TERMS AND CONDITIONS OF USE
Effective date: April 20, 2020
Thank you for visiting the Atmosic website, www.atmosic.com and our mobile application (collectively the “Site””) owned and operated by Atmosic Technologies (“Atmosic”). You should not access this Site or use our services until you have carefully read and agreed to these terms and conditions of use (the “Terms”) which govern your access to and use of this Site.
PLEASE NOTE: Any dispute arising out of or relating to your access to or use of the Site must be determined by final and binding arbitration on an individual basis. You and Atmosic irrevocably waive any and all rights to class actions, other representative actions, and trial by jury or by any court, as set forth in detail in these Terms.
Use of this Site
By using this Site, you and other users of the Site agree to these Terms. If you do not agree to these Terms, you may not access or use the Site. We may modify the Terms from time to time without notice to you. You should check these Terms periodically for modifications. The provisions contained herein supersede all previous notices or statements regarding our Terms with respect to this Site. We include the effective date of our Terms at the top of the statement. We encourage you to check our Site frequently to see the current Terms in effect and any changes that may have been made to them. If we make material changes to the Terms we will post the revised Terms and the revised effective date on this Site. By using the Site following any modifications to the Terms, you agree to be bound by such modifications.
Atmosic provides you with access to and use of the Site subject to your compliance with the Terms. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the Terms.
User age and access. By submitting information through this Site you represent that you are a United States of America resident over the age of 18.
License. The Site, including all of its contents, such as text, images, and the HTML used to generate the pages, (“Materials”), are our property or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from this Site in whole or in part, for any public or commercial purpose without the specific written permission of Atmosic. We grant you a personal, non-exclusive, non-transferable license to access our Site and to use the information and services contained here. In turn, you grant us a non-exclusive, royalty-free license to use any content you post on the Site for any purpose, subject to the express terms of this Agreement.
Rules and Limits on and Modifications to the Site
We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
Specific Prohibited Uses.
The Site may be used only for lawful purposes by individuals using authorized services of Atmosic. You are responsible for your own communications, including the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through the Site. Atmosic specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following:
- Posting any information which is incomplete, false, inaccurate or not your own;
- Impersonating another person;
- Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or which fails to comply with accepted Internet protocol;
- Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
- Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
- Posting material that infringes on any other intellectual property, privacy or publicity right of another;
- Transmitting or transferring (by any means) information or software derived from the site to foreign countries or certain foreign nations in violation of US export control laws;
- Attempting to interfere in any way with the Site’s or Atmosic’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system.
Violations of system or network security may result in civil or criminal liability. Atmosic will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:
- Accessing data not intended for such user or logging into a server or account which user is not authorized to access;
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
- Attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding”, “mailbombing” or “crashing”; or sending unsolicited e-mail, including promotions and/or advertising of products or services, or
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
Mobile Application Terms and Conditions
Apple Users: If you download and/or use Atmosic’s Mobile Applications, you, the end-user of the Application, acknowledge that these Terms are entered into by and between Atmosic and you and not with Apple, Inc., and Apple, Inc. is not responsible for the application and/or its content. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of these Terms and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce these Terms. You acknowledge that Apple, Inc. has no obligation whatsoever to maintain or support the Application. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS ). These Terms incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/ ). For purposes of these Terms, the Application is considered the “Licensed Application” as defined in the LAEULA and Atmosic is considered the “Application Provider” as defined in the LAEULA. If any provisions of these Terms conflict with the terms of the LAEULA, the provisions of these Terms shall control. You further acknowledge and agree that in no event will Apple, Inc. be responsible for any claims relating to the application (including, without limitation, a third party claim that the application infringes that third party’s intellectual property rights) or your use or possession of the application, including: (i) product liability claims; (ii) any claim that the application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge and agree that, Apple, Inc. will have no warranty obligation whatsoever with respect to the application.
Android Users: If you download and/or use Atmosic’s Mobile Applications, you, the end-user of the application, acknowledge that these Terms are entered into by and between Atmosic and you and not with Google Inc., and Google Inc. is not responsible for the Application and/or its content. You acknowledge that Google Inc. has no obligation whatsoever to maintain or support the application. You acknowledge that you have reviewed the Android Market Terms of Service (located online at http://www.google.com/mobile/android/market-tos.html ) and the Android Market Business and Program Policies (located online at http://www.google.com/mobile/android/market-policies.html ) (collectively, the “Standard Terms”). If any provisions of these Terms conflict with the terms set forth therein, the provisions of these Terms shall control. If you download the application from another online market for software applications that operate on devices powered by the Android operating system, you acknowledge that you have reviewed and accepted the terms of services applicable to such market, and that in the event of a conflict, the provisions of these Terms shall control. You further acknowledge and agree that in no event will Google Inc. be responsible for any claims relating to the application (including, without limitation, a third party claim that the application infringes that third party’s intellectual property rights) or your use or possession of the application, including but not limited to: (i) product liability claims; (ii) any claim that the application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge and agree that, Google, Inc. will have no warranty obligation whatsoever with respect to the application.
We control and operate the Site from our offices in the United States of America, and all information is processed within the United States. We do not represent that materials on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You agree to comply with all applicable laws, rules and regulations in connection with your use of the Site. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
As between you and Atmosic, (or other company whose marks appear on the Site), Atmosic (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.
Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or materials you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise provided by Atmosci. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Site.
The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law.
Product names, logos, designs, titles, words or phrases may be protected under law as the trademarks, service mark or trade names of Atmosic or other entities. Such trademarks, service marks and trade names may be registered in the United States and internationally.
The Atmosic logos and service names are trademarks of Atmosic (the “Atmosic Marks”). Without our prior permission, you agree not to display or use Atmosic Marks in any manner. Nothing on the Site should be construed to grant any license or right to use any Atmosci Mark without the prior written consent of Atmosic.
Links from and to the Site
You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by Atmosic in any way and Atmosic is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Atmosic’s endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall Atmosic be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site’s administrator or Webmaster. Atmosci reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different users.
Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to Atmosic at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link, and to require termination of any such link to the Site, at our discretion at any time.
You agree to defend, indemnify and hold Atmosic, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with your use of the Site, your violation of the Terms or the posting or transmission of any materials on or through the Site by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right.
DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTION, MATERIALS AND SERVICES IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ATMOSIC DOES NOT WARRANT THAT THE SITE OR THE FUNCTION, CONTENT OR SERVICES MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. ATMOSIC MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
ATMOSIC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SITE. ATMOSIC IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTIES WITHOUT THE DIRECT INVOLVEMENT OF ATMOSIC.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ATMOSIC, NOR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE/MISUSE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF ATMOSIC OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF ATMOSIC TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00.
You agree that the laws of the state of California, excluding its conflicts-of-law rules, shall govern these Terms. Please note that your use of the Site may be subject to other local, state, national, and international laws.
Time for Bringing Actions.
Any claim or cause of action that you may have with respect to Atmosic or the Site must be commenced within one (1) year after the claim or cause of action arose.
AGREEMENT TO ARBITRATE, WAIVER OF JURY TRIAL, AND CLASS ACTION WAIVER
YOUR AGREEMENT TO ARBITRATE YOUR CLAIMS. YOU SHOULD REVIEW THIS PROVISION CAREFULLY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS EXCEPT FOR MATTERS THAT YOU FILE IN SMALL CLAIMS COURT IN THE STATE OR MUNICIPALITY OF YOUR RESIDENCE WITHIN THE JURISDICTIONAL LIMITS OF THE SMALL CLAIMS COURT AND AS LONG AS SUCH MATTER IS ONLY PENDING IN THAT COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES MAY BE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. AN ARBITRATOR’S DECISION IS AS ENFORCEABLE AS ANY COURT ORDER AND IS SUBJECT TO VERY LIMITED REVIEW BY A COURT. YOU EXPRESSLY AGREE TO THIS PROVISION AS A CONDITION OF PARTICIPATING IN THE CLUB.
Informal Resolution. For any Dispute you have with Atmosic, you agree to first contact us at firstname.lastname@example.org, and to attempt to resolve such Dispute with us informally.
Arbitration. In the unlikely event that we are unable to resolve any Dispute you bring to our attention after sixty (60) days, and for any other Dispute we raise, you and we agree that, except where prohibited by law, all Disputes shall be resolved individually and exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator, all pursuant to the Consumer Arbitration Rules of the American Arbitration Association (the “AAA Rules”). For more information on the AAA, the AAA Rules, or the process for filing an arbitration claim, you may call the AAA at (800) 778-7879 or visit the AAA website at http://www.adr.org.
No Class Actions or Class Wide Relief. You and Atmosic agree to the following with respect to the arbitration of any Dispute hereunder: (i) ANY CLAIM MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) the arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration; (iv) you will pay any filing fee or other costs of arbitration only as required under the AAA Rules or as otherwise specified by the arbitrator; (v) we reserve the right, in our sole discretion, to assume responsibility for any or all of the costs of the arbitration; (vi) the arbitrator will honor claims of privilege and privacy recognized at law; (vii) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (viii) the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (ix) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded by the arbitrator will be determined by the applicable law. ANY RIGHT TO A TRIAL BY JURY, WHETHER ON AN INDIVIDUAL OR A CLASS BASIS, IS HEREBY WAIVED.
Survival. This Arbitration Provision will survive termination of the Wine Club or these Terms. With the exception of the subpart prohibiting arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the AAA Rules, then the balance of this provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the Dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence.
Consent to Processing
By providing any personal information to the Site, all users, including without limitation users in the European Union, fully understand and unambiguously consent to the collection and processing of such information in the United States.
Any inquiries concerning these Terms should be directed to us by mail, email or phone as described below.
Notices to you may be made via either email or regular mail. The Site may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you on the Site.
To contact us with any questions or concerns in connection with this Agreement or the Site, or to provide any notice under this Agreement to us please go to Contact Us or write to us at
910 E Hamilton Ave, Suite 550
Campbell CA, 95008
The Terms constitute the entire agreement between you and Atmosic and govern your use of the Site, superseding any prior agreements between you and Atmosic. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site.
You agree that no joint venture, partnership, employment, or agency relationship exists between Atmosci and you as a result of this Agreement or your use of the Site.
Any claim or cause of action you may have with respect to Atmosic or the Site must be commenced within one (1) year after the claim or cause of action arose.
The failure of Atmosic to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You may not assign the Terms or any of your rights or obligations under the Terms without Atmosic’s express written consent.
The Terms inure to the benefit of Atmosic’s successors, assigns and licensees. The section titles in the Terms are for convenience only and have no legal or contractual effect.
© Copyright 2020 by Atmosic Technologies. All rights reserved.