ATLAS Live Terms
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“Terms and Conditions” or this “Agreement”) govern the production use of the web-based proprietary software SaaS Services and related SaaS Services (the “SaaS Services”) made available by CrossnoKaye, Inc. (“CrossnoKaye”), as identified in one or more quotations (each, a “Quote”) or Statements of Work (each, a “SOW”). By using or accessing the SaaS Services, you represent that you are authorized to and that you agree on behalf of your organization (the “Customer”) to be bound by these terms and conditions, unless your organization has entered into a separate, written agreement providing for such use.
CrossnoKaye will provide Customer’s Authorized Users (defined below) with access to the SaaS Services as provided in this Agreement and the applicable Quote or SOW during the subscription term identified in the Quote or SOW, or if no subscription term is identified, the SaaS Services will be made available on a year-to-year until terminated (the “Subscription Term”). Customer may designate and provide access to its (or its corporate affiliates’) employees, independent contractors, or other agents as authorized users (“Authorized User”). Each set of credentials may be used only by a single, individual Authorized User. Customer remains responsible for all use and misuse of the SaaS Services that occurs under Authorized Users’ login credentials and for any breach of these Terms and Conditions by any Authorized Users. Customer agrees to promptly notify CrossnoKaye of any unauthorized access or use of which Customer becomes aware.
CrossnoKaye hereby grants Customer a worldwide, non-exclusive, non-transferable right to access and use the SaaS Services, during the Subscription Term, for Customer’s internal business purposes, all subject to these terms and conditions.
Customer will not (and will use diligent efforts to ensure that its Authorized Users do not): (a) “frame,” distribute, resell, or permit access to the SaaS Services by any third party other than for its intended purposes; (b) permit multiple Authorized Users to access the SaaS Services using a single email address and password; (c) use the SaaS Services other than in compliance with applicable federal, state, and local laws; (d) sell, sublicense, rent, lease, distribute, market, or commercialize the SaaS Services for any purpose, including timesharing or service bureau purposes; (e) interfere with the Service or disrupt any other user’s access to the SaaS Services; (f) reverse engineer, attempt to gain unauthorized access to the SaaS Services, or attempt to discover the underlying source code or structure of the SaaS Services; (g) knowingly submit to the SaaS Services any content or data that is defamatory, harassing, discriminatory, infringing of third party intellectual property rights, or unlawful; (h) submit to the SaaS Services any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; (i) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the SaaS Services; (j) modify or create a derivative work of any encrypted or encoded portion of the SaaS Services, or any of their components; or (k) publicly disseminate performance information or analysis regarding the SaaS Services, including without limitation benchmark test results.
As between the parties, Customer retains all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that Customer or its Authorized Users uploads, submits to, or collects via the SaaS Services (collectively, “Customer Data”). Customer Data includes data and content collected by Customer and its Authorized Users from third parties via the SaaS Services. Customer represents and warrants that it has all rights, permissions and consents necessary (a) to collect, store and process all Customer Data, including all personal data, using the SaaS Services, (b) to grant CrossnoKaye the limited license to use Customer Data set forth in this Agreement, and (c) for any transfer or disclosure of Customer Data among Authorized Users or as otherwise authorized by Customer. If an individual whose personally identifiable information is hosted by CrossnoKaye in connection with the SaaS Services requests access to their personal information, Customer is responsible for providing reasonable access to, modification of, or deletion of their data and in addition, handling any claims, disputes or proceedings. CrossnoKaye is willing to assist with any of the above at either Customer’s or the individual¹s request and CrossnoKaye will provide resources at its standard billing rates.
Customer agrees that CrossnoKaye may use the Customer Data to make the SaaS Services and their features available to Customer, including without limitation by making Customer Data available for viewing, download and modification by Authorized Users. CrossnoKaye will have no liability for any collection, distribution, publication, display, use or disclosure of Customer Data by Customer and its Authorized Users via the SaaS Services. Customer agrees that CrossnoKaye can use subcontractors (and sub-processors), including resources located outside of the United States, in providing SaaS Services. CrossnoKaye may allow its service providers to host and access Customer Data in order to assist CrossnoKaye in providing the SaaS Services, provided that (a) such service providers are subject to industry standard confidentiality obligations and (b) CrossnoKaye will be responsible for any breach of this Agreement by such service provider acting on its behalf. CrossnoKaye will maintain commercially reasonable administrative, technical and procedural safeguards designed to safeguard the Customer Data from unauthorized access, disclosure or loss. Customer hereby grants CrossnoKaye the right to use all Customer Data as necessary to provide its SaaS Services. Customer grants CrossnoKaye the perpetual, royalty-free, worldwide right to use the Customer Data for product and service improvement, analysis, benchmarking, development of new products and SaaS Services, and similar purposes. Additionally, Customer acknowledges that CrossnoKaye may monitor Customer’s use of the SaaS Services and collect and compile aggregated and non-identifying data and information related to such use, such as (by way of example and not limitation), information concerning logistics, performance of equipment, site performance, downtime, software bugs, and safety information (“Aggregated Statistics”).
As between the parties, CrossnoKaye retains all right, title and interest, including any intellectual property and proprietary rights, in and to (a) the SaaS Services and the technology and software used to provide them; (b) all electronic and print documentation and other content and data (excluding Customer Data) made available through the SaaS Services; and (c) Aggregated Statistics. Except for Customer’s rights to access and use the SaaS Services as provided in these Terms and Conditions, nothing in this Agreement licenses or conveys any of CrossnoKaye’s intellectual property or proprietary rights to anyone, including Customer. Customer grants CrossnoKaye a perpetual right to use and incorporate into the SaaS Services (or other or new SaaS Services) any feedback or suggestions for enhancement that Customer or an Authorized User provides to CrossnoKaye concerning the SaaS Services, without any obligation of compensation.
Provided that Customer has provided advance notice to CrossnoKaye of equipment or process changes that will impact the use of the Services, including when the ATLAS Local Agent (defined below) is no longer being used or in control of Customer’s equipment, CrossnoKaye warrants to Customer that: (a) the installed gateway server (the “ATLAS Local Agent”) and the SaaS Services will operate in accordance with CrossnoKaye’s documentation for the duration of any Subscription Term, (b) hardware provided by CrossnoKaye will operate in accordance with CrossnoKaye’s documentation for a period of 90 calendar days from initial delivery to Customer, and (c) CrossnoKaye will use commercially reasonable efforts to make the SaaS Services available to Customer 24 hours per day, 7 days per week, excluding planned downtime and downtime caused by Force Majeure Events. “Force Majeure Events” means circumstances beyond CrossnoKaye’s reasonable control, including without limitation natural disasters, civil unrest, acts of government or regulatory bodies, disruptions to the internet or other communications, disruptions to hosting facilities or equipment, denial of service attacks, transportation disruptions, inability to obtain labor or materials, infectious diseases, and labor strikes not involving CrossnoKaye’s personnel.
Customer’s sole and exclusive remedy for a breach of warranty will be for CrossnoKaye to use reasonable efforts to make the SaaS Services or ATLAS Local Agent, as applicable, conform to such documentation and, if CrossnoKaye is unable to do so, Customer’s sole and exclusive remedy shall be to recover the corresponding fees paid to CrossnoKaye for the non-conforming SaaS Services or ATLAS Local Agent, less a reasonable adjustment based on the period of use. Except for the above limited warranties, CrossnoKaye expressly disclaims all other warranties, express, implied, statutory or otherwise, including, without limitation, warranties of merchantability, fitness for a particular purpose and non-infringement. The limited warranty excludes any remedy for damage or defect caused by abuse, alterations to the hardware or software not made by CrossnoKaye or its representatives, improper or insufficient maintenance, improper operation or normal wear and tear under normal usage. Customer acknowledges that certain functionality of the SaaS Services is dependent on internet connectivity and such functionality will be unavailable during periods of disruption to the internet or Customer’s internet connectivity. These periods will not be considered downtime. The ATLAS Local Agent will maintain base functionality within the facility where it is installed during periods of internet disruption. Customer must notify CrossnoKaye in writing of any noncompliance with any warranty within 30 days of Customer’s discovery of the non-compliance to receive warranty remedies.
Customer acknowledges that, as an internet-delivered software application, the SaaS Services may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, CROSSNOKAYE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAAS SERVICES, DOCUMENTATION, OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE SAAS SERVICES, WHETHER EXPRESS OR IMPLIED. CROSSNOKAYE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. CROSSNOKAYE DOES NOT WARRANT THAT THE SAAS SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. To the maximum extent permitted by law, CrossnoKaye is not liable to Customer for any indirect, incidental, special, punitive, consequential or similar damages whether based on statute, contract, tort or other theory of liability. In any event, CrossnoKaye’s aggregate liability for all causes of action arising out of its obligations will not exceed the total fees paid to CrossnoKaye by Customer for the SaaS SaaS Services pursuant to the applicable Quote or SOW during the 12 months preceding the incident giving rise to the liability.
The SaaS Services throughout are subject to U.S. export laws as well as the laws of the country where they are delivered by CrossnoKaye. Customer agrees not to knowingly, directly or indirectly, export or transmit any of the Software to any country to which such transmission is restricted by applicable regulations or statutes, without the prior written consent, if required, of the Office of Export Administration of the U.S. Department of Commerce, Washington, D.C. 20230.
If any SaaS Services are acquired by or on behalf of a unit or agency of the United States Government, the government agrees that such Software is "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement with CrossnoKaye to the contrary, its rights with respect to such SaaS Services are, in the case of civilian agency use, Restricted Rights, as defined in FAR §52.227.19, and if for Department of Defense use, limited by the terms of this Agreement, pursuant to DFARS §227.7202.
Invoices are payable as set forth in the Quote or SOW. Prices quoted expire 60 calendar days from the date of the Quote or initial presentation of a draft SOW, unless withdrawn sooner or otherwise stipulated in writing. CrossnoKaye has the option to revise or extend quoted prices after 60 calendar days. Unless otherwise indicated in the Quote or SOW, all prices exclude applicable taxes and similar charges. Any taxes that must be paid by CrossnoKaye or for which CrossnoKaye is responsible for collecting shall be in addition to the amount quoted. Customer agrees to pay all taxes or to reimburse CrossnoKaye therefor upon receipt of its invoice. If Customer claims exemption from any taxes, Customer shall save CrossnoKaye harmless from and against any such taxes and any associated interest or penalties. CrossnoKaye retains title to any equipment until Customer has paid for it in full.
These Terms and Conditions are governed by and construed in accordance with the laws of the State of California and any dispute that the parties cannot resolve shall be resolved by binding arbitration administered by Judicial Arbitration and Mediation Service in Los Angeles County, California. The parties are independent contractors and nothing will be construed as creating a partnership or joint venture of any kind. These Terms and Conditions and the Quote or SOW, as applicable, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior written or oral quotes, understandings or agreements. If any provision of these Terms and Conditions or the Quote or SOW is found by an arbitrator or a court of competent jurisdiction to be illegal, void or unenforceable, such provision will be enforced to the maximum extent possible in order to carry out the intent of the parties and the enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby. CrossnoKaye may update these Terms and Conditions from time to time and will notify Customer of any updates via email, to the email address provided upon activation of the SaaS Services. Updates to these Terms and Conditions will apply as of the date of the notice.
CrossnoKaye may use Customer's name, logos, and taglines (“Customer Marks”) in its customer list (including on CrossnoKaye’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. CrossnoKaye shall use Customer Marks in accordance with Customer's applicable branding guidelines and CrossnoKaye may not use Customer's name or Customer Marks in any other way without Customer's prior written consent (with email consent deemed sufficient).
Last updated November 17, 2021