Configuration Services or Technical Support; and (iii) 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 shall 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 may be billed for such usage with Overage Fees (charged as described in the SaaS Order Form and in this Agreement). Client shall 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 without 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 firstname.lastname@example.org. 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 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 or the maximum permitted by law, whichever is lower, on any outstanding balance, plus all expenses incurred in the collection of any outstanding balance and may result in immediate termination of Service.
4.3 AtlasRTX may be 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 and comply with any requests from AtlasRTX regarding information or monies to pay such taxes.
4.4 If the Client fails to pay the fees in accordance with the terms of this Agreement, AtlasRTX may, at its sole discretion, suspend delivery of the Service and/or Support Services until the overdue amounts, including any applicable interest or fee, have been paid in full. The rights granted herein are in addition to any other rights that AtlasRTX may have under the Agreement or at law.
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 (typically 12 months) unless either party requests termination at least thirty (30) days prior to the end of the current Service Term. In such event, this Agreement will expire at the end of the then current Service Term. If a Party has not given notice pursuant to this clause, this Agreement is automatically renewed for another 12-month period (Renewal Term). Notwithstanding the foregoing, Client shall pay to AtlasRTX an early termination fee of three (3) months of Service Fees in the event Client terminates this Agreement prior to the Service Term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written 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. By continuing to utilize our Software Platform and/or Services after any revisions become effective, and without objecting to the same, Client agrees to be bound by the revised Service Terms and Conditions.
5.4 Upon any expiration or termination of this Agreement, all corresponding rights, obligations, and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including, without limitation, all payment obligations) shall survive.
WARRANTY, DISCLAIMER, WAIVER, SEVERABILITY, AND ASSIGNMENT
6.1 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. AtlasRTX is under no obligation to provide advance notice in writing of any scheduled service disruption. 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; a natural disaster; 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.
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.
LIMITATION OF LIABILITY
7.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE PLATFORM AND SERVICES, AS WELL AS THE IMPLEMENTATION AND CONFIGURATION SERVICES, ARE PROVIDED “AS IS”. FURTHER, EXCEPT AS PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY 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 AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE.
7.2 ATLASRTX MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING: (A) THE SUITABILITY OR COMPLETENESS OF THE SERVICES, OR (B) THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES, OR (C) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT FOR CLIENT’S LIABILITY FOR PAYMENT OF FEES AND INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL AMOUNTS CLIENT HAS ACTUALLY PAID TO ATLASRTX IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. ATLASRTX IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO ALL THIRD-PARTY PRODUCTS THAT CLIENT USES. IN NO EVENT SHALL ATLASRTX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES. THIS SECTION DOES NOT APPLY TO A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8.1 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.
8.2 All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
8.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement unless otherwise agreed upon by the Parties in writing, and Client does not have any authority of any kind to bind AtlasRTX in any respect whatsoever.
8.4 In any action or proceeding to enforce rights under this Agreement the prevailing party will be entitled to recover costs and attorneys’ fees.
8.5 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 sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.1 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. In any dispute between the parties resulting from or arising out of this Agreement, the Parties mutually consent to the exclusive jurisdiction and venue of a state or federal court located in Salt Lake County, Utah.