IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS ATMOSPHERE IOT PLATFORM END USER LICENSE AGREEMENT AND TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE CLICKING THE “ACCEPT” BUTTON, AND/OR DOWNLOADING OR USING ANY PORTION OF THE ATMOSPHERE IOT PLATFORM. BY CLICKING THE “ACCEPT” BUTTON AND/OR DOWNLOADING OR USING ANY PORTION OF THE ATMOSPHERE IOT PLATFORM, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT (1) YOU HAVE CAREFULLY READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, (2) YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (3) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE ATMOSPHERE IOT PLATFORM TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL, NOR USE THE ATMOSPHERE IOT PLATFORM. “YOU” MEANS (1) THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT; (2) YOUR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU; AND (3) ANY OF YOUR CUSTOMERS USING THE ATMOSPHERE IOT PLATFORM OR ANY SERVICE BASED UPON THE ATMOSPHERE IOT PLATFORM, AS MAY BE PERMITTED IN THIS AGREEMENT. YOU SHALL BE LIABLE FOR ANY FAILURE BY YOU TO COMPLY WITH THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPIES, ACCESSES OR USES THE ATMOSPHERE IOT PLATFORM AND ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPIES, ACCESSES OR USES THE ATMOSPHERE IOT PLATFORM ON ANOTHER PERSON’S OR ENTITY’S BEHALF. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING THE ATMOSPHERE IOT PLATFORM THAT YOU DID NOT LAWFULLY ACQUIRE THE RIGHT TO ACCESS OR USE, OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE ATMOSPHERE IOT PLATFORM.
This Agreement is a binding agreement between you ("End User," “Licensee,” "You" or “Your”) and Atmosphere IoT Corp., with an address of 6050 Annapolis Ln. N Minneapolis, MN 55446 (“Atmosphere IoT” or "Company"). This Agreement governs your download and use of Company’s client software agent (the“Atmosphere IoT Agent”), and access to and use of Company’s cloud-based services platform (the“Atmosphere IoT Cloud”) (collectively the Atmosphere IoT Platform”), which also includes “Atmosphere IoT’s Atmosphere Mobile Application,” (the downloading and use of which is not covered by this Agreement but is covered by a separate Mobile Application End User License Agreement) on any computing device owned or otherwise controlled by You (including a desktop, laptop, or tablet device – hereinafter “Computing Device”). Unless otherwise noted, reference to the “Atmosphere IoT Platform” means the Atmosphere IoT Cloud and Atmosphere IoT Agent collectively or individually.
1. License Grant. Subject to the terms of this Agreement and Your strict compliance thereof, Company grants You a limited, non-exclusive, non-sublicensable, nontransferable, revocable license during the Term to:
2. License Restrictions. Except to the extent that any enumerated restriction is prohibited by applicable law, Licensee shall not:
(a) use (including make any copies of) the Atmosphere IoT Platform or Documentation beyond the scope of the license granted under Section 1;
(b) provide any other person, including any subcontractor, independent contractor, affiliate or service provider of You, with access to or use of the Atmosphere IoT Platform or Documentation;
(c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Atmosphere IoT Platform;
(d) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Atmosphere IoT Platform or any part thereof;
(e) remove, delete, alter or obscure any titles, trademarks, service marks, trade names, legends, watermarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Atmosphere IoT Platform, including any copy thereof;
(f) provide use of the Atmosphere IoT Platform to a third party, including but not limited to providing an evaluation license to the Atmosphere IoT Platform to any other person or entity, or otherwise permitting any other person or entity to evaluate the Atmosphere IoT Platform;
(g) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Atmosphere IoT Platform;
(h) use the Atmosphere IoT Platform or Documentation, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage.
(i) engage in activities when using the Atmosphere IoT Platform that:
(i) violate the law, regulation, rule, court verdicts, resolutions or orders, or administrative measures that are legally binding;
(ii) may hinder public order or customs;
(iii) infringe intellectual property rights, such as copyrights, trademarks and patents, fame, privacy, and all other rights of the Company and/or a third party granted by the law or contract;
(iv) post or transmit any objectionable content including, but not limited to, violent or sexual expressions, expressions that lead to discrimination by race, national origin, creed, sex, social status, family origin, etc.;
(v) lead to the misrepresentation of the Company and/or a third party, or intentionally spread false information;
(vi) interfere with the servers and/or network systems related to the Atmosphere IoT Platform, such activities that abuse the Atmosphere IoT Platform and/or servers and/or network systems related to the Atmosphere IoT Platform by means of BOTs, cheat tools, or other technical measures;
(vii) exchange the right to use the Atmosphere IoT Platform into cash, property or other economic benefits without Company’s authorization;
(viii) use the Atmosphere IoT Platform for sales, marketing, advertisement, soliciting or other commercial purposes (except for those approved by the Company); or
(ix) other activities that may be deemed by the Company to be inappropriate.
Company shall have the sole and exclusive right to determine whether You have engaged in any of these restricted activities and to determine whether this Agreement with You should be terminated. Violations of this Agreement will not be tolerated by Company.
3. Proprietary Rights and Reservation of Rights. You hereby acknowledge and agree that:
(a) the Atmosphere IoT Platform, Documentation, and copies thereof are the exclusive proprietary technology and materials of Company (and/or Company’s third party licensors, as may be appropriate) and are protected by copyright laws and international treaties as well as other intellectual property laws;
(b) Company shall retain all ownership rights in and to the Atmosphere IoT Platform and the Documentation and any and all patents, copyrights, trade secrets and other proprietary rights relating thereto;
(c) the Atmosphere IoT Platform and Documentation are provided under license, and not sold, to You;
(d) You have no right, title, or interest in the Atmosphere IoT Platform or the Documentation under this Agreement, or any other rights thereto other than to download, access, and use the Atmosphere IoT Platform in accordance with the license granted in Section 1 above, and subject to all terms, conditions and restrictions, under this Agreement;
(e) Company reserves and shall retain all rights not expressly granted to You including Company’s entire right, title, and interest in and to the Atmosphere IoT Platform, copies of the Atmosphere IoT Platform, and in all related copyrights, trade secrets, patents, trademarks, service marks, domain names and any other intellectual property and proprietary rights therein or relating thereto, including but not limited to any registrations, applications, renewals, and extensions of such rights, except as expressly granted to You in this Agreement;
(f) any unauthorized copies, modifications, translations, adaptations, derivative works, or improvements of the Atmosphere IoT Platform or components thereof shall be exclusively owned by Company, and You hereby (i) assign and shall assign any and all rights, title, and interests in the foregoing to Company, (ii) will promptly sign any other documents necessary to perfect Company’s rights in and to the foregoing, and (iii) expressly waive any rights You may obtain inconsistent with the foregoing through application of law or otherwise;
(g) You shall safeguard the Atmosphere IoT Platform (including all copies thereof) from misappropriation, theft, misuse, unauthorized access and unauthorized use. You shall promptly notify Licensor if You become aware of any such misappropriation, theft, misuse, unauthorized access or unauthorized use and fully cooperate with Company, at Company’s sole expense, in any legal action taken by Licensor to enforce its rights in and to the Atmosphere IoT Platform.
(h) You hereby covenant that you will not assert any claim that the Atmosphere IoT Platform, components thereof, modifications or derivative works thereof created by or for Company infringe any intellectual property right owned or controlled by You.
4. Confidentiality You hereby acknowledge and agree:
(a) that the Atmosphere IoT Platform and Documentation contain proprietary and confidential information of Company, including the code of the Atmosphere IoT Platform, and that any disclosure by You of Company’s confidential information will cause immediate, irreparable harm to Company for which no adequate remedy at law exists, and for which equitable remedies, as well as any other available legal remedies, may be awarded by a court of competent jurisdiction;
(b) to maintain the confidentiality of the Atmosphere IoT Platform and Documentation, and other confidential information of Company using at least as great a degree of care as You use to maintain the confidentiality of Your own confidential information and in no case less than reasonably prudent care; and
(c) to limit access to the Atmosphere IoT Platform and Documentation to those persons employed by You and/or who are under Your direction who need to use the Atmosphere IoT Platform and be exposed to the Documentation for purposes permitted hereunder and who have been clearly informed of their obligation and agree to maintain the confidentiality of the Atmosphere IoT Platform and Documentation, and to use reasonable best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Atmosphere IoT Platform for the purpose of deriving or obtaining the source code of the Atmosphere IoT Platform by any means including, but not limited to, reverse engineering or disassembly.
6. Export Regulation and Geographic Restrictions. The Atmosphere IoT Platform may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Atmosphere IoT Platform to, or make the Atmosphere IoT Platform accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Atmosphere IoT Platform available outside the US. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
7. No Obligation of Support or Updates. You agree that Company has no obligation to provide Atmosphere IoT Platform support or updates, which may include upgrades, bug fixes, patches, enhancements and other error corrections and/or new features, maintenance, technical (including, but not limited to fielding and answering questions regarding use of the Atmosphere IoT Platform) or other support for the Atmosphere IoT Platform (collectively, including related documentation, "Support/Updates"), or to continue to provide or enable any particular features or functionality. Company may from time to time, however, in its sole discretion develop and provide Atmosphere IoT Platform Support/Updates without any notice to You. Support/Updates may also modify or delete in their entirety certain features and functionality. Based on Your Computing Device settings, when Your Computing Device is connected to the Internet either:
the Atmosphere IoT Agent may automatically download and install all available Support/Updates; or
You may receive notice of or be prompted to download and install available Support/Updates to the Atmosphere IoT Agent.
You shall promptly download and install all Support/Updates, and acknowledge and hereby agree that the Atmosphere IoT Platform or portions thereof may not properly operate should You fail to do so.
With respect to the Atmosphere IoT Cloud, Support/Updates may be made automatically without any need for your Computing Device to be connected to the Internet.
You further agree that all Support/Updates will be deemed part of the Atmosphere IoT Platform and be subject to all terms and conditions of this Agreement.
8. Third Party Materials. The Atmosphere IoT Platform may display, include or make available third-party content (including data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to You or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such third parties' terms and conditions.
10. Term and Termination.
(a) The term of Agreement commences when You download/install, access and/or use the Atmosphere IoT Platform and will continue in effect until terminated by You or Company as set forth in this Section 11 (the “Term”).
(b) You may terminate this Agreement by ceasing to access and use the Atmosphere IoT Platform and Documentation, and deleting all copies of the Atmosphere IoT Agent and Documentation.
(c) Company may terminate this Agreement at any time and for any reason in its sole discretion without notice to You. In addition, this Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to You under this Agreement will also terminate; and
(ii) You must cease all use of the Atmosphere IoT Platform and Documentation and delete all copies of the Atmosphere IoT Agent and Documentation.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
11. Disclaimer of Warranties. THE ATMOSPHERE IOT PLATFORM AND YOUR APPLICATION(S) ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE ATMOSPHERE SDK AND YOUR APPLICATION(S), INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE ATMOSPHERE IOT PLATFORM OR YOUR APPLICATION(S) WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE ATMOSPHERE IOT PLATFORM, YOUR APPLICATION(S) OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE ATMOSPHERE IOT PLATFORM.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Indemnification. You agree to defend (at Company request), indemnify, and hold Company harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of Your direct activities or those conducted on Your behalf): (i) Your download, access to, or use of the Atmosphere IoT Platform; (ii) Your breach or alleged breach of this Agreement; (iii) Your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) Your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (v) any misrepresentation made by You; or (vi) your creation, use, distribution, sale, offer for sale, of Your Application(s). You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You, and You will not in any event settle any claim without the prior written consent of Company. You agree that Company assumes no responsibility for the content You submit or make available through or per the use of the Atmosphere IoT Platform.
14. Entire Agreement. This Agreement and Schedule A constitute the entire agreement between the parties with respect to the Atmosphere IoT Platform (as defined herein), sets forth Company’s entire liability and Your exclusive remedy with respect to the Atmosphere IoT Platform, and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Atmosphere IoT Platform. You acknowledge that this Agreement is a complete statement of the agreement between You and Company with respect to the Atmosphere IoT Platform and, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Atmosphere IoT Platform.
15. Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
16. Assignment. You may not assign this Agreement or any interest in this Agreement without the prior written approval of Company.
17. Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
18. Independent Contractors. This Agreement shall not be construed to create any employment, partnership, joint venture, franchise or agency relationship between You and Company or to authorize either party to enter into any commitment or agreement binding on the other party.
19. Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the download, access to, and use of the Atmosphere IoT Platform.
20. Force Majeure. Company will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of Nature, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Company’s reasonable control.
21. Governing Law. This Agreement will be governed by Minnesota law, without regard to its choice of law principles, and You and Company hereby agree to submit to the exclusive jurisdiction of the Supreme Court of the State of Minnesota, with venue in Ramsey County, Minnesota, or of the United States District Court for the District of Minnesota with venue in Hennepin County, Minnesota.
22. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, if sent by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Company at the address set forth above and to You at the address provided at the time of registration to download, acquire access to and/or use of the Atmosphere IoT Platform (or to such other address as may be designated by a party from time to time in accordance with this Section 24).