These End User Terms and Conditions (“ Terms ”) are a contract between you and Atomic FI, Inc. (“ Atomic ”) and govern your use of Atomic’s direct deposit switching service, verification services, and any other products and services for which these Terms are presented to you (collectively, the “ Service ”) and, if applicable, your Atomic end-user account for the Service.
If you do not agree to these Terms, do not use the Service. By using the Service or by registering for or using an Atomic account, you accept and agree to bound by these Terms, including the mandatory arbitration provision, class action waiver, and limitations of liability included below.
1. About These Terms
2. About Atomic’s Service
The Service facilitates certain operations and reports, such as switching accounts for direct deposits from your employer or providing your financial institution with verification of your employment, income, or identity, that you select, initiate, or authorize through or in connection with the Service (“ Authorized Operations ”). The Service is typically accessed through a website, mobile app, or other interface (the “ Client Application ”) provided by or for a financial institution or other Atomic client with whom you have a relationship (the “ Client ”).
The Authorized Operations usually involve accessing your employer’s human resources website or payroll provider’s system (collectively or individually, the “ Payroll System ”) in order to obtain information needed by Atomic and the Client and to make any required changes.
Atomic may also offer its own front-end interface as part of the Service to let you access or manage certain information or features, which may involve creating an Atomic account. Atomic reserves the right to modify all or any part of the Service or to suspend or stop providing all or portions of the Service at any time.
3. Grant of Authority to Atomic to Act as Agent, and Power of Attorney
In order to protect and exercise your rights to your financial information and data, as well as your general rights as a consumer, as recognized under various federal and state laws, including and without limition, the Utah Consumer Privacy Act, Section 1033 of the Dodd-Frank Act, and Sections 1798.100 and 1798.185, of the California Consumer Privacy Act, as implemented by California Consumer Privacy Act Regulations Chapter 20, Sec 999.301, it may be necessary for Atomic to act as your authorized agent in order to access your Payroll System. By using the Service, you authorize Atomic to access your Payroll System on your behalf, as well as your individual account(s) for your Payroll System, as necessary in order to obtain your information in a readily useable format, and understand the functionality of your Payroll System in order to facilitate the efficient and orderly transfer of your information by reasonable means, including but not limited to using account login credentials you furnish, in order to perform the Authorized Operations. You acknowledge that this may involve passing information from your Payroll System to the Client, and may also involve accessing, modifying, adding to, or deleting information in your Payroll System, as needed to complete the Authorized Operations. By using the Service, you authorize Atomic to act as your agent, and also grant a limited power of attorney to Atomic, to do the foregoing on your behalf in connection with the Service.
This authorization to Atomic to act as your agent, as well as this limited power of attorney, includes the right for Atomic to act as your true and lawful agent and attorney-in-fact, with full power to act for you and in your name, place, and stead, in any and all capacities, to use your account access credentials, to access websites, servers, and accounts, including those of third parties as necessary to exercise and effectuate your rights under your behalf, and to access, retrieve, modify, use, and share documents and data, all as necessary or useful to perform Authorized Operations or as otherwise contemplated in these Terms, including to make direct deposit switches, verify your income, employment, or identity, and perform periodic reverifications of your credentials or any of the foregoing, with the full power and authority as your agent to do anything in connection with such activities that you could lawfully do directly.
You agree that the Client and the provider(s) of your Payroll System may rely on the foregoing grant of agency and limited power of attorney, and are authorized to provide Atomic with the access to the Payroll System necessary to facilitate an efficient and orderly transfer of your information to the Client, and information Atomic may need or request in connection with the Service, and are intended third-party beneficiaries of this provision.
This grant of agency and limited power of attorney will remain in effect as long as reasonably necessary for Atomic to provide the Service, unless earlier revoked by you in writing by notice to Atomic (in which case you acknowledge that Atomic will not be responsible for completing the Service, and you will indemnify Atomic for any liability for its resulting failure to do so).
5. Conditions of Use
Accurate Information. Atomic needs accurate information about you, including your access credentials for the Payroll System, in order to accurately perform the Service. You agree to provide true, accurate, current, and complete information about yourself and your account, and you agree not to misrepresent your identity or the account, nor to provide any information regarding any other person’s account unless you are authorized to do so as their agent (see “ Agents ” below). You represent and warrant that you are entitled to submit any data that you furnish to Atomic or through the Service for the uses described herein, and that such data is accurate, complete, and up to date.
- You may not (and you agree not to): use the Service for anything other than to select, initiate, authorize, receive, or manage Authorized Operations;
- copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service or Atomic’s related documentation (as applicable) in any form or media or by any means;
- reverse-engineer the Service or access or decompile Atomic’s underlying software, or attempt to do so or assist, direct, or authorize any third party to do so, except to the extent (if any) that applicable law would prohibit this restriction;
- access all or any part of the Service or its associated documentation in order to provide services to third parties or to build a product or service which competes with any part of the Service;
- use the Service for any fraudulent, criminal, tortious, or other unlawful or inappropriate purpose;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Service, or make the Service available to any third party;
- use any method designed to scrape, mine, or extract data from or through the Service, nor develop any application or interface that interacts with the Service, without Atomic’s prior written consent;
- introduce to or through the Service any viruses or other files, code, or programs designed to interrupt, destroy, interfere with, intercept, or limit the functionality of the Service or any data or systems;
- attempt to circumvent any security or authentication measures for the Service, or to obtain, or assist third parties in obtaining, access to the Service other than as provided by Atomic (or, where applicable, the Client) under these Terms.
Age. You must be at least 18 years of age, and above the age of majority as defined by the laws of the location in which you live, to use the Service.
No Advice. You acknowledge that Atomic is not a fiduciary, financial institution, financial or investment adviser, or provider of investment, tax, or legal advice, and does not endorse any company, property, product, service, security, or instrument.
Payment of Fees . You acknowledge that the Authorized Operations may be subject to fees charged by the Client or the provider of your Payroll System in connection with your account with them. You are responsible for apprising yourself of, and for paying, any such fees.
Agents. If an agent uses the Service on behalf of another person, (a) all references to “you” throughout these Terms will include that person; (b) the agent represents that they are authorized to accept these Terms on that person’s behalf; and (c) in the event that the agent or the other person violates these Terms, the agent and other person both agree to be responsible to Atomic for such violation.
Atomic Accounts. If Atomic offers accounts for the Services and you register or allow a Client to register for you: (a) you must provide accurate registration information and promptly update this information if it changes, and (b) you agree and understand that you are responsible for maintaining the confidentiality and security of your Atomic login information and for all activity (including the activity of others) occurring under your account or using your login information.
Security Notification. You agree to promptly notify Atomic if you discover, suspect, or are informed of unauthorized account access or unauthorized use of your login information. In the instance of a breach of your accounts as contemplated under this Section, Atomic should promptly be notified at firstname.lastname@example.org .
Violations and Enforceability. Atomic may immediately suspend or terminate your access to the Service in the event it determines or believes that you have violated or will violate any of the foregoing conditions or prohibitions, or if it otherwise believes in its sole discretion that your access to or use of the Services may expose Atomic or others to any harm or liability. The enforcement of these Terms is solely at Atomic’s discretion and the failure to do so does not constitute a waiver of Atomic’s right to enforce in other instances or at a future time.
6. Clients and Payroll Systems
Your relationship with the Client and provider(s) of the Payroll System, and their provision,
processing, and use of any data, reports, or other output in relation to the Service, will be subject to your applicable agreement(s) with those entities, including their privacy policies. ATOMIC DOES NOT CONTROL THE CLIENT’S USE OF YOUR DATA OR OF ANY REPORTS OR OTHER OUTPUT OF THE SERVICES. ATOMIC’S INTEGRATION WITH CLIENTS AND PAYROLL SYSTEMS IS PROVIDED AS A CONVENIENCE TO YOU, AND WE MAKE NO REPRESENTATIONS OR ENDORSEMENTS REGARDING, AND TAKE NO RESPONSIBILITY FOR, THOSE ENTITIES OR THEIR PRODUCTS, SERVICES, ACTS, OR OMISSIONS, INCLUDING ANY CLIENT APPLICATION OR EMPLOYER’S SYSTEM OR ANY CONTENTS THEREOF.
7. Intellectual Property Ownership
Services. Atomic and its licensors, as applicable, reserve and retain all right, title, and interest in and to the Service, all associated software and technologies, and all intellectual property rights therein, including any reports and data generated by Atomic in connection with the Services; provided, however, that Atomic does not claim ownership of the login credentials or other information that you submit when registering for or using the Service, or any data about you that Atomic receives from the Client or your Payroll System.
Feedback. To the extent you provide Atomic with any suggestions, inquiries, or other feedback relating to the Service (“ Feedback ”), Atomic will own (and you hereby assign to Atomic) all right, title, and interest in and to such Feedback. You acknowledge and represent that any Feedback is given voluntarily and is not subject to any obligation or expectation of confidentiality. You understand that Atomic does not pay any compensation for Feedback, and is under no obligation to respond to or use any Feedback.
Branding. Atomic’s and its Clients’ trademarks and logos, product and service names, slogans, and other branding, including the look and feel of the Service, are trademarks or other property of Atomic or its applicable Clients, as the case may be. You may not copy, modify, or use them without express permission from the owner.
You agree to defend, indemnify, and hold Atomic, its affiliates, and its and their respective officers,directors, employees, agents, shareholders, licensors, licensees, customers (including Client), and suppliers (together, the “ Atomic Parties ”), harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs, and expenses (including attorney fees), arising from or in connection with your use of the Service, your conduct in connection with the Service, your violation of these Terms, or your infringement or other violation of any third-party rights or applicable laws or regulations. You agree that Atomic may, at its option (and at your expense), control the defense or settlement of any such claims by third parties, in which case you agree to cooperate with the Atomic Parties in defending any such third-party claims.
This indemnification shall apply to the fullest extent permitted by applicable law and is in addition to,and not in lieu of, any other indemnities set forth in a written agreement between you and the Atomic Parties.
THE SERVICE IS PROVIDED “AS IS,” AND MAY BE SUBJECT TO BUGS, ERRORS, AND OTHER PROBLEMS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ATOMIC PARTIES DO NOT MAKE ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICE IS FREE FROM DEFECTS, VIRUSES, SECURITY VULNERABILITIES, OR INTERRUPTIONS.
YOUR USE OF THE SERVICE AND ALL INFORMATION, CONTENT, PRODUCTS, AND SERVICES INCLUDED IN, LINKED TO, OR ACCESSIBLE THROUGH THE SERVICE IS AT YOUR SOLE RISK. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY, AVAILABILITY, PERFORMANCE. YOU SHOULD VERIFY ALL RESULTS OF THE SERVICE.
THE SERVICE IS CONTROLLED AND OFFERED BY ATOMIC FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. YOU ARE RESPONSIBLE FOR DETERMINING WHETHER, HOW, AND WHERE YOU MAY USE THE SERVICE UNDER LOCAL AND ALL OTHER APPLICABLE LAWS, RESTRICTIONS, AND REGULATIONS.
10. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, THE ATOMIC PARTIES WILL NOT BE LIABLE UNDER THESE TERMS FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; (B) LOSS OF OR ERRORS IN DATA, OR LOSS OF OR INTERRUPTIONS TO ACCESS OR USE OF THE SERVICE; OR (C) COST OF COVER OR LOSS OF BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE ATOMIC PARTIES KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ATOMIC PARTIES’ AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS WILL NOT EXCEED ONE HUNDRED DOLLARS (US$100.00). THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. Arbitration; Class Action Waiver; Disputes
Mandatory Arbitration. All claims and disputes, including all statutory claims and disputes, arising out of or relating to these Terms or your use of the Service will be finally resolved by binding arbitration on an individual basis, unless you opt out of arbitration as explicitly described below, except that you and Atomic are not required to arbitrate any dispute in which either party seeks equitable relief for alleged infringement or misappropriation of copyrights, trademarks, trade names, logos, trade secrets, or patents. This means that, except for the equitable relief described in the previous sentence, neither Atomic nor you will sue in court before a judge or jury, unless you opt out of arbitration as provided below.
Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“ AAA ”), in accordance with its Consumer Arbitration Rules (the “ Rules ”), except to the extent they conflict with these Terms. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The Rules are available online at www.adr.org or by calling AAA at 1-800-778-7879.
Arbitration Procedures. For any arbitration under these Terms or in relation to the Services, one neutral arbitrator (appointed in accordance with the Rules) will decide the dispute, and the arbitrator’s decision will be final. The arbitrator may award declaratory or injunctive relief only for the individual claims between Atomic and you. Any claims or disputes involving less than US $10,000 may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the amount sought is US $10,000 or more, the right to an in-person oral hearing will be determined by the Rules. The arbitrator will be bound to follow applicable federal and state laws and regulations in deciding all issues and in rendering any award. Atomic and you will be entitled to invoke the rules of discovery applicable to state court proceedings. The arbitration proceedings are not appealable, and any party to any award rendered in any arbitration proceeding will be entitled to have judgment entered on that award.
Arbitration Venue. Any hearings will be held in a location within 100 miles of your residence, unless youreside outside of the United States or unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any hearings. If non-appearance arbitration is elected, the arbitration will be conducted by phone, online, written submissions, or a combination of the three, at the election of the party initiating arbitration, and the arbitration will not involve a personal appearance by parties or witnesses unless the parties mutually agree otherwise. The language of the arbitration will be English.
Costs. Atomic will cover the costs of the initial arbitration fees, except that if you demand arbitration first, you may be required to pay the claimant’s initial arbitration filing fees or case management fees required by the Rules up to $125 USD, and if the arbitrator finds your complaint to be frivolous, you agree to reimburse Atomic’s costs. The arbitrator may not award or assess punitive damages against either party.
Class-Action Waiver. ATOMIC AND YOU AGREE THAT ANY PROCEEDINGS TO RESOLVE ANY DISPUTE, INCLUDING ARBITRATION AND LITIGATION IN COURT, WILL BE CONDUCTED INDIVIDUALLY ONLY. Neither Atomic nor you will seek (or be permitted) to have any dispute heard as a class action, a class wide arbitration, a private attorney-general action, or any other proceeding in which either of Atomic or you act(s) or propose(s) to act as a representative for others. Atomic and you also agree that no arbitration or other proceeding will be joined or combined with another arbitration or proceeding
without the written consent of Atomic, you, and every other party to the affected arbitration(s) or
proceeding(s). TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN ANY ACTION AGAINST ATOMIC AS A REPRESENTATIVE OR MEMBER OF A CLASS.
Opting Out . You may opt out of mandatory arbitration under the provisions set forth above; to do so, you must notify Atomic in writing of your decision to opt out in accordance with this Section no later than thirty (30) days after first using the Services under these Terms. If you opt out as described in this paragraph, neither you nor Atomic can force the other to arbitrate under these Terms, and disputes will be resolved as described in the following paragraph. Your notice must include your name and address, your username and the email address you used to set up your account for the Service (if applicable), and an unequivocal statement that you want to opt out of arbitration under these Terms. Send such notice to: 2825 E Cottonwood Pkwy Suite 500, Cottonwood Heights, UT 84121 USA. In the event of a dispute between you and Atomic, to invoke your opt-out right, you must produce a copy of your opt-out notice, as well as proof of mailing of your opt-out notice within the prescribed period. Opting out does not affect any previous, other, or future arbitration agreement between you and Atomic.
Courts. If you opt out of arbitration, each of you and Atomic irrevocably (a) consents to the exclusive jurisdiction and venue of the state and federal courts in the State of Utah in connection with any matter arising out of these Terms, (b) waives any objection to such jurisdiction or venue, (c) agrees not to commence any legal proceedings related hereto except in such courts, (d) consents to and agrees to accept service of process to vest personal jurisdiction over it in any such courts and (e) waives any right to trial by jury in any action in connection with these Terms.
Governing Law. Except to the extent inconsistent with or preempted by federal law, the laws of the State of Utah, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and Atomic.
Amendments to Disputes Clause. These arbitration and disputes provisions may be amended from time to time in accordance with Section 1 of these Terms. You may reject any change Atomic makes to these arbitration and disputes provisions (other than changes to Atomic’s addresses for notices) by sending Atomic written notice within thirty (30) days after first becoming subject to the amended Terms. Send such notice rejecting such changes to: 2825 E Cottonwood Pkwy Suite 500, Cottonwood Heights, UT 84121 USA. Otherwise, your continued use of the Service beyond such thirty (30) day period indicates your agreement to the amended arbitration and disputes provisions.
Temporary Injunctive Relief through the Court. In aid of arbitration, Atomic or you may seek temporary and/or preliminary injunctive relief, without the obligation of posting a bond, in both the state and federal courts of Salt Lake County, Utah at any time before an arbitration demand has been filed and served, or before an arbitrator has been selected.
Confidentiality of Arbitration. The arbitrator, Atomic and you shall maintain the confidentiality of any arbitration proceedings, communications, judgments, and awards. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for, or conduct, the arbitration hearing on the merits, in connection with a court application for a preliminary remedy, or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
Timing. Any claim arising out of, or related to, these Terms or the Service must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred and may not be asserted by either party. If this section is deemed to be unenforceable for any reason, then the claim shall be brought in the shortest time period allowed for under the law.
12. Entire Agreement
Electronic Notices and Disclosures . You acknowledge and agree that Atomic may provide notices and other disclosures electronically (with the same effect as a paper copy) by posting such notices or other disclosures electronically through the Service or on Atomic’s website or by emailing you at any email address provided to Atomic by you. Such notices or other disclosures shall be considered received by you after being posted on the Service or Atomic’s website or twenty-four (24) hours after being emailed to you.
Call Recording. You agree that Atomic and its agents, representatives, affiliates, and anyone calling or receiving your call on Atomic’s behalf may record the call. You agree that such recordings may be kept for training purposes, and as a record of your interaction with Atomic, and may be used as evidence in any legal or arbitration proceedings related to you that may occur. Severability. If any provision or provisions of these Terms shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected thereby and Atomic and you shall negotiate replacement provisions, for those provisions which are held invalid, illegal, or unenforceable, which as closely as possible express the intent of those original provisions.
Waiver. The failure of Atomic to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. Headings. The section titles in these Terms are for convenience only and have no legal or contractual effect.
Survival. Any rights and obligations which by their nature extend beyond the terms of these Terms shall survive and continue after any expiration or termination and shall bind you and their legal representatives, successors, heirs, and assigns, where assignment is expressly permitted.
For Questions on these Terms and Conditions, please contact:
Atomic FI, Inc.
2825 Cottonwood Parkway #500
Salt Lake City, UT 84121