Atlas5D Solution Subscriber Agreement

THIS ATLAS5D SOLUTION SUBSCRIBER AGREEMENT (THE “AGREEMENT”) IS A BINDING CONTRACT ENTERED INTO BY AND BETWEEN ATLAS5D, INC. (“ATLAS5D”) AND YOU (THE “SUBSCRIBER”), AS OF THE EFFECTIVE DATE, REGARDING USE OF THE ATLAS5D SOLUTION (AS DEFINED BELOW).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE ATLAS5D SOLUTION. BY CLICKING “I ACCEPT”, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS IMMEDIATELY UPON ACCESSING THE ATLAS5D SOLUTION.

IF AT ANY TIME YOU DO NOT AGREE TO ANY TERMS OF THIS AGREEMENT, ATLAS5D WILL NOT AND DOES NOT LICENSE THE ATLAS5D SOLUTION TO YOU AND YOU MUST NOT USE OR OTHERWISE ACCESS ANY COMPONENT OF THE ATLAS5D SOLUTION.

Atlas5D may at any time, at its sole discretion, update and revise this Agreement by including an amended Agreement in a future update of the Atlas5D Solution.

In consideration of the mutual covenants and promises contained in this Agreement, the parties hereto agree as follows:

1. DEFINITIONS

1.1. “Atlas5D Device” means the hardware device upon which the Atlas5D System is loaded and delivered to the Subscriber.
1.2. “Atlas5D Solution” means the Atlas5D System together with the Atlas5D Device.
1.3. “Atlas5D System” means the software, Documentation, and related materials provided to you by Atlas5D.
1.4. “Documentation” means the published documentation associated with the Atlas5D Solution, which may be revised from time to time by Atlas5D, and which may be found at www.atlas5d.com/userdocumentation .
1.5. “Effective Date” means the later date that you click “I accept” and pay the fees set out in Section 4.2.
1.6. “Monitored Person(s)” means individuals who expressly consent to having his/her actions monitored by the Atlas5D Solution.
1.7. “Privacy Policy” means the privacy policy as publicly available and updated by Atlas5D, which may be found at this link: www.atlas5d.com/privacypolicy .
1.8. “Recipient” means the Subscriber and individuals designated by the Subscriber to receive Reports.
1.9. “Reports” means visual, graphical, and textual information relating to a Monitored Person that is transmitted electronically from the Atlas5D Solution to the designated Subscriber or Recipient.

2. LICENSE GRANT; LIMITATIONS; INTELLECTUAL PROPERTY.

2.1. License. Subject to the terms and conditions of this Agreement and during the Term, Atlas5D grants to Subscriber a limited, personal, non-exclusive, non-sublicensable, non-transferable, fee-based, terminable, revocable license to: (i) use the Atlas5D System in object code form (but not source code) as installed in the Atlas5D Device, solely in accordance with the Documentation, and solely for Subscriber’s personal, non-commercial purposes; and (ii) use the Atlas5D Solution solely in accordance with the Documentation and solely for Subscriber’s personal, non-commercial purposes.

2.2. No Reverse Engineering; Prohibited Use. Subscriber shall not, and shall not allow any Monitored Person, Recipient, or other third party copy, sell, rent, lease, assign, transfer, grant a security interest in or to, modify, adapt, make derivative works of, disassemble, reverse compile or otherwise reverse engineer or exploit the Atlas5D Solution, in whole or in part, including any updates, upgrades or other modifications made by Atlas5D. Subscriber shall not, and shall not allow any third party to: (i) use the Atlas5D Device for any purpose other than the use of the Atlas5D Solution in accordance with the terms of this Agreement; or (ii) download any third party software or applications to the Atlas5D Device; (iii) use the Atlas5D Solution except as expressly authorized in this Agreement; (iv) use the Atlas5D Solution to monitor any individual other than a Monitored Person as defined above; (v) use any aspect of the Atlas5D Solution to build a similar or competitive product or service; (vi) use the Atlas5D Solution in any manner that is contrary to applicable federal, state, or international laws or regulations or in violation of any third party rights of privacy or intellectual property rights; (vii) publish, post, transmit or otherwise send any Report or any other information or data about a Monitored Person based on or derived from the Atlas5D Solution without the express consent of the Monitored Person; or (viii) in violation of the Atlas5D Privacy Policy. Subscriber is solely responsible for the breach of this Agreement by any Recipient, Monitored Person, or third party to whom Subscriber provides, allows, or enables access to or reasonably believes may have access to the Atlas5D Solution or any Report.

2.3. Feedback. Subscriber may from time to time propose to Atlas5D suggestions or comments to the Atlas5D Solution. Subscriber agrees that Atlas5D shall be free to use, disclose, reproduce, license, or otherwise distribute and fully exploit such feedback provided to Atlas5D entirely without obligation or restriction of any kind on account of intellectual property or otherwise.

2.4. Intellectual Property Rights. Subscriber agrees that all rights, title and interest in and to all intellectual property rights in the Atlas5D Solution and all modifications, extensions, customizations, scripts or other derivative works of the Atlas5D System provided or developed by Atlas5D are owned exclusively by Atlas5D or its licensors. No rights to the Atlas5D Solution is granted to Subscriber, any Recipient, or any Monitored Person except as expressly granted under this Section 2. Neither Subscriber, Recipient(s), nor Monitored Person(s) shall use or display any Atlas5D trademarks without express prior written permission from Atlas5D.

3. RIGHTS AND OBLIGATIONS.

3.1. Required Consent. Subscriber shall obtain all consents from, and provide all notices to, each Monitored Person and each Recipient as legally required under applicable federal, state and international laws, rules and regulations, including applicable privacy and monitoring laws, prior to using the Atlas5D Solution to: (i) track, capture images or otherwise monitor each Monitored Person; (ii) generate any Report containing any information relating to a Monitored Person; or (iii) transmit any Report to a Recipient. Subscriber shall: (a) send Reports only to Recipients authorized by the Monitored Person(s) to receive such Reports; and (b) solely be responsible for any act or omission of any person the Subscriber authorizes to receive Reports. Atlas5D may immediately terminate this Agreement if it knows or reasonably believes that the Atlas5D Solution is used by Subscriber or any third party to send Reports or other communications to or relating to any individual that has not given prior consent.

3.2. Lawful Conduct of Subscriber. Subscriber shall at all times comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Atlas5D Solution. Subscriber shall not send or transmit any Reports or communication from or in connection with the Atlas5D Solution that is unlawful, harassing, libelous, defamatory or threatening.

3.3. Minimum Performance Requirements. Subscriber acknowledges and agrees that: (i) use of the Atlas5D Solution is dependent, among other things, upon, and Subscriber shall solely be responsible for: (a) the camera embedded in the Atlas5D Device having an unobstructed field of vision; (b) an uninterrupted power supply and an uninterrupted internet connection to the Atlas5D Device, including and all computer, connectivity and software reasonably necessary therefore; (c) access by Recipients to the email account or SMS messaging service authorized by Subscriber, using either a computer or cell phone meeting the specifications described in the Documentation, and all connectivity and software reasonably necessary therefor; and (d) the Monitored Person being positioned within the field of vision (collectively, the “Minimum Performance Requirements”); and (ii) the Atlas5D Solution will not perform according to the Documentation unless the Minimum Performance Requirements are fully satisfied. Subscriber shall solely be responsible for complying with the Minimum Performance Requirements and meeting the Minimum Performance Requirements during any use of the Atlas5D Solution. Atlas5D has no liability for Subscriber’s compliance with the Minimum Performance Requirements.

3.4. Right to Research Data. Subscriber grants, on behalf of Subscriber, Recipients and Monitored Persons, to Atlas5D the non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up, transferable, sublicensable, worldwide right and license to collect and use, and otherwise fully exploit, as permitted under applicable laws, personal information of Subscriber, Recipients, and Monitored Persons, that is available in connection with or transmitted through use of the Atlas5D Solution to create aggregated data (“Research Data”) solely for Atlas5D’s internal business purposes of developing Atlas5D products and services, either alone or with Atlas5D service providers, affiliates, or business associates. Atlas5D agrees not to sell such Research Data without prior consent as may be required by applicable laws. As between Subscriber and Atlas5D, Atlas5D shall own all Research Data. Atlas5D’s collection and use of any personal information of Subscriber, Recipient(s), and Monitored Person(s) is subject to the Atlas5D Privacy Policy. Subscriber represents and warrants that it has the necessary rights to grant the license under this Section 3.4.

4. REGISTRATION; FEES; DELIVERY.

4.1. Registration. Subscriber is required to create an account with Atlas5D prior to using the Atlas5D Solution. Creating an account and registering with Atlas5D requires that Subscriber provide a full name, valid email and physical mailing address, and create a unique password. Atlas5D does not store Subscriber passwords, and it shall be Subscriber’s sole responsibility to maintain the security of the Subscriber account, including password. Subscriber shall solely be responsible for all activity on its account, and Atlas5D shall not be responsible for any loss or damages to Subscriber, Monitored Person(s), or any third party arising from Subscriber’s failure to maintain the confidentiality of or access to the account or password. By registering and creating an account, Subscriber confirms and agrees that the Subscriber is at least 18 years old.

4.2. Fees. Subscriber shall pay Atlas5D a one-time, non-refundable registration fee due upon registration. Thereafter, Subscriber shall pay the monthly service fee in accordance with the terms upon registration. All fees are exclusive of any taxes. All state, federal, or other taxes are the sole responsibility of Subscriber.

4.3. Payment Terms. All fees invoiced by Atlas5D are due 30 days from the invoice date and are non-refundable. Subscriber will either be: (i) invoiced monthly or at a frequency determined by the payment plan selected at registration; or (ii) in the case of credit card payment, automatically charged on the registration date and thereafter at a frequency determined by the payment plan selected at registration. Subscriber hereby authorizes any automatic charges for credit card purchases. Subscriber may terminate automatic charges at any time via its Atlas5D account.

4.4. Atlas5D Solution Delivery. Upon payment of the registration and monthly fee under Section 4.2, and acceptance of the terms of this Agreement, Atlas5D shall ship one (1) unit of the Atlas5D Solution F.O.B. origin to the designation indicated by Subscriber.

5. LIMITED WARRANTY; WARRANTY EXCLUSIONS.

5.1. Limited Warranty. Atlas5D warrants that, for a period of thirty (30) days after delivery to Subscriber (“Warranty Period”), the Atlas5D Device will function substantially as described in the Documentation in effect as of the date of delivery to Subscriber. In the event there is any material defect of the Atlas5D Device that prevents the Atlas5D Device from materially performing in accordance with the Documentation (a “Defect”) during the Warranty Period, Atlas5D’s sole liability shall be limited to either, at the sole discretion of Atlas5D, replacement or repair of the defective Atlas5D Device. Subscriber is solely responsible for returning the defective Atlas5D Device to Atlas5D, including paying all associated costs and expenses incurred in shipping the Atlas5D Device, together with a detailed written description of the Defect, to the address stated in Section 9.1. Upon confirmation by Atlas5D of a Defect under this Section 5.1, Atlas5D will reimburse Subscriber for the actual shipping costs incurred by Subscriber in returning the Atlas5D Device. THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY ATLAS5D REGARDING THE ATLAS5D SOLUTION AND ATLAS5D DEVICE, AND IS IN LIEU OF ANY PRIOR STATEMENTS, DISCUSSIONS, EMAILS, OR OTHER COMMENTS WHETHER WRITTEN OR ORAL, REGARDING THE ATLAS5D SOLUTION AND ATLAS5D DEVICE.

5.2. Warranty Exclusions. Excluded from this warranty is any Defect caused by: (i) any equipment of Subscriber, a Recipient, a Monitored Person, or any third party; or (ii) any mishandling or misuse of the Atlas5D Device by Subscriber, a Recipient, a Monitored Person, or any third party under the control of Subscriber, a Recipient, or a Monitored Person, including without limitation: (a) falling; (b) physical impacts; (c) use of the Atlas5D Device outside its operating limits indicated in the specifications; or (d) improper care (an “Excluded Defect”.) Atlas5D may, in its sole discretion, agree to repair any such Excluded Defect on a chargeable basis, at Atlas5D then-current rates.

5.3. Warranty Requirements. Subscriber shall not benefit from any warranty granted herein if Subscriber, a Recipient, a Monitored Person, or any third party: (i) modifies the Atlas5D Device; (ii) fails to comply with the Atlas5D Device Specifications; (iii) uses the Atlas5D Device in any manner other than the licensed use of the Atlas5D Solution or in violation of any state, federal or international law or regulation; or (iv) violates any provision under this Agreement.

6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; REMEDIES.

6.1. Disclaimer of Warranties. EXCEPT AS PROVIDED UNDER SECTION 5, THE ATLAS5D SOLUTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ATLAS5D DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THE ATLAS5D SOLUTION, ATLAS5D DEVICE AND OTHER SERVICES AND MATERIALS THAT MAY BE PROVIDED PURSUANT TO THIS AGREEMENT MAY FAIL TO FUNCTION PROPERLY, AND ATLAS5D DOES NOT WARRANT THAT ANY PRODUCTS, SERVICES, PROPRIETARY TECHNOLOGY OR HARDWARE ARE ERROR-FREE OR THAT THE OPERATION OF THE ATLAS5D SOLUTION OR ANY SERVICES WILL BE SECURE OR UNINTERRUPTED.

NEITHER ATLAS5D NOR ANY OF ITS SUPPLIERS, LICENSORS, OR AFFILIATES REPRESENT OR WARRANT THAT THE ATLAS5D SOLUTION, ATLAS5D DEVICE OR ANY OTHER SERVICES AND MATERIALS THAT MAY BE PROVIDED PURSUANT TO THIS AGREMENT WILL PREVENT DEATH, BODILY OR ANY OTHER INJURY OR DAMAGE TO MONITORED PERSONS, SUBSCRIBER, RECIPIENTS OR OTHERS. ATLAS5D EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT USE OF THE ATLAS5D SOLUTION DOES OR WILL COMPLY WITH ANY STATUTORY OR REGULATORY OBLIGATIONS INCLUDING, WITHOUT LIMITATION, HIPAA, HITECH AND RELATED LAWS AND REGULATIONS.

EXCEPT AS STATED IN SECTION 5, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ATLAS5D MAKES, AND SUBSCRIBER, RECIPIENT(S) AND MONITORED PERSON(S) RECEIVES FROM ATLAS5D, NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW OR STATUTORY) WITH RESPECT TO ANY ATLAS5D SOLUTION, ATLAS5D DEVICE OR ANY SERVICES AND MATERIALS THAT MAY BE PROVIDED PURSUANT TO THIS AGREEMENT. ATLAS5D EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. OTHER THAN AS STATED IN SECTION 5 ATLAS5D MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY HARDWARE, SOFTWARE, PRODUCT, INTERNET OR OTHER CONNECTIVITY SERVICE, INCLUDING WITHOUT LIMITATION THE ATLAS5D DEVICE. SUBSCRIBER IS SOLEY RESPONSIBLE FOR DETERMINING WHETHER THE ATLAS5D SOLUTION OR REPORTS GENERATED BY THE ATLAS5D SOLUTION ARE ACCURATE OR SUFFICIENT FOR SUBSCRIBER’S, RECIPIENT(S) OR MONITORED PERSON(S) PURPOSE.

6.2. Limitation of Liability. IN NO EVENT SHALL ATLAS5D OR ITS SUPPLIERS, LICENSORS, OR AFFILIATES BE LIABLE TO SUBSCRIBER, RECIPIENT(S), OR MONITORED PERSON(S) FOR DIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS OR REVENUE, EXEMPLARY, SPECIAL, COVER, RELIANCE, PUNITIVE, OR INDIRECT DAMAGES OF ANY TYPE, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE FURNISHING, PERFORMANCE OR USE OF THE ATLAS5D SOLUTION OR REPORTS PROVIDED PURSUANT TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL ATLAS5D’S OR ITS SUPPLIERS’, LICENSORS’, OR AFFILIATES’ CUMULATIVE LIABILITY FOR ALL CLAIMS OR LEGAL CAUSE OF ACTION ARISING FROM OR RELATING TO THE ATLAS5D SOLUTION OR THIS AGREEMENT, OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE ATLAS5D SOLUTION OR REPORTS, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, INDEMNITY, STRICT LIABILITY, STATUTORY DUTY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE DUE CARE, CLAIMS FOR PERSONAL INJURY, DEATH, OR OTHER TORTS, AND REGARDLESS OF THE NATURE OF THE CLAIM, AND TO THE MAXIMUM AMOUNT PERMITTED BY APPLICABLE LAW, EXCEED THE AMOUNT PAID BY SUBSCRIBER TO ATLAS5D PURSUANT TO THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. Some states do not allow the exclusion or limitation of incidental or consequential damages, or limitations on an implied warranty, such that the above limitations may not apply to you in certain instances, and you may have other legal rights which vary from state to state.

6.3. Atlas5D Disclaimer of Liabilities. ATLAS5D WILL NOT ACT ON ANY INCIDENT, AND THE ATLAS5D SOLUTION ONLY SENDS REPORTS TO PERSONS AUTHORIZED BY THE SUBSCRIBER TO RECEIVE SUCH REPORTS. ATLAS5D IS NOT RESPONSIBLE FOR THE TRANSMISSION OF ANY REPORT OR OTHER DATA ASSOCIATED WITH MONITORED PERSON(S), SUBSCRIBER, OR RECIPIENT(S). SUBSCRIBER ACKNOWLEDGES AND AGREES THAT, BECAUSE THE SUBSCRIBER OR MONITORED PERSON(S) DATA IS BEING TRANSMITTED OVER THE INTERNET, THE DATA MAY BE ACCESSED BY UNAUTHORIZED PERSONS WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK COMMUNICATIONS, FACILITIES, PHONE OR OTHER ELECTRONIC MEANS. ATLAS5D IS NOT RESPONSIBLE FOR ANY SUCH ELECTRONIC COMMUNICATIONS THAT ARE LOST, DESTROYED, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION OF ANY REPORT OR OTHER DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ATLAS5D IS NOT RESPONSIBLE OR LIABLE, EITHER DIRECTLY OR INDIRECTLY, FOR ANY INJURIES OR DAMAGES SUSTAINED FROM ANY ACTIVITIES, USE OF, OR INABILITY TO USE THE ATLAS5D SOLUTION, EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION, INACTION OR NEGLIGENCE OF ATLAS5D OR OTHERS.

SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE ATLAS5D SOLUTION IS NOT A MEDICAL DEVICE AND REPORTS DO NOT CONSTITUTE MEDICAL ADVICE, OPINIONS, OR REPRESENTATIONS OF ATLAS5D, AND REPORTS ARE NOT INTENDED TO BE USED FOR MEDICAL PURPOSES OR TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE, AILMENT, OR INJURY.

6.4. No Representations. Atlas5D makes no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Report(s) made by the Atlas5D Solution. Subscriber, Recipient(s), and Monitored Person(s) should not rely on any Report without independent verification by a licensed medical professional. Atlas5D has no association with or relation to any doctor or other medical professional. The Recipient(s) and Monitored Person(s) rely on Report(s) at their own risk and, to the full extent permitted under applicable law, under no circumstances will Atlas5D be responsible for any loss or damage resulting from the Recipient(s) or Monitored Person(s) reliance on information or advice provided by any third party in connection with any Report. Any activities that the Recipient(s) or Monitored Person(s) undertakes while using the Atlas5D Solution is at the Recipient(s) and Monitored Person(s) own risk and if a Recipient or Monitored Person chooses to participate in any actions associated with the Atlas5D Solution or any Report, they do so of their own free will and accord, knowingly and voluntarily assuming all risks associated with such activities.

6.5. Full Understanding of Limitations. SUBSCRIBER ACKNOWLEDGES THAT THERE ARE ALTERNATIVES TO THE ATLAS5D SOLUTION, AND SUBSCRIBER HAS SELECTED THE ATLAS5D SOLUTION WITH A FULL UNDERSTANDING OF ITS LIMITATIONS. FEES FOR THE ATLAS5D SOLUTION ARE BASED IN PART ON ATLAS5D’S LIMITED LIABILITY UNDER THIS AGREEMENT. IF ATLAS5D WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED BY SUBSCRIBER PURSUANT TO THIS AGREEMENT, ATLAS5D WOULD NOT PROVIDE THE ATLAS5D SOLUTION. Subscriber hereby waives any defenses that Subscriber may have as to why Subscriber should not be liable for the actions or omissions of any Subscriber agent or affiliate, Recipient, or Monitored Person with respect to this Agreement.

6.6. Equitable Remedies. Subscriber expressly agrees that a breach or threatened breach of this Agreement by Subscriber, a Recipient or a Monitored Person is highly likely to cause significant, irreparable harm to Atlas5D and that Atlas5D shall be entitled, in that case, to temporary, preliminary and/or injunctive relief, or any other equitable remedy deemed appropriate by the reviewing court, without necessity of proving actual damages or posting a bond, restraining Subscriber, Recipient, or Monitored Person from committing such breach or threatened breach and obligating Subscriber to take appropriate actions with respect to Recipients and Monitored Persons consistent with such remedies.

7. INDEMNIFICATION.

7.1. Indemnification. Subscriber shall defend, indemnify and hold harmless Atlas5D, its officers, directors, employees, and affiliates from all damages, claims, demands, actions, losses, expenses and other liabilities (including reasonable attorneys’ fees) that arise out of, or in connection with, any claim or action brought by a Recipient, a Monitored Person, or any third party arising out of Subscriber’s: (i) use of the Atlas5D Solution, including any Report; (ii) breach or violation of any provision of this Agreement, including without limitation, failure to obtain legal consent of a Monitored Person under Section 3.1; (iii) breach of any representation made by Subscriber in this Agreement; (iv) violation of the Atlas5D Privacy Policy; (v) violation of any applicable local, state, federal, or international laws or regulations; or (vi) violation of any Recipient, Monitored Person, or third party rights.

8. TERM AND TERMINATION.

8.1. Term. This Agreement shall commence on the Effective Date hereof and terminate on the earlier of: (i) written notice by Subscriber to Atlas5D; (ii) material breach of this Agreement by Subscriber, a Recipient or a Monitored Person that is not cured within thirty (30) days following notice to Subscriber by Atlas5D; or (iii) termination under Section 8.2 or 8.3.

8.2. Termination for Non-Payment. Atlas5D may terminate this Agreement or suspend Subscriber’s rights to use the Atlas5D Solution without further notice in the event that any payments or fees under Section 4.2 are over ten (10) days past due.

8.3. Termination without Notice. Atlas5D may immediately terminate this Agreement without notice in the event Subscriber, a Recipient, or a Monitored Person breaches the provisions of Sections 2.1, 2.2, 3.1 or 3.2.

8.4. Effect of Termination. Immediately upon termination of this Agreement Subscriber shall cease all use of the Atlas5D Solution. Sections 1, 2.2, 2.3, 2.4, 3.4, 6, 7, 8.4, and 9 shall survive termination or expiration of this Agreement.

9. GENERAL PROVISIONS.

9.1. Notice. Atlas5D may send notices hereunder to Subscriber by means of email or other electronic notification to Subscriber in a manner consistent with the information provided by Subscriber to Atlas5D upon registration. All notices to Atlas5D and any return of the Atlas5D Device under Section 5.1, shall be sent to:
Atlas5D, Inc.
Two Lewis Street
Lincoln, MA, 01773

9.2. Entire Agreement; No Third Party Beneficiary. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements regarding such matters. Nothing in this Agreement is intended to, or shall be construed to, give any third party, (including without limitation any Recipient and Monitored Person) any interest or rights (including, without limitation, any third party beneficiary rights) with respect to, or in connection with, any agreement or provision contained in, or contemplated by, this Agreement.

9.3. Government Matters. If Subscriber is an agency of the United States Government, or if the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, Subscriber agrees that the Atlas5D Solution is provided with restricted rights. Use, duplication and disclosure by the United States Government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at 48 CFR 52.227-19, as applicable, or in successor provisions, as well as the limitations set forth herein. Manufacturer is Atlas5D, Inc.

9.4. Assignment. Subscriber may not assign its rights hereunder without the prior written consent of Atlas5D. Atlas5D may assign its rights and obligations under the Agreement, in whole or in part, without consent of Subscriber (or any Recipient or Monitored Person). Any attempted assignment not in accordance with this Section 9.4 shall be null and void. Upon completion of any assignment under this Section, the assigning party shall have no further liability with respect to any of the rights or obligations assigned.

9.5. Force Majeure. Neither party shall be liable to the other party or deemed to be in default for any delay or failure in performance of any obligation under the Agreement (excluding any payment obligations), or interruption of service resulting directly or indirectly from internet outages or connectivity problems or cell phone connectivity problems (except as such are caused by or a result of any actions or inactions by Subscriber, Recipient, or Monitored Person), acts of God, civil or military authority, acts of the public enemy, acts of terrorism, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, epidemics, pandemics, the elements or any other cause beyond the reasonable control of such party. The party claiming such force majeure event shall give timely written notice to the other party and shall use due diligence to mitigate the situation.

9.6. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of state of New York, without regard to its conflict of law provisions. Each party hereby irrevocably submits to the exclusive jurisdiction of any state or federal court sitting in Boston, Massachusetts, in any action or proceeding arising out of or relating to this Agreement, and agrees that all claims in respect of such action or proceeding may be heard and determined in any such court. Each party hereby waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of the other party with respect thereto.

9.7. No Waiver. No waiver by either party of any breach or default by the other party of any of its obligations under this Agreement shall be deemed to be a waiver of any other breach or default of the same or any other nature.

9.8. Severability. If any provision hereof shall be deemed by any court to be invalid, illegal or unenforceable, such provision will be enforced to the maximum extent permissible by law, and the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired.

9.9. Interpretation. The headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and shall not modify or limit any of the terms thereof.

Last Updated: November 23, 2020