Last Updated: February 12, 2020
These Terms provide that all disputes between you and Atavium will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 20 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Atavium.
- Atavium Site Overview. The Site provides documentation, user forums, and other information and community support primarily related to Atavium’s data storage platform and certain related services (such solutions, the “Atavium Services“). These Terms govern your use of this Site, but not your use of the Atavium Services, which is subject to separate agreements between you and Atavium as further described in Section 18.
- You must be at least 18 years of age to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Site; and (c) your registration and your use of the Site is in compliance with all applicable laws and regulations. If you are using the Site on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Accounts and Registration. To access certain features of the Site, including the user forums, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
- User Content
- User Content Generally. Certain features of the Site may permit users to upload content to the Site, including messages, queries, integration information, reviews, images, video, data, text, source code, and other types of works (“User Content“) and to publish User Content on the Site. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Site.
- Limited License Grant to Atavium. By posting or publishing User Content, you grant Atavium a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers of distribution) to host, sell, store, transfer, display, use, perform, reproduce, modify, distribute, and create derivative works your User Content (including by incorporating your User Content into the Atavium Services), in whole or in part, in any media formats and through any media channels now known or hereafter developed, without any payment obligation to you.
- Limited License Grant to Other Users. By posting or sharing User Content with other users of the Site, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Site.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Atavium and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Atavium, the Site, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, obligation of confidentiality or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Atavium to violate any law or regulation.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Atavium may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Site you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Atavium with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Atavium does not permit copyright-infringing activities on the Site.
- Digital Millennium Copyright Act
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Site, you may contact our Designated Agent at the following address:
Attn: Legal Department (Copyright Notification)
130 Cheshire Lane, Suite 150
Minnetonka, MN 55305
Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of those materials on the Site is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. Atavium will promptly terminate the accounts of users that are determined by Atavium to have repeatedly posted or shared User Content that may infringe the rights of others.
- Prohibited Conduct. BY USING THE SITE YOU AGREE NOT TO:
- use the Site for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Site or the Atavium Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Site or the Atavium Services, except to the extent that the activity is expressly permitted by applicable law; or (c) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code;
- interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (a) making any unsolicited offer or advertisement to another user of the Site; (b) attempting to collect personal information about another user or third party without consent; or (c) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site, or violating any regulation, policy, or procedure of any such network, equipment, or server;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 12) or any right or ability to view, access, or use any Material; or
- attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
- Termination of Use; Discontinuation and Modification of the Site. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you violate any provision of these Terms, your permission from us to use the Site will terminate automatically. In addition, Atavium may in its sole discretion terminate your user account on the Site or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Site. Material modifications are effective upon your acceptance of the modified Terms. Non-material modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- License to Sample Code. Certain portions of the Site contain computer program examples demonstrating or aiding the use of the Atavium Services, along with associated documentation and other example files or directories (“Sample Code“). Sample Code does not include, and the rights granted to you in this Section 10 do not apply to, any code that forms part of the general release of the Atavium Services that we may make available through the Site. Your use of the Atavium Services is subject to separate agreements between you and Atavium as further described in Section 18. Atavium hereby grants to you a worldwide, non-exclusive, non-transferable, non-sublicensable license during the term of these Terms and subject to your compliance with these Terms to:
- internally use and make a reasonable number of copies of the Sample Code, including, without limitation, for back-up, development, support, training, internal testing, quality assurance and evaluation purposes;
- use, modify, reproduce, create derivative works of and distribute, directly or indirectly, the Sample Code in connection with the development of computer software that communicates or interfaces with the Atavium Software (“User Programs“);
- use, modify, reproduce, create derivative works of and distribute, directly or indirectly, compiled versions of the Sample Code in connection with User Programs; and
- grant end users a sublicense to use compiled versions of the Sample Code in connection with User Programs.
- Restrictions on Sample Code. The license to the Sample Code set out in Section 10 does not grant you any rights to any Atavium intellectual property other than the Sample Code, nor does it grant you permission to develop any User Programs or any other program that relates to or interoperates with the Atavium Services. In addition, you will not yourself, nor through any affiliate, agent or third party, use, modify, reproduce, create derivative works of or distribute the Sample Code except as necessary to develop User Programs.
- Ownership; Proprietary Rights. The Site is owned and operated by Atavium. The visual interfaces, graphics, design, compilation, information, documents, data, software, computer code (including source code or object code), Sample Code, services, and all other elements of the Site provided by Atavium (“Materials“) are protected by intellectual property and other laws. All Materials contained in the Site are the property of Atavium or our third-party licensors. Except as expressly authorized by Atavium, you may not make use of the Materials. Atavium reserves all rights to the Materials not granted expressly in these Terms.
- If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site or the Atavium Service, including information related to Atavium Service queries and integration with third-party tools and data formats (collectively, “Feedback“), then you hereby grant Atavium an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Site or the Atavium Services.
- You are responsible for your use of the Site, and you will defend and indemnify Atavium, its affiliates and each of their respective officers, directors, employees, consultants, affiliates, subsidiaries, agents and third party suppliers (together, the “Atavium Entities“) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Disclaimers; No Warranties. THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ATAVIUM ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE ATAVIUM ENTITIES DO NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ATAVIUM ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, YOUR DEALING WITH ANY OTHER SITE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- Limitation of Liability. IN NO EVENT WILL THE ATAVIUM ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, DATA, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ATAVIUM ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 20.4(iii), THE AGGREGATE LIABILITY OF THE ATAVIUM ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO ATAVIUM FOR ACCESS TO AND USE OF THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Governing Law. These Terms are governed by the laws of the State of Minnesota without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Atavium agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Hennepin County, Minnesota for the purpose of litigating any dispute. We operate the Site from our offices in Minnesota, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.
- Dispute Resolution and Arbitration
- In the interest of resolving disputes between you and Atavium in the most expedient and cost-effective manner, you and Atavium agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or related to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ATAVIUM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Despite the provisions of Section 20.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Any arbitration between you and Atavium will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Atavium.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice“). Atavium’s address for Notice is: Atavium, Inc., 130 Cheshire Lane, Suite 150, Minnetonka, MN 55305. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Atavium may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Atavium must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Atavium will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Atavium in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
- If you commence arbitration in accordance with these Terms, Atavium will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Minneapolis, Minnesota, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Atavium for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND ATAVIUM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Atavium agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications of this Arbitration Provision. If Atavium makes any future change to this arbitration provision, other than a change to Atavium’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Atavium’s address for Notice, in which case your account with Atavium will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- If Section 20.6 is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.
Contact Information. The Site is offered by Atavium, Inc., located at 130 Cheshire Lane, Suite 150, Minnetonka, MN 55305. You may contact us by sending correspondence to that address or by emailing us at email@example.com.