Atomic Capital, Inc.

Terms of Service

 

(As of February 17, 2019)

 

Thank you for visiting Atomic Capital at atomiccapital.io (the "Website"), a property of Atomic Capital, Inc. ("Atomic Capital," "we" or "us"). These terms (the "Terms") are intended to make you aware of your legal rights and responsibilities with respect to your use of the services we make available on our Website (the “Services”), and your access to and use of the Website and any related applications whether existing now or in the future (the foregoing, including the Services, are collectively referred to herein as the "Properties").

 

By accessing or using the Properties, you agree to be bound by these Terms. These Terms constitute the complete agreement between you and us regarding the Properties. We reserve the right, in our sole discretion, to change, modify, or otherwise amend these Terms and any other documents incorporated by reference herein (the "Amended Terms") at any time. If the Amended Terms affect your rights, duties, and obligations under these Terms, we will provide reasonable advance notice before the Amended Terms become effective. You agree that we may notify you of the Amended Terms by posting them on the Properties, or communicating the Amended Terms through any method of written contact that we have established with you, and that your use of the Properties after the effective date of the Amended Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Amended Terms. Therefore, you should review these Terms and any Amended Terms before using the Properties. The Amended Terms will be effective as of the date specified in the Amended Terms, and will apply to your use of the Properties from that point forward. These Terms will govern any disputes arising before the effective date of the Amended Terms.  Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms.

 

1.         Use of the Properties

You agree to use the Properties only in compliance with these Terms and applicable law, and in a manner that does not violate our legal rights or those of any third party.

 

You agree that you will only use the Properties for your own use. You must be at least eighteen (18) years of age to use the Properties. Use of the Properties is void where prohibited.

 

Certain portions of the Properties may be secured or otherwise protected from access except for authorized users with valid login and password information. Entities or individuals without authorization attempting to access these portions of the Properties may be subject to prosecution.

 

2.         Account Creation

In order to use some of the features offered by the Properties, you may need to create an account (“Your Account”). Your Account may include a wallet which will contain the tokens related to investments you make through the Properties (the “Token Wallet”). Use of any personal information you provide to us through Your Account is governed by our Privacy Policy. You are entirely responsible for maintaining the confidentiality and security of Your Account, and you are responsible for all information, changes and updates submitted through Your Account, and all activities that occur in connection with Your Account. You agree to notify us immediately of any unauthorized use of Your Account by sending an email to operations@atomiccapital.io. 

 

When you create Your Account, you agree to only provide true, current, accurate, complete and not misleading information. You may not impersonate someone else, create or use an account for anyone other than yourself, provide any personal information than your own, create multiple accounts (except as otherwise authorized by us), or provide or use false information.

SynapseFI is our backend software provider, and partner of Evolve Bank & Trust (Evolve), member FDIC. SynapseFI’s API, and their relationship with Evolve, enables us to offer banking services and products. By agreeing to these Terms and our Privacy Policy, you also agree to SynapseFI’s terms and policies provided below.

SynapseFi Privacy Policy

SynapseFi Terms of Service

 

Subject to these Terms, we may (a) cancel or suspend your access to Your Account or the Properties generally; (b) cancel, suspend, or remove your access to certain features associated with Your Account; and/or (c) change the pricing related to use of the Properties; all at our sole and exclusive discretion, with or without prior notice, for any or no reason, and with no liability to you or any third party.

 

3.         The Service

The Properties provide you with an end-to-end digital asset issuance platform in compliance with the applicable US laws and regulations. This platform streamlines the process by which Investors participate in offerings and Issuers raise capital. The Properties are available to “Issuers” (defined as private companies that seek investments and offer securities on the Properties), “Investors” (defined as those who open an account in order to invest in an offering on the Properties), and “Users” (defined as those who visit the Properties but do not open an account).

 

Only Investors who comply with the applicable US laws and regulations may open an account and participate in any offerings on the Properties. Depending on the Issuer’s offering terms, Investors may need to qualify as an accredited investor (as defined under US laws and regulations) and may be asked to provide financial information and other documentation as proof of income and/or net worth. You acknowledge and agree that all information you provide to us is complete and accurate. Atomic Capital may also conduct background checks of Investors, including but not limited to, ‘know-your-customer’ and ‘anti-money laundering’ checks, via our third party service providers, as may be required by various US, foreign and international laws and regulations. In creating an Investor account and providing the requested information, you acknowledge and agree that Atomic Capital may conduct the required accreditation verification and background checks. Any personal information you provide during the account creation processes will be governed by our Privacy Policy. Atomic is under no obligation to create your account and may deny your account application for any or no reason without notice to you.

As an Investor, you further acknowledge and agree that you possess the degree of sophistication required to participate in private investments, can protect your interests, and are able and willing to bear the legal and financial risk, including the risk of complete loss of your investment. Securities offered on the Properties are not publicly traded and, therefore, are illiquid. Securities are subject to restrictions on resale and/or transfer including holding period requirements. Issuers may also, in some circumstances, issue additional securities which may have a dilutive impact on your investment. Private companies are not obligated to provide regular reporting and are not subject to the same regulatory oversight and supervision as a publicly traded company. Participating in a private investment requires tolerance for high risk, low liquidity, and long-term commitments. Investments are not FDIC insured, may lose value, and there is no bank guarantee. Investments in private companies may result in adverse tax consequence. Furthermore, the securities offered on the Properties have not been registered with the Securities and Exchange Commission (the “SEC”) and rely on various exemptions afforded by state and federal laws and regulations. Investors must read an Issuer’s offering, disclosure and transaction documents for more information and discuss any questions with each Issuer directly prior to investing. No assurance can be given that any offering currently qualifies or will qualify under one or more of such regulatory exemptions due to, among other things, the adequacy of disclosure and the manner of distribution, the existence of similar offerings in the past or in the future, or a change of any securities law or regulation that has retroactive effect. No governmental agency or regulatory body has reviewed or approved the offerings provided on the Properties, nor have they reviewed or approved the adequacy of the offering disclosures or whether the offering terms are fair. The exemptions relied upon for the offerings depend upon the accuracy of the representations of the Issuer. In the event that any such representations prove to be untrue, the registration exemptions relied upon by an Issuer in selling the securities might not be available and substantial liability to such Issuer would result under applicable securities laws for rescission or damages. These risks are non-exhaustive and are intended to highlight certain risks associated with investing in securities that are not registered with the SEC. WE STRONGLY ADVISE YOU TO CONSULT A LEGAL, TAX AND FINANCIAL PROFESSIONAL BEFORE INVESTING, AND CAREFULLY REVIEW ALL THE SPECIFIC RISK DISCLOSURES PROVIDED AS PART OF ANY OFFERING MATERIALS AND ASK THE ISSUER ANY QUESTIONS YOU MAY HAVE OR REQUEST ADDITIONAL INFORMATION.

You further acknowledge and agree that Atomic Capital does not evaluate, confirm, endorse or otherwise stand behind any materials, information or data provided on the Properties, whether such materials, information or data was furnished by Atomic Capital, an Issuer, or other third party. You may not treat any information you receive on the Properties as a representation of any kind by Atomic Capital on which you should rely. Atomic Capital is not qualified to provide legal, accounting, financial or investment advice, and no information provided to you by Atomic Capital can be so construed.

By using the Properties, you acknowledge and agree that in each instance Atomic Capital is not a party, a beneficiary, or otherwise a responsible entity for any matter whatsoever with respect to any investment between an Investor and an Issuer. Atomic Capital shall not be held liable to any party for any costs or damages arising out of or related to such transaction. Unless otherwise required by applicable laws and regulations, Atomic Capital shall retain the right, at its sole and exclusive discretion, to reject or accept any application from an Issuer, Investor, or User to use or participate on the Properties, for any or no reason at all.

 

Atomic Capital holds FINRA licenses and receives compensation from the purchase or sale of securities through the Properties. Atomic Capital is licensed under a registered broker-dealer, but is not an investment advisor or investment manager, and does not offer investment advice or recommend or otherwise suggest that any investor make an investment in a particular offering. Atomic Capital is licensed with LoHi Securities, a registered broker-dealer, member FINRA/SIPC, 1888 Sherman Street, Ste. 770; Denver, CO 80203 USA. 720-465-5305. LoHi Securities and Atomic Capital are not affiliated entities.

 

4.         Fees

When an Investor participates in an Issuer’s offering that is made available on the Properties, the Investor shall be charged a percentage fee (the “Fees”) based on the Investor’s total invested funds in the Issuer’s offering (the “Invested Funds”). The Fees shall be in addition to the Invested Funds and shall be charged at the time of investment. Pricing of the Fees shall be provided to the Investor at the time of Investment. All Fees must be paid in the same currency as the Invested Funds. You acknowledge and agree that all Fees are non-refundable to you.

 

Investors can make investments of Invested Funds using United States Dollars (“USD”), Bitcoin (“BTC”) or Ether (“ETH”) (BTC and ETH collectively, the “Digital Currency”). Invested Funds are held by our third-party custodian. Additional processing fees may be incurred for USD or Digital Currency transfers. USD investments can be made through the payment options made available during the investment process (for example, wire or automated clearing house transfers). If the Invested Funds are in a Digital Currency, the amount of Digital Currency required for the investment shall be determined by our payment provider at their then current USD/Digital Currency exchange rate. You are solely responsible for sending the correct amount of Digital Currency to complete the payment.

 

If your investment is cancelled or refunded, you agree to accept the amount of Digital Currency currently equivalent to the allocated USD investment. When refunded, you will receive a quantity of the Digital Currency with equivalent value to the Invested Funds based on the current USD/Digital Currency exchange rate, which may be a different quantity of Digital Currency than you initially sent. The time of the conversion of USD/Digital Currency will be at the time a cancellation occurs or a refund is requested.

Atomic Capital shall, in its sole and exclusive discretion, make the determination whether investments in Digital Currency are permitted for any offerings provided on or through the Properties.

 

5.         Intellectual Property Rights

 

5.1 Intellectual Property Rights

The Properties are owned and operated by Atomic Capital and its licensors and the data, text, graphics, designs, logos, images, audio/visual materials, links, and references (as well as any intellectual property and other rights relating thereto) accessible through the Properties (collectively, the “IP Rights”) are and will remain the property of Atomic Capital and its licensors and suppliers.  The IP Rights are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable.  Except as set forth in these Terms, you may not copy, reproduce, modify, adapt, translate, republish, upload, post, transmit, distribute, sublicense, sell, reverse engineer, decompile, or disassemble any part of the Properties or IP Rights without our prior written permission.  The IP Rights and the Properties may be used solely (a) to the extent permitted in these Terms, or (b) as expressly authorized in writing by us or, if so indicated in writing by us, our licensors or suppliers.  Use of the Properties or IP Rights for any other purpose is strictly prohibited.  You acknowledge that you do not acquire any ownership rights by using the Properties or IP Rights.

 

5.2 Trademarks

The trademarks, logos, and service marks displayed on the Properties (collectively, the “Trademarks”) are the registered and unregistered trademarks of Atomic Capital, our licensors and partners, and/or others.  Nothing contained in these Terms or the Properties should be construed as granting, by implication, estoppel, or otherwise, any license, right to use or any other rights in the Trademarks without the express written permission of Atomic Capital, its licensors or partners, or the third party owner of the Trademarks, except as set forth in these Terms.  You agree that the Trademarks are protected by U.S. and international trademark laws, and various other intellectual property and unfair competition laws.  

 

6.         Copyright Infringement

If you believe that your copyright has been or is being infringed upon by material found in the Properties, you are required to follow the below procedure to file a notification pursuant to the U.S. Digital Millennium Copyright Act (the "DMCA"). You may be subject to liability under Section 512(f) of the DMCA if you knowingly make any misrepresentations on a take-down notice:

a.    Identify in writing the copyrighted material that you claim has been infringed upon;

b.    Identify in writing the material on the Properties that you allege is infringing upon copyrighted material, and provide sufficient information that reasonably identifies the location of the alleged infringing material (for example, the user name of the alleged infringer and the business listing it is posted under);

c.    Include the following statement: "I have a good faith belief that the use of the content on the Properties as described above is not authorized by the copyright owner, its agent, or law.";

d.    Include the following statement: "I swear under penalty of perjury that the information in my notice is accurate and I am the copyright owner or I am authorized to act on the copyright owner's behalf."

e.    Provide your contact information including your address, telephone number, and e-mail address (if available);

f.     Provide your physical or electronic signature; and

g.    Send written communication to:

Atomic Capital, Inc.

208 W 30th St

Suite 702

New York, NY 10001

info@atomiccapital.io

 

7.         Restrictions on Use

Without limiting the generality of these Terms, you specifically agree not to, nor permit a third party to, do the following while using the Properties:

 

We may at any time in our sole discretion: (i) access, preserve, or disclose in accordance with our Privacy Policy any materials that you provide or deliver including information that may be collected from you from your web browser or mobile device; (ii) suspend or terminate your access to and use of the Properties or any of their features in response to a breach of these Terms, or for any or no reason; or (iii) take any other lawful action in response to a breach of these Terms.

 

8.         Term and Termination

 

8.1 Term

The Terms are effective from the date you agree to them by accessing the Properties and continue so long as you use our Properties or until terminated by you or us.

 

8.2 Termination

You may terminate these Terms by closing Your Account at any time by following the instructions on our Properties in your account profile. We may suspend or terminate these Terms and close Your Account at any time for any or no reason, with or without notice.

 

8.3 Effect of Termination

Upon termination and closing of Your Account, we will immediately discontinue your access to the Properties and you agree to immediately cease your use of the Properties. If the closing of Your Account is without cause, you will retain access to your Token Wallet and any tokens contained therein. You may transfer the tokens from your Token Wallet to other third party wallet holders that comply with the applicable laws and regulations, as determined in our sole and exclusive discretion. If termination and closing of Your Account is with cause, as determined in our sole and exclusive discretion, we reserve the right to prevent your access to your Token Wallet pending, to our sole and exclusive satisfaction, the resolution of any legal or regulatory proceeding. Termination does not relieve you of your obligations as defined in these Terms. In addition, upon termination, we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, that we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Properties, or any termination or suspension of the Properties or deletion of your information or account data, and that you are still liable to us for any amounts incurred by you or through your use of our Properties prior to termination.

 

9.        Privacy and Security

9.1 Privacy Policy

Please review our Privacy Policy for details on information we may collect about you and the software(s) and hardware(s) you are using. It is important that you read and understand the terms of our Privacy Policy.

 

9.2 Our Security

We make efforts to maintain the security of our Properties. For example, we arrange for encryption, firewall, antivirus, and spyware protection to the extent that we deem advisable to protect your personal information and conduct our business. However, we do not guarantee the security of the Properties, our records, your submissions, or anything else. We disclaim all liability for any computer virus or technological problems that we do not intentionally cause. You are encouraged to install and maintain up-to-date security software on your computer.

 

10.      United States of America Only

 

If you are located outside of the United States, you use or access the Properties solely at your own risk and initiative. The Properties are controlled and operated from facilities within the United States. Atomic Capital makes no representations that the Properties are appropriate or available for use in any other jurisdictions. Accessing the Properties is prohibited from territories where the Properties are prohibited. Securities offerings are only directed at, or intended for purchase or investment by investors in jurisdictions that permit general solicitation of unregistered securities. You acknowledge and agree that it is solely your responsibility to be aware of the applicable laws and regulations of your country of residence. Subscriptions to invest in any offering referred to on the Properties must only be made on the basis of the offering document relating to the specific investment and through a registered entity. The content, material and information contained on the Properties does not constitute an offer or solicitation and may not be treated as an offer or solicitation (i) in any jurisdiction where such an offer or solicitation is against the law; (ii) to anyone to whom it is unlawful to make such an offer or solicitation; or (iii) if the person making the offer or solicitation is not qualified to do so. The securities offered on the Properties can only be marketed in certain jurisdictions. You acknowledge and agree that it is solely your responsibility to be aware of the applicable laws and regulations of your country of residence.

 

11.      Disclaimer of Warranties and Limitation of Liability

 

11.1 Disclaimer of Warranties

YOU ACKNOWLEDGE AND AGREE THAT THE PROPERTIES ARE BEING PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND MAY INCLUDE CERTAIN ERRORS, OMISSIONS, INACCURACIES, OR OUTDATED INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT ATOMIC CAPITAL DOES NOT ENDORSE, WARRANT, OR ASSUME RESPONSIBILITY FOR ANY INFORMATION OR MATERIAL MADE AVAILABLE ON THE PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT ATOMIC CAPITAL DOES NOT WARRANT AGAINST ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PROPERTIES, ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, ANY FRAUDULENT, DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE PROPERTIES.

ATOMIC CAPITAL MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL MADE AVAILABLE ON THE PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT THE INFORMATION AND MATERIAL MADE AVAILABLE ON THE PROPERTIES HAVE NOT BEEN INDEPENDENTLY VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY ATOMIC CAPITAL. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROPERTIES AND ANY INFORMATION OR MATERIAL CONTAINED ON THE PROPERTIES, WHETHER PROVIDED BY ATOMIC CAPITAL OR A THIRD PARTY, IS PROVIDED TO YOU ON AN "AS IS" AND "WHERE-IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES OF TITLE ARE HEREBY DISCLAIMED. WE MAKE NO REPRESENTATION THAT THE INFORMATION OR MATERIAL ON THE PROPERTIES CONFORM TO YOUR LOCAL LAWS, AND IF YOU ARE ACCESSING THE PROPERTIES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ALONE ARE RESPONSIBLE FOR COMPLIANCE WITH YOUR LOCAL LAWS. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.

11.2 Limitation of Liability

IN THE CASE OF NEGLIGENCE, NEITHER ATOMIC CAPITAL NOR ANY OF ITS RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, USERS, PARTNERS, AFFILIATES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, SUPPLIERS, ATTORNEYS, OR AGENTS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FORM OF DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR RELATED TO THE USE OR ATTEMPTED USE OF THE PROPERTIES, INCLUDING BUT NOT LIMITED TO, TECHNICAL ERRORS, ACCIDENTAL ERRORS, YOUR INABILITY TO ACCESS THE PROPERTIES, THE RESULTS OF YOUR USE OF THE PROPERTIES, OR ANY EXTERNAL WEBSITES LINKED TO THIS PROPERTIES, OR THE INFORMATION OR MATERIAL MADE AVAILABLE ON THE PROPERTIES, HOWEVER ARISING, WHETHER FOR BREACH OR IN TORT, EVEN IF ATOMIC CAPITAL WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

IN THE CASE OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, STRICT LIABILITY, OR ANY OTHER THEORY OF LAW OR EQUITY, NEITHER ATOMIC CAPITAL NOR ANY OF ITS RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, USERS, PARTNERS, AFFILIATES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, SUPPLIERS, ATTORNEYS, OR AGENTS SHALL BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES (INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES) BEYOND ONE HUNDRED US DOLLARS AND NO CENTS ($100.00). REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE PROVIDED HEREIN.

12. Electronic Signature

The Federal Electronic Signatures in Global and National Commerce Act (“ESIGN”) and similar state laws, particularly the Uniform Electronic Transactions Act (“UETA”), authorize the creation of legally binding and enforceable agreements utilizing electronic records and signatures. ESIGN and UETA require businesses that want to use electronic records or signatures in consumer transactions to obtain the consumer’s consent to receive information electronically. When you register on the Properties, we obtain your consent to transact business electronically and maintain electronic records in compliance with ESIGN and UETA requirements.

Your use of electronic signatures to sign documents legally binds you in the same manner as if you had manually signed such documents. The use of electronic versions of documents fully satisfies any requirement that such documents be provided to you in writing. If you sign electronically, you represent that you have the ability to access and retain a record of such documents. You agree that you are responsible for understanding these documents and agree to conduct business by electronic means. You are obligated to review the Properties periodically for changes and modifications and agree not to contest the admissibility or enforceability of the Properties’ electronically stored copy of this Agreement in any proceeding arising out of this Agreement.

Although you consent to electronic delivery, you may elect to deliver communications by other means and such delivery shall not affect your consent. You may revoke consent to electronic delivery of communications and receive a paper version at your election. Atomic Capital shall have a reasonable period to effect such a change and Atomic Capital may charge you a reasonable fee for sending such paper copies. If you elect to use electronic delivery, you agree and represent that you have a suitable computer with Internet access, an email address and the availability to download, save and/or print communications to retain a record of such communications. You agree that you are solely responsible for maintaining such equipment and services required for online access.

13.      Miscellaneous

 

13.1 Indemnity

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ATOMIC CAPITAL, AND ITS LICENSORS, SUPPLIERS, AGENTS, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES) ARISING FROM YOUR USE OF, ACCESS TO, AND PARTICIPATION IN THE PROPERTIES; YOUR VIOLATION OF ANY PROVISION OF THESE TERMS, INCLUDING THE PRIVACY POLICY; AND YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING, WITHOUT LIMITATION, ANY COPYRIGHT, PROPERTY, PROPRIETARY, INTELLECTUAL PROPERTY, OR PRIVACY RIGHT. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE THESE TERMS AND YOUR USE OF THE PROPERTIES.

 

IF YOU HAVE A DISPUTE WITH ONE OR MORE THIRD PARTY, YOU FOREVER RELEASE ATOMIC CAPITAL, AND ITS LICENSORS, SUPPLIERS, AGENTS, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND AGENTS, FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE PROPERTIES, IP RIGHTS, AND CONTENT, OR YOUR PARTICIPATION IN OR USE OF ANY PROVIDED ON OR THROUGH THE PROPERTIES.

 

13.2 California Residents

If you are a California resident, you waive California Civil Code Section 1542, which states the following: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” If you are not a California resident, you waive your rights under any statute similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.

 

Furthermore, pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Atomic Capital must be sent via certified mail to:

Atomic Capital, Inc.

21 West 46th Street

11th Floor

New York, NY 10036

California residents may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Boulevard, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

 

13.3 Data Fees

Data Fees Data, messaging, or other ISP and carrier fees may apply in your use of the Properties through a mobile device.

 

13.4 Interpretation

The section and subject headings in these Terms are included for reference only and shall not be used to interpret any provisions of these Terms. These Terms shall not be construed against us on the grounds that we conducted or arranged for the drafting of the Terms. Nothing contained in these Terms will be deemed to constitute Atomic Capital or you as the agent or representative of the other or as joint venturers or partners

 

13.5 Governing Law/Dispute Resolution

These Terms will be governed by and construed in accordance with the laws of the State of New York, excluding that body of law relating to conflict of laws. In the event of any claim, controversy or alleged dispute between you and Atomic Capital, its directors, shareholders, officers, managers, employees, successors, assigns, subsidiaries, affiliates, suppliers, or agents, (the “Dispute”), you hereby agree to attempt in good faith to amicably resolve any Dispute at least 30 days before instituting any legal proceeding. In the event no resolution to the Dispute can be reached through such process, the Dispute shall thereafter be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (the “Commercial Rules”). The award rendered by the arbitrator shall be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. Judgment on the award shall be final and non-appealable. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules. The seat or place of arbitration shall be New York City, New York. The arbitration shall be conducted and the award shall be rendered in English. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any Dispute or arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator will have no authority to award punitive damages, consequential damages, liquidated damages, or compensatory damages exceeding one hundred US dollars and zero cents ($100.00). The foregoing notwithstanding, nothing in this paragraph shall affect our ability to seek a court injunctive or equitable relief at any time. Neither Atomic Capital nor you are entitled to arbitrate any dispute or claim as a class, representative or private-attorney action and the arbitrator shall have no authority to proceed on a class, representative or private attorney basis. Furthermore, to the full extent permitted by law, no arbitration shall be joined with another nor shall it be brought in a purported representative capacity on behalf of the general public or any other persons. Where permitted by law, you hereby waive your rights to a jury trial.

 

13.6 Entire Agreement

These Terms, together with the Privacy Policy and any other legal notices or additional policies as may be published by Atomic Capital on the Properties, shall constitute the entire agreement between you and Atomic Capital.

 

13.7 Third-Party Beneficiaries

These Terms does not confer any third-party beneficiary rights.

 

13.8 Force Majeure

Atomic Capital shall not be liable to you for any delay or failure in performance under these Terms, arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.

 

13.9 No Assignment

Neither these Terms nor any right, obligation, or remedy hereunder is assignable, transferable, delegable or sub-licensable by you except with our prior written consent, and any attempted assignment, transfer, delegation, or sublicense will be null and void. Atomic Capital may assign, transfer, or delegate these Terms or any right, obligation or remedy hereunder in its sole discretion.

 

13.10 Severability

If any provision of these Terms is deemed unlawful, invalid, or unenforceable by a judicial court for any reason, then that provision shall be deemed severed from these Terms, and the remainder of the Terms shall continue in full force and effect.

 

13.11 Waiver

Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any term or condition of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. Nothing in these Terms waives or limits extra-contractual rights or remedies available to us to protect our rights or property, including, but not limited to, those available under U.S. copyright law, international treaties or copyright or intellectual property laws of the countries in which the Properties is used.

 

13.12 Notices

You agree that Atomic Capital may provide you with notices, including those regarding changes to this Agreement, by email, regular or expedited mail, text communication, website postings or other means of communication