Atlas5D User Agreement

This Agreement (the “Agreement”) is entered into by and between Atlas5D, Inc. (“Atlas5D”) and you (the “User”) in respect of your use of the Atlas5D Solution, as described at www.atlas5d.com/userdocumentation (the “Atlas5D Solution”), and all user documentation and materials related thereto provided by Atlas5D (the “Documentation”).

In accepting the terms of this Agreement, you acknowledge and agree that Atlas5D is not a provider of insurance; and that use of the Atlas5D Solution is not a guaranty that the person intended to be monitored by the Atlas5D Solution will be the person with respect to whom information is transmitted by the Atlas5D Solution, nor that an incident with respect to such person will be received or acted upon in a timely manner by any person authorized to receive reports with respect to such person.

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 and presenting it to you again for review and acceptance.

1. License to Use of Atlas5D Solution

  1. User is authorized to install the Atlas5D Solution (a) on an Android or Windows tablet meeting the specifications set forth on www.atlas5d.com/userdocumentation (the “Technical Requirements”), to enable use of the Atlas5D Solution to generate the monitoring reports described on www.atlas5d.com/userdocumentation (the “Monitoring Reports”) with respect to each person within the field of vision of the camera embedded in such Tablet (each a “Monitored Person”), or (b) as applicable, on a computer meeting the specifications set forth in the Technical Requirements to enable use of the Atlas5D Solution by User as the person (each, a “Caregiver”) authorized to receive the Monitoring Reports with respect to each Monitored Person, using the authorization process described therein. To the extent required thereby, Atlas5D grants to User a limited, non-exclusive, nonsublicensable, and nontransferable, license to use the Atlas5D Solution in object code form (but not source code) in accordance with the applicable documentation made available at www.atlas5d.com/userdocumentation. Such license shall commence on the date hereof and continue in effect thereafter until the earlier of the expiration or termination of this Agreement.
  2. Effective use of the Atlas5D Solution is dependent, among other things, upon the camera embedded in the Tablet not having an obstructed field of vision and upon the Monitored Person being within such field of vision, and User agrees that such shall be the sole responsibility of the User and not Atlas5D. User shall cause the Tablet to be used for no purpose other than the use of the Atlas5D Solution and shall not download any other software or applications to the Tablet.
  3. To the extent User (and not the Monitored Person) authorizes a Caregiver to receive Monitoring Reports, User shall be solely responsible for ensuring each Monitored Person has consented thereto and hereby represents and warrants that each Monitored Person has so consented. User agrees to cause no more than five (5) persons to be designated as a Caregiver with respect to the Monitoring Reports generated for any single Monitored Person.

1.2 Conditions of Use; Responsibility of User

  1. User may not modify, disassemble, reverse compile or otherwise reverse engineer the Atlas5D Solution or Documentation, and may not copy, translate or make derivative works of the Atlas5D Solution or the Documentation.
  2. User agrees that Atlas5D shall have the right to gather anonymized non-personally identifiable data with respect to the User and the other persons, including Monitored Persons, with respect to whom data is transmitted through use of the Atlas5D Solution. User shall and hereby does grant to Atlas5D the perpetual, non-exclusive, fully paid-up, transferable and worldwide right and license to collect, aggregate and use such data in the development of products and services. User shall be responsible for obtaining the consent of each person with respect to whom data may be transmitted through use of the Atlas5D Solution as licensed hereunder.
  3. User acknowledges that, as described on www.atlas5d.com/userdocumentation, (i) the Tablet will not be effective without an uninterrupted power supply and an uninterrupted internet connection thereto and all computer, connectivity and software reasonably necessary therefore, and (ii) receipt of the Monitoring Reports by the Caregiver is dependent on access by Caregiver to the email account or SMS messaging service authorized by User, using either a computer or cell phone meeting the specifications described on www.atlas5d.com/userdocumentation, and all connectivity and software reasonably necessary therefore. User shall be solely responsible for the foregoing.
  4. User shall comply with all applicable United States and foreign laws, rules, and regulations related to User’s implementation, license, and/or use of the Atlas5D Solution and Documentation, including laws relating to privacy and monitoring.
  5. User will promptly inform Atlas5D of any changes to the information provided in this Agreement. All changes are the sole responsibility of User and shall become effective at the time of delivery to Atlas5D.

2. Invoicing and Payment

  1. Prior to any User being granted a license for use of the Atlas5D Solution in conjunction with a given Tablet and/or the Monitoring Reports generated thereby, one User (the “Paying User”) shall agree to be responsible for payment of the fees described on www.atlas5d.com/userdocumentation, along with any applicable sales tax due thereon, with respect to use of the Atlas5D Solution on the Tablet (the “Fees”). The Paying User shall be obligated to pay such Fees for a full month in respect of any partial month during the term hereof. Fees are subject to change upon thirty (30) days’ prior written notice to Paying User. Payment is due upon receipt of invoice.
  2. Past due balances (over thirty (30) days past due) will be subject to a monthly finance service charge equal to eighteen (18%) percent per annum, or the maximum allowable by law.

3. Remedies; Disclaimer of Implied Warranties

  1. The parties expressly agree that a breach or threatened breach of this Agreement by the other is highly likely to cause significant, irreparable harm to the non-breaching party and that the non-breaching party 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 posting a bond, restraining such party from committing such breach or threatened breach.
  2. USER ACKNOWLEDGES THAT NEITHER ATLAS5D, NOR ANY OF ITS SUPPLIERS, REPRESENT OR WARRANT THAT THE ATLAS5D SOLUTION OR ANY OTHER SERVICES OR MATERIALS THAT MAY BE PROVIDED HEREUNDER WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO USER OR OTHERS. THE ATLAS5D SOLUTION MAY FAIL TO FUNCTION PROPERLY. THE ATLAS5D ALERT SYSTEM OR ALARM SYSTEM MAY FAIL TO FUNCTION PROPERLY. ATLAS5D MAKES AND USER RECEIVES FROM ATLAS5D NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO ANY ATLAS5D SOLUTION OR ANY OTHER SERVICES OR MATERIALS THAT MAY BE PROVIDED HEREUNDER. ATLAS5D SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ATLAS5D MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE OR DATABASE.
  3. IN NO EVENT SHALL ATLAS5D OR ITS AFFILIATES BE LIABLE TO USER FOR DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE FURNISHING, PERFORMANCE, OR USE OF THE ATLAS5D SOLUTION PROVIDED PURSUANT TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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, and you may have other legal rights which vary from state to state.
  4. USER UNDERSTANDS THAT THERE ARE ALTERNATIVES TO THE ATLAS5D SOLUTION, AND USER HAS SELECTED THE ATLAS5D SOLUTION WITH A FULL UNDERSTANDING OF ITS LIMITATIONS. ATLAS5D’S CHARGES FOR ITS PRODUCTS AND SERVICES ARE BASED IN PART ON ATLAS5D’S LIMITED LIABILITY UNDER THIS AGREEMENT. IF ATLAS5D WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED BY USER PURSUANT TO THIS AGREEMENT, ATLAS5D WOULD NOT PROVIDE THE ATLAS5D SOLUTION.

4. Term and Termination

  1. Term. This Agreement shall commence on the date hereof and terminate on either material breach by the other party of this Agreement or thirty (30) days’ prior notice. Subject to the foregoing, this Agreement may be terminated by either party for any reason or no reason; provided, that upon termination of this Agreement, User shall pay Atlas5D all amounts due but unpaid as of the date of termination pursuant to this Agreement.
  2. Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 1.2 (Conditions of Use by User), 2 (Invoicing and Payment), 3 (Remedies; Disclaimer of Implied Warranties), 4 (Term and Termination) and 5 (General Provisions).

5. General Provisions

  1. Entire Agreement. 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.
  2. Government Matters. In the event that User is an agency of the United States Government, or that the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, User agrees that the Atlas5D Solution is provided with restricted rights. Use, duplication, or disclosure by the 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.
  3. Amendments. This Agreement may not be waived or amended, in whole or in part, except by an instrument in writing signed by both parties.
  4. Assignment. User 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, to a parent or affiliate or in the event of a merger or sale of a business unit or majority stock ownership, and such assignment will be effective without the consent of User, provided that the party assuming obligations agrees to do so in writing and has adequate resources to meet its obligations hereunder. Any attempted assignment not in accordance with this Section 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.
  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 or interruption of service resulting directly or indirectly from internet outages or connectivity problems, cell phone connectivity problems, 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, 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.
  6. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts, without regard to its conflict of law provisions. Each party hereby irrevocably submits to the 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.
  7. In the event of any litigation between the parties concerning performance or non-performance of either party’s obligations under this Agreement, the prevailing party shall be entitled to be reimbursed by the other party for the costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred or paid by the prevailing party in such litigation.
  8. 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. 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.
  10. 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.
  11. Atlas5D may send notices hereunder to User by means of email or other electronic notification to User in a manner consistent with the information provided by User to Atlas5D. User may send notices hereunder to Atlas5D by means of electronic communication in the manner set forth in www.atlas5D.com/userdocumentation.