IF YOU HAVE RIGHTS UNDER THE CALIFORNIA CONSUMER PRIVACY ACT, PLEASE SEE THE CCPA SUPPLEMENT BELOW . IF YOU HAVE RIGHTS AS A RESIDENT OF NEVADA, PLEASE SEE THE YOUR NEVADA PRIVACY RIGHTS SECTION BELOW.
I. Information We Collect
We may collect information from you when you use the Service, contact or interact with us, and voluntarily provide us with your comments and other content in connection with using the Service.
- When you authorize Atomic to access your personal information held by financial institutions, employers, and payroll providers to complete the Deposit, Identify, or Verify operations, we may collect your login credentials, including your username and password, for your payroll provider, employer HR site, and/or financial institution.
- When you authorize the Service’s “Deposit” feature to switch the bank account to which your direct deposit is credited, we may collect your account number, routing number, account type, distribution type, and distribution amount.
- When you authorize the Service’s “Identify” feature to verify your identity, we may collect your first name, last name, date of birth, email address, telephone number, social security number, and address.
- When you authorize the Service’s “Verify” feature to verify Your income and employment, we may collect your income, income type, employee type, employment status, job title, start date, weekly hours, pay cycle, information related to your statements and accounts, and other employment and tax documentation, such as W-2 forms.
- When you use the Service through a bank or other Atomic customer who has enabled “Linked Accounts,” we may collect and store your login credentials for the linked account(s) to enable the Atomic customer to perform periodic reverifications or updates of the information in your linked account(s). The relevant Atomic customer should inform you, before you use the Service, that Linked Accounts have been enabled. For more information regarding Linked Accounts, and your choices regarding Linked Accounts, please contact the Atomic customer whose mobile or web-faced interface you are using.
- We may collect information about you from third-party sources.
- Financial Institutions. When you use the Service, you authorize us to retrieve your personal information from your financial institution.
- Financial Technology Companies and Digital Platforms. When you use the Service, you authorize us to receive personal information from financial technology companies and digital platforms providing services to your financial institution or payroll provider.
- Payroll Providers and Employers. When you use the Service, you authorize us to retrieve your personal information from your designated payroll provider or employer.
We automatically collect information regarding each user of our Service, including your IP address, the Service features you use and the time of your use, your device information (e.g., device model and operating system version), which we deidentify, and other aggregated information that cannot be used to specifically identify you when you use the Service.
II. How We Use Information
We use the information that we collect for several purposes, including:
- The purposes for which it was provided;
- To provide information and respond to requests for services from you or from your financial institution, your payroll provider, or the Atomic customer whose mobile or web-faced interface you are using;
- To process and respond to your inquiries and comments;
- To administer, operate, and improve the Service;
- To enhance your experience using the Service;
- To generate and review reports and data about our user base and Service usage patterns;
- To analyze the accuracy, effectiveness, usability, or popularity of the Service;
- To compile aggregate data for internal and external business purposes;
- To prevent fraud and abuse of the Service and to otherwise protect you and our business;
- To assist law enforcement and respond to subpoenas;
III. How Information is Disclosed
- Financial Institutions, Financial Technology Providers, and Digital Platforms. When you use the Service, you authorize us to share your information with your financial institution, financial technology provider, or digital platform.
- Payroll Providers and Employers. When you use the Service, you authorize us to share your information with your payroll provider or employer.
- Business Changes. If we become involved in a merger, acquisition, sale of assets, joint venture, securities offering, bankruptcy, reorganization, liquidation, dissolution, or other transaction, or if the ownership of all or substantially all of our business otherwise changes, we may transfer your information to a third party or parties in connection therewith.
- Investigations and Law. We may disclose information about you to third parties if we believe that such disclosure is necessary to:
- Comply with the law or guidance from relevant governmental or regulatory authorities or cooperate with government or law enforcement officials or private parties;
- Investigate, prevent, or take action regarding suspected illegal activities, suspected fraud, the rights, reputation, safety, and property of us, users, or others, or violations of our policies or other agreements with us;
- Respond to claims and legal process (for example, subpoenas); and/or
- Protect against legal liability.
- Aggregated Information. We may share aggregated information relating to users of the Service with affiliated or unaffiliated third parties. This aggregated information does not contain personal information about any user.
- Analytics. We use third-party analytics tools to better understand how people are using the Service. These tools aggregate deidentified data about our users’ use of the Service and their preferences and activities. This information may be used to analyze data and determine the effectiveness of certain features or content, among other things.
We implement a variety of security measures to protect the safety of your personal information when you enter, submit, or access your personal information.
As part of our safeguards, we protect the confidentiality of social security numbers, prohibit unlawful disclosure of social security numbers, and limit access to social security numbers. To that end, we maintain a comprehensive written information security program, which contains appropriate administrative, technical, and organizational safeguards to ensure the security, integrity, availability, resilience, and confidentiality of social security numbers, as well as other personal information that we collect, and that meets generally-accepted industry standards. We additionally use industry-standard encryption tools, and we safeguard the security and confidentiality of all encryption keys associated with encrypted information. Furthermore, we maintain physical access controls that secure relevant facilities, equipment, and hardware used in connection with processing social security numbers, including an access control system that enables us to monitor and control physical access to our facilities.
We also implement controls to limit access to social security numbers. We abide by the “principle of least privilege,” pursuant to which we permit access to social security numbers by our personnel solely on a need-to-know basis, and we promptly terminate our personnel’s access to social security numbers when such access is no longer required. We further implement measures to prevent social security numbers from being downloaded or otherwise copied to local drives or removable media.
While we take reasonable measures to protect the information you submit via the Service against loss, theft, and unauthorized use, disclosure, or modification, we cannot guarantee its absolute security. No Internet, email, or mobile application transmission is ever fully secure or error free. Email or other messages sent through the Service may not be secure. You should use caution whenever submitting information through the Service and take special care in deciding with which information you provide us.
We cannot guarantee that transmissions of your personal information will be fully secure and that third parties will never be able to defeat our security measures or the security measures of our partners. WE ASSUME NO LIABILITY FOR DISCLOSURE OF YOUR INFORMATION DUE TO TRANSMISSION ERRORS, THIRD-PARTY ACCESS, OR CAUSES BEYOND OUR CONTROL.
If you use our Service outside of the United States, you consent to having your data transferred to the United States.
V. Data Retention Policy, Managing Your Information
We may retain your information, or a portion thereof, for as long as you use the Service and for a reasonable time thereafter. We may maintain anonymized or aggregated data, including usage data, for analytics purposes. We may retain and use your information as necessary to comply with our legal obligations, resolve disputes, and/or for the period required by laws in applicable jurisdictions. Please note that some or all of the information we have collected may be required for the Service to function properly.
VI. Links to Other Services or Appllications
VII. Your Choices Regarding Your Information
Due to the nature of the Service, which is designed to operate in most cases as a one-time exchange of information, we do not generally retain your personal information. However, in those cases where we do store your personal information, if you would like to change or update your information, you may email us at email@example.com. For some uses of your information, such as in the case of our Linked Accounts feature, you may need to contact the bank or other Atomic customer whose mobile or web-faced interface you are using.
Our Service is not intended for children under 18 years of age. We do not knowingly collect personal information from an individual under age 18. If you are under the age of 18, please do not submit any personal information through the Service. If you have reason to believe that we may have accidentally received personal information from an individual under age 18, please contact us immediately at firstname.lastname@example.org.
X. How to Contact Us
XI. Your Nevada Privacy Rights
The Nevada Revised Statutes (NRS 603A.300 et seq.) permit a Nevada consumer to direct an operator of an Internet website or online service to refrain from making any sale of any covered information the operator has collected or will collect about that consumer. You may submit a request pursuant to this directive by emailing us at email@example.com. We will provide further information about how we verify the authenticity of the request and your identity.
XII. CCPA Supplement- Last Updated November 2020
California residents have the following rights. You will not need to create an account to exercise your rights. To exercise one of these rights, please provide a verifiable consumer request by calling us at (800) 494 9407, or emailing us at firstname.lastname@example.org. California residents may:
- Request that we delete personal information about you that we may have collected.
- Request that, for personal information that we have collected in the preceding 12 months, we disclose, free of charge (unless your requests are manifestly unfounded or excessive), the categories of personal information that we have collected about you, the categories of sources from which the personal information was collected, the business or commercial purpose for collecting or selling personal information, the categories of third parties with whom we share personal information, and the specific pieces of personal information we have collected about you.
- Request that, for personal information that we have sold or disclosed for a business purpose in the preceding 12 months, we disclose, free of charge (unless your requests are manifestly unfounded or excessive), the categories of personal information that we have collected about you, the categories of personal information that we have sold about you, the categories of third parties to whom each category of personal information was sold, the categories of personal information that we have disclosed about you for a business purpose, and the categories of third parties to whom each category of personal information was disclosed.
Under the California Consumer Privacy Act of 2018 (“CCPA”), “sell” means sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration. While the CCPA empowers California residents to direct us, at any time, not to sell their personal information, at this time, we do not sell personal information within the meaning of the CCPA. Furthermore, we do not have actual knowledge that we sell the personal information of minors under 16 years of age.
Before we can fulfill the requests to know and delete noted above, we must verify your identity. We will require you to provide us with your: (1) income level, job title, and start date, if you are using the Verify feature of the Service, (2) account number, routing number, and account type, if you are using the Deposit feature of the Service, and/or (3) name, date of birth, and social security number, if you are using the Identify feature of the Service, together with a signed declaration under penalty of perjury that you are the consumer whose personal information is the subject of the request. We will match this information to the personal information we maintain.
You can also authorize another person, called an agent, to exercise your rights on your behalf. You must provide the authorized agent written and signed permission to act on your behalf. Please note that we may require you to verify your identity directly with us. We may also require you to directly confirm with us that you have provided the authorized agent permission to submit a request on your behalf. An authorized agent can make a request on your behalf by either calling us at (800) 494-9407 or by emailing us at email@example.com.
We may not discriminate against you because you exercised any of your rights under the CCPA, including, but not limited to, by:
- Denying goods or services to you.
- Charging different prices or rates for goods or services, including through the use of discounts or other benefits or imposing penalties.
- Providing a different level or quality of goods or services to you.
- Suggesting that you will receive a different price or rate for goods or services or a different level or quality of goods or services.
|Categories of personal information collected in last 12 months||Purposes for which personal information will be used|
|Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, internet protocol address, email address, account name, account password, social security number, or other similar identifiers (including login credentials for your payroll provider and/or employer with which our Service connects)||Processing or fulfilling orders and transactions; creating, maintaining, and servicing accounts; providing customer service; verifying customer information; undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by Atomic, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by Atomic; detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity; debugging to identify and repair errors that impair existing intended functionality; undertaking internal research for technological development and demonstration|
|Categories of personal information described in subdivision (e) of Section 1798.80 (California Customer Records statute, Cal. Civ. Code 1798.80(e)), such as name, social security number, address, telephone number, employment, employment history, bank account number, and or any other financial information||Processing or fulfilling orders and transactions; creating, maintaining, and servicing accounts; providing customer service; verifying customer information; undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by Atomic, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by Atomic; detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity; debugging to identify and repair errors that impair existing intended functionality; undertaking internal research for technological development and demonstration|
|Characteristics of protected classifications under California or federal law||Processing or fulfilling orders and transactions; creating, maintaining, and servicing accounts; providing customer service; verifying customer information; undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by Atomic, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by Atomic; debugging to identify and repair errors that impair existing intended functionality; undertaking internal research for technological development and demonstration; detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity|
|Commercial information, including records of products purchased, obtained, or considered, or other purchasing or consuming histories or tendencies||Processing or fulfilling orders and transactions; creating, maintaining, and servicing accounts; providing customer service; verifying customer information; undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by Atomic, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by Atomic; detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity; undertaking internal research for technological development and demonstration; debugging to identify and repair errors that impair existing intended functionality|
|Internet or other electronic network activity information, including browsing history, search history, information regarding your interaction with an Internet website, application, or advertisement||Processing or fulfilling orders and transactions; creating, maintaining, and servicing accounts; providing customer service; verifying customer information; undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by Atomic, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by Atomic; detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity; debugging to identify and repair errors that impair existing intended functionality; undertaking internal research for technological development and demonstration|
|Professional or employment-related information|
|Categories of sources from which personal information is collected|
|Financial Technology Companies and Digital Platforms|
|Categories of third parties with which we share personal information|
|Financial Technology Companies and Digital Platforms|
At this time, we do not sell personal information within the meaning of the CCPA, and we have not sold any personal information to third parties in the preceding 12 months.
|Categories of personal information that we have disclosed for business purposes in last 12 months||Categories of third parties to whom the information was disclosed|
|Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, internet protocol address, email address, account name, account password, social security number, or other similar identifiers (including login credentials for your payroll provider and/or financial institution accounts with which our Service connects)||Employers; Financial Institutions; Hosting Providers; Payroll Providers|
|Categories of personal information described in subdivision (e) of Section 1798.80 (California Customer Records statute, Cal. Civ. Code 1798.80(e)), such as name, social security number, address, telephone number, employment, employment history, bank account number, and credit card number, debit card number, or any other financial information||Employers; Financial Institutions; Hosting Providers; Payroll Providers|
|Characteristics of protected classifications under California or federal law||Employers; Financial Institutions; Hosting Providers; Payroll Providers|
|Commercial information, including records of products purchased, obtained, or considered, or other purchasing or consuming histories or tendencies||Employers; Financial Institutions; Hosting Providers; Payroll Providers|
|Internet or other electronic network activity information, including browsing history, search history, information regarding your interaction with an Internet website, application, or advertisement||Employers; Financial Institutions; Hosting Providers; Payroll Providers|
|Professional or employment-related information||Employers; Financial Institutions; Hosting Providers; Payroll Providers|
For more information about our information collection practices and procedures and for more information about the rights of California residents under the CCPA
XIII. Information Collected From Other Websites and Mobile Applications and Do Not Track Policy
Your browser or device may offer you a “Do Not Track” option, which allows you to signal to operators of websites, web applications, mobile applications, and services (including behavioral advertising services) that you do not wish such operators to track certain of your online activities over time and/or across different websites or applications. While the Service does not support Do Not Track requests at this time, the Service does not currently contain any cookies or tracking functionalities.
XIV. Shine the Light Notice
Terms And Conditions
Last modified December 8, 2020
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 (each, an “Employer’s System”) in order to obtain information needed by 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. Power of Attorney
By using the Service, you authorize Atomic to access your account(s) for your Employer’s System, using account login credentials you furnish, in order to perform the Authorized Operations. You acknowledge that this may involve passing information from your Employer’s System to the Client, and may also involve modifying, adding to, or deleting information in your Employer’s System, as needed to complete the Authorized Operations. You grant a limited power of attorney to Atomic to do the foregoing on your behalf in connection with the Service.
This limited power of attorney includes the right for Atomic to act as your true and lawful attorney-in-fact and agent, 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, 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 to do anything in connection with such activities that you could lawfully do by an agent.
You agree that the Client and the provider(s) of your Employer’s System may rely on the foregoing limited power of attorney, are authorized to provide Atomic with the access and information Atomic requests in connection with the Service, and are intended third-party beneficiaries of this provision.
This 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
AccurateInformation. Atomic needs accurate information about you, including your access credentials for the Employer’s 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.
Prohibited Conduct. 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 Employer’s System in connection with your account with them. You are responsible for apprising yourself of, and for paying, any such fees.
Agents. I f 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 Employers’ Systems
Your relationship with the Client and provider(s) of the Employer’s 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 EMPLOYER’S 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.A tomicanditslicensors,asapplicable,reserveandretainallright,title,andinterestinandto 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 Employer’s System.
Feedback. T o 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
MandatoryArbitration.A llclaimsanddisputes,includingallstatutoryclaimsanddisputes,arisingoutof 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 you reside 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. I f 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. T he 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