ATOMS, INC.

TERMS OF SERVICE

Last Updated on May 7, 2019

These Terms of Service (“Terms”) govern your use of services provided by Atoms, Inc. (“we”, “us”, “our”, or “Company”), including without limitation our website, mobile or web applications, or other digital products that link to or reference these Terms (collectively, the “Services”). These Terms are a binding legal agreement between you or the entity you represent (“you”) and Company. In these Terms, “you” and “your” refer to you, a user of the Services. A “user” is you or anyone who accesses, browses, or in any way uses the Site.

Please be aware that these Terms include, among other things, a binding arbitration provision that requires you to submit to binding and final arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Please see Section 12, below.

These Terms refer to our privacy policy (“Privacy Policy”), hereby incorporated by reference, which also applies to your use of the Services and which sets out the terms on which we process any personal data we collect from you, or that you provide to us.

Please read these Terms carefully, as they may have changed. Though your access and use of the Services is governed by the Terms effective at the time, please note that we may revise and update these Terms from time to time in our discretion. If we make material changes to these Terms, we will notify you by email or by posting a notice on our website prior to the effective date of the changes. These Terms are to ensure that you will use the Services only in the ways in which we intend for it to be used.

By accessing or using the Services:

  1. You acknowledge that you’ve read, understood, and accept these Terms and any additional documents or policies referred to in or incorporated into these Terms, whether you are participating as a guest or as a registered user;
  2. If these Terms have materially changed since you last access or used the Services, you acknowledge and agree that your continued access or use of the Services constitutes your acceptance of the changed Terms;
  3. You represent and warrant that you are at least eighteen (18) years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or the entity that you represent; and
  4. You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
  1. Accessing the Site.

We grant you permission to access and use the Services subject to the restrictions set out in these Terms. It is a condition of your use of the Services that the information you provide is correct, current, and complete. Your use of the Services is at your own risk, including the risk that you may be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. You are responsible for making all arrangements necessary for you to have access to the Services. We may close your account, suspend your ability to use certain portions of the Services, and/or ban you altogether from the Services for any or no reason, and without notice or liability of any kind.

  1. Account Registration and Account Security.

Some or all of the Services and certain features or functionalities, may require you to register an account with us. When you do, we may ask you to provide certain registration details or other information about yourself. All such information is subject to our Privacy Policy.

Once you have an account, you are responsible for all activities that occur in connection with your account. You will treat as confidential your account access credentials and will not to disclose it to any third-party. You agree to immediately notify us if you have any reason to believe that your account credentials have been compromised or if there is any unauthorized use of your account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information.

You may not impersonate someone else to create an account, create or use an account for anyone other than yourself, permit anyone else to use your account, or provide personal information for purposes of account registration other than your own. In order to ensure we can protect and properly administer the Services and our community of users, we have the right to disable or close any user account at any time and for any reason or for no reason.

  1. Prohibited Uses.

You may use the Services only for lawful purposes and in accordance with these Terms. We are under no obligation to enforce the Terms on your behalf against another user. We encourage you to let us know if you believe another user has violated the Terms or otherwise engaged in prohibited or illegal conduct.

You agree not to, and will not assist, encourage, or enable others to use the Services:

  • For any commercial purpose, except as expressly permitted under these Terms.
  • To violate any applicable national, regional, federal, state, local, or international law or regulation.
  • To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material which:
      • Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
      • Infringe any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
      • Violate or assists in the violation of legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations, or that otherwise may be in conflict with these Terms and/or our Privacy Policy; or
      • Be likely to deceive or confuse any person.
  • Violate these Terms or any other rules or policies posted by us.
  • Reverse engineer any portion of the Services.
  • Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Services, except as expressly authorized by Company.
  • Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services.
  • Record, process, harvest, collect, or mine information about other users.
  • Access, retrieve, or index any portion of the Services for purposes of constructing or populating a searchable database.
  • Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose.
  • Use the Services to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature (collectively, “Viruses”).
  • Use the Services to violate the security of any computer network, crack passwords or security encryption codes.
  • Remove, circumvent, disable, damage, or otherwise interfere with any security-related features or other restrictions of the Services.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
  • Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Services.

The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing thirty (30) days’ prior written notice to us privacy@atoms.com, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.

  1.  IP Ownership.  We own the Services and all of our trademarks, logos, branding, and any other Content that we create in connection with the Services (“Company Content”), including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such Company Content and the Services (collectively, “Company IP”).  Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Company IP are retained by us.

We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other user of the Services. You understand that when using the Services, you will be exposed to text, images, photos, audio, video, location data, and all other forms of data or communication (“Content”) from a variety of sources, and that Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. We do not endorse any Content made available through the Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with such Content.

  1. Purchases. If you are buying any Purchases from us, the additional terms set forth in our Customer Addendum shall apply and is hereby incorporated by reference.
  2. Links to other Sites.

If there are other websites and resources linked to on the Services, these links are provided only for the convenience of our users. We have no control over the contents of those websites or resources, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the Terms and conditions of use for such websites.

  1. No Guarantee of Service.

Although we hope to make the Services available at all times in the future, there may be times when we need to disable the Site either temporarily or permanently. The Services may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability. Keep this in mind as Company will not be liable if all or any part of the Services is unavailable at any time, for any period of time. Also, from time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users. We cannot and do not make any representations or warranties with respect to the devices you use to access or use the Services, including with respect to device compatibility.

  1. Disclaimer of Warranties.

COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU FURTHER WAIVE AND HOLD HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "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" AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTIONS 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS…SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN…WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER…” AND (X) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “…NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY…”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.

  1. Limit of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE SERVICES.

  1. Indemnification.

You shall indemnify and hold harmless Company, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms or your use of the Services.

  1. Governing Law.

This Agreement shall be governed by the laws of the State of New York, without respect to its conflict of laws principles.

  1. Arbitration and Class Action Waiver.
    1. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any dispute with Company, you agree to first contact us at privacy@atoms.com and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Kings County, New York, unless you and Company agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
    2. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND
  2. General Terms.

These Terms constitute the sole and entire agreement between you and Company with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services. No waiver of these Terms by Company shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect. The Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Company’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void. The section titles in the Terms are for convenience only and have no legal or contractual effect.

  1. Contact.

All feedback, comments, requests for technical support, and other communications relating to the Services should be directed to: privacy@atoms.com. By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development that is owned by us, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Company and its users any claims and assertions of any moral rights contained in such Feedback.

* * * * *

Customer Addendum

If you purchase any products, services, including software as a service, or other Services from us (“Purchases”), you are and shall be subject to the additional terms below:

Purchases. You may place orders and make Purchases through the Services. You represent and warrant that all information you provide in connection with a Purchase is true and accurate. Company is not responsible for fulfilling any Purchases for which you provided information that is deceptive or incomplete, as determined by Company.

Payment; Fees. You shall pay the fees set forth on the confirmation page for your Purchase and any other fees applicable to your account (“Fees”). You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency. All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). You are responsible for all applicable Taxes that arise from or as a result of Purchases.

Payment; AtomsPay Overview. “AtomsPay”, the Installment Feature, which is made to you by Atoms (as defined in the Terms of Service), entitles you to complete a Purchase in three (3) installments as set out on your Payment Schedule.

Description of Installment Feature:

  • The Installment Feature allows you to pay for your Purchase over 3 installments as set out on your Payment Schedule. Installments are due every 2 weeks.
  • Applicable taxes that arise from a purchase are due at time of said Purchase. 
  • You must be over 18 years old and of the legal age of majority in your state of residence and be the authorized holder of an eligible US-issued debit or credit card to apply. 
  • All orders are subject to approval – for example, if you have any overdue payments, the Installment Feature will not be available to you.
  • Products that are eligible for AtomsPay include only those as specified on product pages and checkout flows. Products not eligible for AtomsPay will be charged upon Purchase.  
  • You can make repayments any time BEFORE the due date. Otherwise, payments will be attempted on the scheduled dates from your card pursuant to the payment authorization. If a payment is not successfully processed on or before the due date and remains outstanding for the applicable grace period, a late fee of up to $8 may be applied (these fees are capped at 25% of the original order value).
  • You are responsible for ensuring that you have sufficient funds via your Payment Method available to make Installment Payments on the dates specified in your Payment Schedule.

Payment; AtomsPay Eligibility.  To be eligible to use the Installment Feature, you must:

  • Be an individual who is at least 18 years old and of the legal age of majority in your state of residence (19 years old in Alabama or if you are a ward of the state in Nebraska);
  • Be a resident of the United States and reside within one of the 50 states or the District of Columbia;
  • Be capable of entering into a legally binding contract;
  • have a valid and verifiable email address and mobile telephone number;
  • provide a valid physical residential and delivery address in the United States;
  • be authorized to use the Payment Method provided; and create an Account and agree to Atoms Terms of Use and Privacy Policy.
  • You promise to pay the full amount of the purchase price in three Installment Payments as set forth above to the holder of this Agreement.
  • You agree that all information that you provide us is true, complete and accurate and you agree not to misrepresent your identity.
  • If your information, including your Payment Method information, changes, you agree to notify Atoms immediately.
  • You agree not to use the Installment Feature for any unlawful or fraudulent activity and to immediately contact our service provider Afterpay if you believe that your Payment Method may be subject to an unauthorized transaction, account takeover or other type of fraudulent activity or security breach. By using the Installment Feature, you agree that you will not do any of the following:
    • Engage in any activities related to the Installment Feature that are contrary to any applicable law or regulation or the terms of this Agreement;
    • Use the Installment Feature to accomplish a cash advance.
  • You agree to provide any information or documentation reasonably requested to verify your identity in connection with your order.
  • You authorize us to verify your identity and assess your capability to make payments according to the Payment Schedule in relation to all orders placed using the Installment Feature.
  • As part of the approval process and assessment as to whether or not you have the means to fulfill your obligation to make future payments according to the Payment Schedule, we reserve the right, directly or through third parties, to conduct an assessment of your Payment Method.

Payment; AtomsPay Late Payments. There are no Fees or interest associated with using the Installment Feature. However, if a payment is not paid prior to the Due Date as specified in your Payment Schedule, and the Installment Payment is not successfully processed on the Due Date, you will be responsible for the following fees (“Late Fees”):

  • If an installment payment is due in accordance with the Payment Schedule on a particular date (the “Due Date”) and remains unpaid for a period of ten days, a Late Fee of up to $8.00 will be imposed;
  • However, the aggregate sum of Late Fees associated with a particular order will not exceed 25% of the order value at the time of purchase.
  • Please note that the cap on Late Fees is calculated based on your order value at the time of purchase. Subsequent refunds or discounts provided by Atoms will not affect the calculation of Late Fees that you may owe.
  • You authorize us, to the extent permitted by law, to satisfy any monetary liability you owe us by (1) debiting your Payment Method at a later time or date in accordance with the Payment Authorization, (2) debiting any other debit or credit card for which you have provided details, (3) offsetting the payment amount against any amounts we may owe to you, or (4) any other legal means.
  • We may, in our sole discretion, reasonably delay the application of, or waive wholly or partly, any Late Fee. If Late Fees are or may be incurred as a result of our error, we will waive or refund such fees, as applicable.
  • If you fail to make payments in accordance with your Payment Schedule, we reserve the right to limit, restrict, suspend or terminate your access to the Installment Feature in the future.
  • We do not give any express warranty or guarantee as to the suitability, reliability or availability of the Installment Feature.
  • If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent.  If you are delinquent or have file or have instituted against you bankruptcy or insolvency proceedings, we may in our discretion, to the extent and at the time permitted by applicable law, deem you in default and accelerate the maturity of this Agreement and all payments due hereunder.

Shipping. You shall pay any additional shipping fees required by Company.

Returns. If you wish to return a Purchase, please follow the instructions here https://atoms.com/pages/faqs (“Return Instructions”). You are solely responsible for returning a Purchase in its original and resalable condition. Company may not refund Purchases returned than 30 days after the date of Purchase or that do not strictly adhere to the Return Instructions.