Atlas products are proprietary software applications of ATS Global B.V. Your use of Atlas products is subject to the terms and conditions as outlined in this License Agreement.
Atlas License Agreement
Last updated: June 9, 2020
This License Agreement (“Agreement”) is a binding legal document between ATS Global BV (“ATS Global”) and Licensee, which explains the rights and obligations of Licensee when using Atlas Services and Software. “ATS Global” means ATS Global BV, a Dutch company with limited liability (KvK 34101316), with head office at A. Hofmanweg 5A, 2031 BH, Haarlem, The Netherlands.
By checking the “I Agree to the License Agreement & Privacy Policy” box, including the Atlas cookie and security policy, or by installing or using any Atlas Services and Software, Licensee agrees to be bound by this Agreement. If you do not agree to this Agreement, then leave the “I Agree to the License Agreement & Privacy Policy” box unchecked and do not use ATS Global’s Atlas Services and Software.
The “Agreement” also includes any Atlas policies or documents referenced in this document, including ATS Global Atlas’ privacy policy at https://www.weareatlas.com/privacy-policy as well as its cookie policy at https://weareatlas.com/cookie-policy and the data processing addendum, included in this “Agreement”.
From time to time, ATS Global may modify this Agreement, including any referenced policies and other documents. Any modified version will be effective at the time it is posted. To keep abreast of your license rights and relevant restrictions, please bookmark this Agreement and read it periodically. By using any Service or Software after any modifications Licensee agrees to all of the modifications.
1. Definitions
1.1. Administrator: the natural person (or persons) appointed by Licensee who has obtained accreditation to admit End Users to the Service and to issue Means of Authentication.
1.2. Agreement: this license agreement including all Annexes.
1.3. Annex: an annex to this Agreement which constitutes an inseparable part thereof.
1.4. End User: the natural person who uses the Service and Software. Amongst other things, End Users can be employees, clients, representatives, contractors, consultants or agents of Licensee. Each End User is also a Licensee.
1.5. End User License Agreement: the agreement that every End User has to accept, pertaining the conditions for use of the Service and Software, which is attached to this Agreement as Annex 1.
1.6. Environment: an environment in ATS Global Atlas Services in which multiple Workspaces can be hosted for a Group or Groups of Licensees.
1.7. Feedback: any feedback, comments, suggestions or materials that Licensee or End User may provide to ATS Global about or in connection with the Products, Service and Software, including any ideas, concepts, know-how or techniques contained therein.
1.8. Licensee: the party that has an Agreement with ATS Global as regards the Atlas Products, Services and Software.
1.9. IP Rights: all rights of intellectual property, such as but not limited to copyrights, database rights, trademark rights, know-how, patent rights.1.10. Means of Authentication: data and/or means (or the combination of these) used by the Licensee and End User to verify his or her identity on the Service, for example the combination of user name and password.
1.11. Registration: a form that has been filled in by a Licensee or an End User and is sent to and received by ATS Global using the Software.
1.12. “Professional Services”: fee based consulting, quality assurance or training services Atlas may perform pursuant to a statement of work (“SOW”) or Order Form issued pursuant to this Agreement. Each SOW or Order Form shall be deemed part of and subject to this Agreement.
1.13. “Service”, “Services”, “Atlas Services”: means Service: making and keeping the Atlas Software available via the internet to Licensee and its End Users and, services of Atlas, including but not limited to using the applications Atlas Play, Atlas Edge, Atlas Boost, Atlas Optimize, Atlas…. and the use of our Site and related websites, Business Modeler, Business Server, Team Server, Cloud Portal, App Store, (mobile) Apps, Content (as defined above), applications, other software, Support Portal, Forum, Partner Portal, (cloud) hosting services, platform as a service, documentation and manuals, except Customer Data.
1.14. “Site”: means the access to and use of the Services and the Atlas Play app and Atlas products (https://weareatlas.com/) as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto.
1.15. Software: any software product developed by ATS Global that Licensee orders from ATS Global (or a ATS Global Partner), including Updates and/or Upgrades and user documentation.
1.16. Update: an improved version of the Site or Software (for example version 0.1 to 0.2) in which a possible error has been resolved.
1.17. Upgrade: a new version of the Site or Software, which contains a change in functionality or new functions (for example version 1.0 to 2.0) of the Software.
1.18. “Atlas”, “Us”, “Our”, “We”, “ATS Global B.V.” (a Dutch company with limited liability under registered at the chamber of commerce in Amsterdam under number 34101316), and/or any affiliated or subsidiary company.
1.19. “You”, “User(s), “End User””: anyone who enters into this License Agreement with ATS Global or uses or accesses a Service of Atlas, including Your employees, representatives, consultants, contractors or agents who are authorized to use or access the Service of Atlas or have been supplied user identifications and passwords by You (or by Atlas at Your request), even if no charge is due or registration is needed.
1.20. Workspace: A workspace within a Licensee specific environment in which templates, information conforming to these templates, and files are managed.
1.21. “Party”, “Parties”: You or Atlas individually (‘Party’) or together (‘Parties’)
1.22. “Process”: A Process is any workflow defined in Atlas that can be started and stopped by being triggered manually by the User, automatically triggered by an external interface, a change of state of an attribute of a system or being called by another process.
2. Description of the Service
2.1. Subject to full compliance by Licensee of the terms and conditions under this Agreement, ATS Global will take all reasonable commercial efforts to render the Service to Licensee. This means ATS Global will provide hosting services and that ATS Global will make the Software available to Licensee via the internet. The Software and the Services are provided “as is” to Licensee and its End Users.
2.2. The Software and all Licensee’s data, including data of End Users and customers, will be stored and processed on a server, run and maintained by ATS Global or one or more third parties appointed by ATS Global.
2.3. ATS Global may temporarily suspend the Services in full or in part for the purpose of carrying out maintenance work. The Service will not be suspended longer than necessary.
2.4. The Service shall only include the organization or provision of backup, fallback and recovery services if parties have explicitly agreed on these services.
3. Grant of license and contents thereof and Apple and Android Devices
3.1. After a representative of Licensee has registered Licensee on the website of ATS Global , ATS Global grants to Licensee a worldwide, non-exclusive, non-transferable, right to use the Service and the Software for its own internal business purposes, subject to the terms and conditions of this Agreement. Software licenses are perpetual unless terminated as described in this Agreement. Only Licensee and End Users may use the Software. ATS Global may assume that a representative of Licensee who registers a Licensee, is authorised by the Licensee to contractually and legally bind the Licensee.
3.2. Non-exclusivity means that ATS Global is entitled to grant the same or similar rights to other Licensees. Furthermore, ATS Global remains entitled to use, distribute and promote the Service and the Software.
3.3. When first using the Service and the Software, the Administrator will set up the Means of Authentication to use the Service and Software. The Administrator may solely provide End Users who accepted the End User License Agreement with the Means of Authentication.
3.4. The Service and Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses. To the extent required by the license that accompanies the open source software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such open source software, including any provisions governing access to source code, modification or reverse engineering.
3.5. If a Licensee accesses the Site or its Services via a mobile application, then ATS Global grants the Licensee a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in this Agreement.
3.6. The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Site and its Services: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in this Agreement or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in this Agreement, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in this Agreement against you as a third-party beneficiary thereof.
4. Conditions regarding the use of the Service and Software and the Site
4.1. Licensee is solely responsible for the use of the Service and the Software by itself and by its End Users and for the information and/or data stored and/or processed by itself and its End Users.
4.2. Licensee is solely responsible that itself and its End Users do not process any illegal data while using the Service or act unlawfully against any third party in any other way by using the Service.
4.3. Licensee will provide accurate, current and complete information when registering with ATS Global and ordering the Service and agrees to update its information if it changes. This is important, because ATS Global may send notices, statements and other information to Licensee by email or through Licensee’s account. Licensee will keep all Means of Authentication confidential and will not share them with third parties. Licensee is responsible for all actions taken through its accounts.
4.4. ATS Global does not accept any liability that is related to the information and/or data that is stored and/or changed by using the Service being incorrect, incomplete or unlawful and/or that is related to changes to, additions to and/or any other use of the information made available by the Service. Licensee shall indemnify ATS Global against any and all claims from third parties regarding the aforementioned situations. Licensee will reimburse every and all reasonable costs and damages that ATS Global should suffer as a result of such claims.
4.5. In case it should come to ATS Global’s knowledge that any information that Licensee and/or its sub licensees have stored and/or exchanged using the Service is illegal, ATS Global reserves the right to immediately remove such information or to disable any access thereto. ATS Global cannot be held liable for any damages that may result from such actions.
4.6. In all cases, the use of the Services must directly support the operations of the Licensee. The Licensee may not commercially exploit the Services in the form of leasing, renting, licensing, selling or any other form.
4.7. Licensee may not use the Service and Software for (i) purposes of monitoring its availability, performance or functionality, or (ii) for any other benchmarking or competitive purposes, or disclose the results of any such benchmark to any third party. Licensee is not entitled to (iii) make any changes to the Service and Software or parts thereof, without prior written approval of ATS Global. Licensee is not entitled to (iv) reverse engineer or decompile the Service and Software or parts thereof, except for those circumstances that are allowed under mandatory copyright law and under the condition that Licensee has obtained prior written approval of ATS Global to do so. ATS Global is entitled to attach conditions to such approval. Furthermore, Licensee is not entitled to (v) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Service in any way; (vi) modify or make derivative works based upon the Service; (vii) remove or modify any markings or notices of proprietary rights in the Service; (viii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ix) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (x) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (xi) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (xii) attempt to gain unauthorized access or impersonate another user to gain access to the Service or its related systems or networks. Licensee consents to use the Service in accordance with any technical- and usage limitations, including but not limited to the number of users, number of applications, disk storage, RAM, number and type of integrations, geography and traffic.
4.8. ATS Global is entitled to verify, whether or not, Licensee performs its obligations in accordance with this Agreement. In such an event Licensee will provide all relevant documentation and/or information to ATS Global. During the term of the Agreement and for a period of three years following its termination, ATS Global may, after 30 days advance written notice, inspect and audit Licensee’s records to verify compliance with the Agreement and other terms and conditions. Licensee agrees to cooperate with the audit, provide ATS Global with reasonable assistance and access to information.
4.9. All use of the Service and Software must be in accordance with the relevant ATS Global documentation and policies, including the End User License Agreement. Licensee will fully impose all obligations of the End User License Agreement on each End User. Licensee is not entitled to make any changes to the End User License Agreement without the permission of ATS Global. Licensee is responsible for its own internet connection and must use systems and equipment compatible with the Service and Software, as ATS Global can specify in its published policies. Any web browsers and other software of Licensee must support the Secure Socket Layer (SSL) protocol or other protocols accepted by ATS Global. ATS Global is not responsible for any Licensee’s data which is lost, altered, intercepted or stored across networks not owned or operated by ATS Global. Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. ATS Global reserves the right, in its sole discretion, to make changes or modifications to these terms at any time and for any reason. ATS Global will alert you about any changes by updating the “Last updated” date of this License Agreement, and Licensee waives any right to receive specific notice of each such change. It is Licensee´s responsibility to periodically review this License Agreement to stay informed of updates. Licensee will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised License Agreement by your continued use of the Service and Site after the date such revised License Agreement is posted.
4.10. The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
4.11. The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if Licensee´s interactions would be subjected to such laws, Licensee may not use this Site. Licensee may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
4.12. The Services and the Site are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.
5. Maintenance and Support
5.1. ATS Global will provide maintenance, perform Updates and perform Upgrades as it deems fit. In general, ATS Global shall maintain the latest version of the Service and Software to the best of its ability and do its utmost to correct possible errors by providing and installing Updates from time to time and at its sole discretion. ATS Global is entitled but not obligated to develop Upgrades of the Software.
5.2. The terms of this Agreement apply to any Update and Upgrade, unless ATS Global provides different terms.
5.3. The support services provided by ATS Global will be provided during normal office hours of ATS Global by telephone or as web-based support. Although best efforts are made to resolve each issue or to provide an answer to a question, ATS Global will provide the support services “as is” and without any warranties.
5.4. Licensee or End User can provide Feedback to ATS Global in connection with maintenance and otherwise. Licensee or End User hereby grant ATS Global a worldwide, royalty-free, exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Service or Software. End User agrees that ATS Global may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise.
6. Prices and Payment
6.1. Prices (‘fees’) and payment for subscribing to the Atlas Services depend on the features the Licensee chooses (free, team, business, enterprise) and are detailed on the Site of Atlas services: https://weareatlas.com/pricing. Forms and method of payment are mentioned on the Site.
6.2. ATS Global offers a 30-day free trial to new users who register with the Site to use the Atlas Services. The account will not be charged and the subscription will be suspended until upgraded to a paid version at the end of the free trial.
6.3. ATS Global enables the Licensee to make use of the Services in the form of a User Subscription for the duration of the Agreement.
6.4. With a User Subscription, the Licensee can, during the term of validity of the Agreement, increase or decrease the minimum number of Processes used in accordance with the prevailing scales and rates.
6.5. With a User Subscription, the permitted Users are employees of the Licensee, subcontractors, Suppliers, alliance parties or Customers of the Licensee, each of them becoming a Licensee by entering into this Agreement.
6.6. To determine the number of Processes used, the Processes used by the Active Users of all Environments under the Agreement will be added up.
6.7. ATS Global can provide Atlas Services as Professional Services which are fee based consulting, quality assurance or training services. In this case a statement of work (“SOW”) or Order Form will be issued pursuant to this Agreement. Each SOW or Order Form shall be deemed part of and subject to this Agreement.
6.8. When you use a free trial or purchase or pay a subscription fee to access some of our services, you agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Site. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time.
6.9. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site.
6.10. In the event of late payment ATS Global will be entitled to suspend its services such as providing support or temporarily discontinuing the Service of making the Software available to Licensee or its customers for the period of time the payment is delayed.
6.11. Licensee must pay all fees by their due date specified at the time of order. ATS Global will at its discretion charge Licensee using the credit card on file, direct debit, or if no valid payment method is added: send Licensee an invoice. Late payments are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all collection expenses. In event of any termination, Licensee will pay the unpaid balance due calculated in accordance with this Agreement. ATS Global may charge such unpaid fees and charges to Licensee’s credit card or otherwise bill Licensee for such unpaid fees and charges.
6.12. Payments made by Licensee under this Agreement exclude any taxes or duties payable in respect of the Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by ATS Global, Licensee must pay to ATS Global the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, Licensee may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, Licensee will have the right to provide to ATS Global with any such exemption information and ATS Global will use reasonable efforts to provide such invoicing documents as may enable Licensee to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
6.13. Amounts due under this Agreement cannot be withheld or offset by Licensee against amounts owed by ATS Global to Licensee for any reason. All fees payable to ATS Global hereunder are non-refundable unless otherwise agreed to in writing (which can also mean by email).
6.14. Any adjustment in prices will be effective thirty (30) days after the notice of such adjustment is sent by ATS Global to Licensee.
6.15. You can cancel your subscription at any time by contacting us using the contact information provided below. Your cancellation will take effect at the end of the current paid term.
7. IP Rights of ATS Global and Licensee
7.1. All IP Rights with respect to the Service and the Software and all documentation provided by ATS Global to Licensee are solely held by ATS Global or its licensors. Licensee will respect all such IP Rights. Licensee shall only acquire the rights of use granted in this Agreement and subject to the terms and conditions as stated herein.
7.2. ATS Global shall be allowed to take (additional) technical measures to protect the Software. Licensee is not allowed to remove or evade such technical measures.
7.3. ATS Global shall indemnify Licensee against any third party claim stating that the Software infringes intellectual property rights of third parties on the condition that Licensee immediately informs ATS Global in writing (which can also mean by email) about the existence and contents of such claim and will let ATS Global handle the matter completely, including but not limited to negotiating and agreeing to any settlements. In this respect Licensee shall provide – at first request by ATS Global – all necessary powers of attorney, information and cooperation to defend – if necessary, in the Licensee’s name – against such third party claims.
7.4. If it has been established in court as an incontrovertible fact that the Software and/or documentation of ATS Global infringes any intellectual property right held by a third party, ATS Global shall – at it’s sole discretion – (a) change the Software to the extent that it does not infringe such third party rights, (b) provide different software with similar functionality that does not infringe such third party rights, (c) at its expense acquire a license from such third party in order for the Licensee and/or its End Users to continue using the Software, (d) or provide any other reasonable solution to Licensee and/or its End Users. Any further liability of ATS Global with respect to infringement of third party rights is excluded.
7.5. ATS Global does not assert any ownership over your Contributions using the Services. Licensee at all times remains the owner of the information recorded in a Workspace and is the sole responsible and liable party for the content and accuracy thereof. Observance by the Licensee of all applicable laws and regulations in relation to the creation, storing and managing of (computer-generated) data in every field of law in which the Customer uses the Services and Software or sends information using the Services and Software is exclusively the responsibility of the Licensee. ATS Global is not subject to a statutory retention period for the information entered into the Services by the Customer.
8. Term, termination and consequences of termination
8.1. This Agreement will continue so long as Licensee is registered with ATS Global or until termination.
8.2. ATS Global may suspend or terminate this Agreement and Licensee’s account immediately, with respect to the Service and the Software, if Licensee or End User fails to comply with the terms and conditions of this Agreement or the End User License Agreement, including any failure to pay fees when due.
8.3. ATS Global may terminate this Agreement and Licensee’s account by giving notice to Licensee one (1) month before it intends to suspend or terminate this Agreement and Licensee’s account.
8.4. ATS Global is allowed to terminate this Agreement in writing (which can also mean by e-mail) with immediate effect in the event: (a) Licensee becomes bankrupt or insolvent and/or if the business of Licensee is placed in the hands of a receiver, assignee or trustee, whether by voluntary act of Licensee or otherwise; or (b) Licensee enters into liquidation or shall enter into an arrangement or composition with its creditors; or (c) Licensee fails to perform its obligations under this Agreement.
8.5. Licensee may terminate this Agreement at any time by giving notice to ATS Global.
8.6. Upon termination – on whatever grounds and for whatever cause – all rights granted to Licensee under this Agreement will expire automatically and immediately. All fees paid by the Licensee remain due and payable. All outstanding invoices will be immediately due and payable. Licensee must at its own cost: cease using (and require all End Users, and anyone else to cease using) all the Software.
8.7. Unless the Agreement or Licensee’s account is terminated on the ground of article 8.3, Licensee will not be entitled to credits or refunds for any unused portion of this Agreement, including but not limited to unused maintenance and support. If the Agreement or Licensee’s account is terminated on the ground of article 8.3,
8.8. Within the context of possible termination of the Agreement ATS Global will assess whether it is possible and desirable that ATS Global or a third party will conclude (new) agreements with End Users directly on the basis of which those End Users can continue the use of the Service. If the aforementioned situation arises Licensee states that it will agree with the concluding of new agreements and will fully cooperate if necessary thereto.
8.9. Licensee agrees that ATS Global may terminate the providing of any gratuitous Atlas Services at any time, for any reason and without prior notice. Licensee agrees that ATS Global shall not be liable to Licensee and/or any third party for any modification, suspension, or termination of the Service. The following Sections shall survive the termination and/or expiration of this Agreement: Sections 7 (IP Rights); 9 (Processing of (personal) data); 10 (Confidentiality); 11 (Limitation of Liability); 12 (Warranty); and 13 (Applicable law and other provisions).
9. Processing of (personal) data
9.1. The performance of the Agreement will amount to the processing of personal data in respect of which Licensee and/or its customers are the controller as defined by General Data Protection Regulation (GDPR). ATS Global is in that regard deemed to be processor in the meaning of the GDPR.
9.2. All processing of personal data by ATS Global will be in accordance with the Data Processing Addendum, and therefore in accordance with the GDPR, which is attached as Annex 2 to this Agreement.
10. Confidentiality
10.1. Except as otherwise set forth in Section 5.4 above, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.
10.2. Any ATS Global technology and performance information relating to the Products shall be deemed Confidential Information of ATS Global without any marking or further designation.
10.3. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
10.4. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10.5. For clarity, no Feedback will be deemed confidential information and nothing in this Agreement limits ATS Global ‘s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
10.6. Parties undertake to require the members of their staff and their subcontractors to observe these confidentiality provisions as well as to require the staff (including temporarily deployed third parties) that is charged with the performance of this Agreement to observe all reasonable (precautionary) measures.
10.7. ATS Global may identify Licensee (by name and or logo) as a customer in promotional material. Licensee may request that ATS Global cease identifying Licensee at any time by submitting an email to hello@weareatlas.com. Requests may take 30 days to process.
11. Limitation of liability
11.1. In no event will ATS Global, its directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the Services and the Software or the Site, even if we have been advised of the possibility of such damages, notwithstanding anything to the contrary contained herein. Certain US state laws and international laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. if these laws apply to you, some or all of the above disclaimers or limitations may not apply to you, and you may have additional rights.
11.2. The total liability of ATS Global for failing to perform its obligations under this Agreement towards you shall be limited at all times to compensating direct damages, limited to the amount paid, if any, by you to us during the twelve (12) month period prior to any cause of action arising (exclusive of VAT). Direct damage shall exclusively mean:
a. reasonable expenses which the Licensee would have to incur to make ATS Global’s Services perform to the Agreement. These alternative damages shall not be compensated if the Agreement is rescinded by Licensee;
b. reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of this Agreement;
c. reasonable expenses incurred to prevent or mitigate damage, insofar as the Licensee demonstrates that these expenses resulted in mitigation of direct damages within the meaning of this Agreement.
11.3. ATS Global’s liability for consequential damage is excluded. Consequential damages means consequential loss, lost profits, lost savings, loss of goodwill, damages as a result of business interruptions, mutilation or loss of data and all other forms of damages or injury not defined as direct damages.
11.4. ATS Global shall only be liable as a result of an attributable failure to perform the Agreement if the Licensee gives ATS Global an immediate notice of default in writing, setting a reasonable term in which the breach can be remedied, and ATS Global still attributably fails to meet its obligations after this period. The notice of default must contain a comprehensive and detailed description of the breach, in order to ensure that the ATS Global has the opportunity to respond adequately.
11.5. Licensee will indemnify, defend and hold harmless ATS Global from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by Licensee (including End Users) of this Agreement, (b) any Licensee data, (c) any modifications of or combinations with a Product, or any service or product offered by Licensee in connection with or related to the Service or Software, (e) any representations or warranties made by Licensee (including End User) regarding the Service or Software to third parties. This indemnification obligation is subject to Licensee receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Licensee to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim, provided that ATS Global may participate in the claim at its own expense and Licensee may not settle any claim without ATS Global ‘s prior written consent; and (iii) all reasonable necessary cooperation of ATS Global at Licensee’s expense.
11.6. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party.
12. Warranty
12.1. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if Licensee is an entity, this Agreement and each order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
12.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, ATS GLOBAL AND ITS THIRD PARTY SUPPLIERS/LICENSORS PROVIDE THE PRODUCTS (INCLUDING THE HOSTED SERVICES, SOFTWARE AND ANY MAINTENANCE) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. WITHOUT LIMITING THE FOREGOING, ATS GLOBAL AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY (1) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR
GENERATED THEREWITH, (2) THAT (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY END USER THROUGH THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS,
(E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGIONG, TO THE MAXIMUM EXTENT PERMITTED BY APPLICBLE LAW, ATS GLOBAL AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO, AND ASSUME NO LIABILITY FOR, ANY PRODUCTS PROVIDED ON AN EVALUATION BASIS. IN ADDITION, ATS GLOBAL AND ITS THIRD PARTY LICENSOR/SUPPLIERS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ATS GLOBAL.
13. Applicable law, disputes and other provisions
13.1. This Agreement is governed exclusively by the laws of the Netherlands. The Vienna Sales Convention of 1980 does not apply. Any dispute between the parties arising from this Agreement or in connection thereto or that might result there from shall, subject to Section 14.2, irrevocably and unconditionally be submitted to the exclusive jurisdiction of the courts of Haarlem.
13.2. Except in circumstances where a party seeks urgent injunctive relief, before commencing any court proceedings, if any disputes arise under this Agreement the parties will negotiate in good faith to resolve the dispute and if the dispute has not been resolved within sixty (60) calendar days by the relevant parties using their best efforts to resolve the dispute, the dispute will be referred to arbitration and determined under the Rules of Arbitration of Nederlands Arbitrage Instituut, Secretariaat NAI, Aert van Nesstraat 25 J/K, 3012 CA Rotterdam, Postbus 21075, 3001 AB Rotterdam, as mutually agreed by the parties.
13.3. Licensee shall not assign or purport to assign or transfer any of its rights or obligations under this Agreement to any third party, without prior written consent of ATS Global. ATS Global is entitled to assign or purport to assign or transfer its rights and obligations under this License Agreement to any third party. Licensee agrees (now for then) to such assignment or transfer by ATS Global and will provide all necessary cooperation to ATS Global with respect thereto.
14. DMCA Notices
14.1. If Licensee believes that any content on ATS Global Atlas Services or Site violates its copyright, it should notify ATS Global´s copyright agent in writing. The contact information for ATS Global’s copyright agent is at the bottom of this section. ATS Global cannot take action unless Licensee gives us all the required information.
14.2. In order for ATS Global to take action, Licensee must do the following in its notice:
i. provide Licensee’s physical or electronic signature
ii. identify the copyrighted work that Licensee believe is being infringed;
iii. identify the item that Licensee thinks is infringing and include sufficient information about where the material is located (including which website) so that ATS Global can find it;
iv. provide ATS Global with a way to contact Licensee (such as address, telephone number, or email);
v. provide a statement that Licensee believes in good faith that the item identified as infringing is not authorized by the copyright owner, its agent, or the law to be used by ATS Global; and
vi. provide a statement that the information Licensee provides in its notice is accurate, and that (under penalty of perjury), Licensee is authorized to act on behalf of the copyright owner whose work is being infringed.
14.3. If The contact information for ATS Global’s copyright agent is as follows: Copyright Enforcement ATS Global, A. Hofmanweg 5A, 2031 BH Haarlem, The Netherlands, E-Mail: hello@weareatlas.com.
15. Government End Users
15.1. The Services and Software are commercial computer software. If the End User or Licensee of the Services and Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
16. General
16.1. This Agreement is the entire agreement between Licensee and ATS Global relating to the Service and Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service and Software or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended unless there is the written agreement of ATS Global (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, “including” (and its variants) means “including without limitation” (and its variants). If either party to this Agreement breaches any provision of this Agreement relating to Confidential Information or IP Rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Agreement. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give one party the express or implied right, power or authority to create any duty or obligation of the other party.
16.2. ATS Global may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Atlas’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Atlas’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Atlas (such notice shall be deemed given when received by Atlas) at any time by any of the following: letter sent by confirmed facsimile to ATS Global – Atlas at the following fax number: +31 23 7511201; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to ATS Global – Atlas at the following address: ATS Global – Atlas, P.O. Box 3993, NL-2003 EZ, Haarlem, The Netherlands, in either case, addressed to the attention of: Chief Executive Officer.
16.3. If a Product is used by Licensee in the United States, Licensee acknowledges that the Product is subject to U.S. export jurisdiction and agrees to comply with all applicable international and national laws that apply to the use of the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
16.4. Licensee is solely responsible for determining the existence and application of any local law to any proposed use of the Service or Software. Licensee agrees not to use any Product (or any direct product thereof) in violation of any applicable local laws.
Annex 1 – ATS Global End User License Agreement
Atlas Products, Service and Software are developed by ATS Global BV, a Dutch corporation (KvK34101316)), with head office at A. Hofmanweg 5A, 2031 BH, Haarlem, The Netherlands (“ATS Global”). ATS Global grants the End User the right to use Atlas Products, Service and Software on the following conditions.
1. Definitions
1.1. Authorized User: the natural person (or persons) appointed by Licensee who has obtained accreditation to admit End Users to the Service and to issue Means of Authentication.
1.2. Licensee: the party that has a License Agreement with ATS Global. An End User is under the License Agreement also a Licensee.
1.3. End User: the natural person who uses the Service and Software.
1.4. End User License Agreement: this agreement that every End User has to accept, pertaining the conditions for use of the Service and Software.
1.5. IP Rights: all rights of intellectual property, such as but not limited to copyrights, database rights, trademark rights, know-how, patent rights.
1.6. License: the right to use the Service and Software.
1.7. License Agreement: the license agreement concluded between ATS Global and the Licensee for the use of the Service and Software.
1.8. Means of Authentication: data and/or means (or the combination of these) used by the Licensee and End User to verify his or her identify on the Service, such as for example the combination of username and password.
1.9. Service: making and keeping the Software available via the internet to Licensee and its End Users that have obtained a sublicense from Licensee).
1.10. Software: any product developed by ATS Global that Licensee orders from ATS Global including Updates and/or Upgrades and user documentation.
2. Use of the Service and Software
2.1. The Licensee hereby grants the End User a non-exclusive, non-sublicensable and non-transferrable License on condition that he or she fully complies with this End User License Agreement.
2.2. The End User decides which data is stored and/or exchanged using the Service and Software. The End User is therefore responsible for ensuring that such data is lawful and does not infringe the rights of third parties. The Licensee and ATS Global do not accept any liability for data stored and/or exchanged using the Service and Software.
2.3. If the Licensee or ATS Global are aware or realise that data or information that the End User has stored and/or exchanged using the Service and Software is unlawful, the Licensee and/or ATS Global will take prompt action to delete that data or information or make access to it impossible. In no event will the Licensee or ATS Global be liable for any damage resulting from such action.
2.4. The End User may only use the Service and Software for legitimate purposes and will not abuse it in any way or use it to store or distribute unlawful data, nor will he or she act unlawfully or carelessly in any other way.
2.5. The End User is not allowed to make changes to the Service and Software or parts thereof. The End User is furthermore not permitted to reverse engineer or decompile the Service and Software or parts thereof.
2.6. The Authorized User is responsible for granting End Users access to the Service and Software (for example, when issuing Means of Authentication)
3. Code of conduct
3.1. The End User is responsible for his or her use of the Service and Software.
3.2. The End User will refrain from any use of the Service and Software in violation of this End User License Agreement.
3.3. The End User guarantees that he will act as a careful End User. If at any time ATS Global or Licensee makes it possible for its End Users to use the Software and Service for communication with ATS Global, Licensee or other End Users, the communication of the End User:
is not based on falsehoods and / or misleading;
will not be libellous, slanderous, insulting, racist, discriminating or hateful; will not erotic or pornographic;
will not contain hyperlinks, torrents or comparable information of which the End User knows or ought to know that it refers to material that infringes the rights of third parties;
will not consist of distributing personal data of third parties without permission or necessity or sending unwanted commercial, charitable or ideal communication;
will not contain viruses, trojans, worms, bots or other software that can damage, render unusable or inaccessible, erase or take advantage of or that are intended to circumvent technical protection measures of the Service and Software;
will not impose an unreasonable or disproportionate burden on the infrastructure of the Service or obstruct the functionality of the Service and Software;
do not infringe the rights of ATS Global, Licensee or third parties, including but not limited to IP Rights and rights relating to the protection of privacy;
are not otherwise unlawful in any way or can damage the interests and good name of ATS Global or Licensee.
4. Use of Means of Authentication
4.1. The End User is responsible for the Means of Authentication issued to or created by him or her. The End User will treat these personal Means of Authentication with care and keep them secret. The End User will take effective measures to prevent misuse of Means of Authentication.
4.2. Neither the Licensee nor ATS Global bear liability for the misuse of Means of Authentication, and they may assume that an End User who logs in using these Means of Authentication is authorised by the Licensee to use the Service and Software.
4.3. As soon as an End User knows or has reason to suspect that Means of Authentication have fallen into the hands of unauthorised persons, the End User will inform the Authorized User or the Licensee of this, notwithstanding the End User’s own obligation to immediately take effective measures by, for example, setting different usernames and passwords or suspending the account concerned. Where appropriate, the Authorized User will take suitable action, independently or together with Licensee or ATS Global.
5. Storage and processing of personal data
5.1. Use of the Service and Software entails the processing of personal data, such as the storage of such data on ATS Global’s servers. The Licensee is the controller in this regard, meaning that the Licensee is responsible for ensuring that personal data is processed in accordance with the applicable privacy legislation. ATS Global is the processor in this regard. In this capacity, ATS Global will adhere to the arrangements set out in the data processing agreement concluded with the Licensee, which is attached as an annex to the License Agreement. ATS Global will only carry out other processing on the Licensee’s instructions or if it has a statutory obligation to do so.
6. Duration and termination
6.1. The License Agreement and this End User License Agreement apply for the same duration, except when the End User License Agreement is terminated on the basis of article 6.2.
6.2. If the End User does not comply with the conditions imposed by the Licensee (for example, these End User License Agreement or additional conditions imposed by the Authorized User or Licensee), then the use of the Service and Software by End User may be (temporarily) suspended or terminated by Licensee or by ATS Global. In no event will the Licensee or ATS Global be obliged to pay any refund, compensation or damages to the End User in such a situation.
6.3. Upon termination of the License Agreement – on any grounds and for any reason whatsoever – all rights granted to the End User under this End User License Agreement will automatically cease to have effect and the End User will no longer be authorised to use the Service and Software.