These are the Terms of Service for the Atavist software platform (formerly “Creatavist”), published March 23, 2015. (To see the previous Terms of Service, go here.)
We realize that online terms of service are often long and rarely read. Unfortunately ours have to be long as well, and we do strongly encourage you to read them in full. But here are a few of our basic principles up top, based on common questions we receive:
Everything you make in Atavist belongs to you. You own it. We won’t resell your content somewhere else. It’s yours, it’s just made with the tool we created (that’s the part we own, the tool and associated software). You control your own copyright.
You can take your content out. We’ve created ways for you to take your content out of our system. If anything should ever happen to us, or if you decide to leave, you can take what you’ve made with you. (Obviously there are some output formats that are unique to our system and you’d have to work to reproduce, but we try to make it possible for you to pull your content back out.)
We don’t sell your data. Any information we collect from you is used to improve the service, not to be shared with or sold to other organizations for commercial purposes without your explicit permission.
We do again strongly recommend that you read the entire terms. Two helpful guideposts:
“Atavist” is the name of our company and also the name of our publishing software.
Some terms below vary based on whether you are using Atavist under a paid plan or not.
And with that, here are the “longform” terms of service, so to speak, with all of the details behind those principals and a lot more.
TERMS OF SERVICE
By using Atavist (the “Service”) and/or other Atavist services, you accept the following Terms of Service, which constitute the contract between you and Atavist, collectively referred to as our “Terms of Service.” You need not accept this requirement to agree to our Terms of Service, but if you reject our Terms of Service you should not, and are not permitted to, use our Service. If you do access our web site and use our Service, your use constitutes acceptance of our Terms of Service and you shall be a party to a legally binding contract with Atavist Inc. (“Atavist,” “we,” and sometimes “us”). You may also be required or elect to enter into a separate written agreement or click “accept” or “agree” to become a party to another contract with Atavist (a “Separate Agreement”), and these Terms of Service shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and these Terms of Service, then the terms of the Separate Agreement shall take precedence over the contradictory terms in the Terms of Service with respect to the subject matter of such Separate Agreement, unless otherwise noted.
Atavist reserves the right to modify this Agreement by (1) posting a revised Agreement on and/or through the Service and (2) providing notice to you that this Agreement has changed, generally via email where practicable, and otherwise through the Service (such as through a notification from within the Atavist dashboard). Modifications will not apply retroactively. You are responsible for reviewing and becoming familiar with any modifications to this Agreement.
We may sometimes ask you to review and to explicitly agree to (or reject) a revised version of this Agreement. In such cases, modifications will be effective at the time of your agreement to the modified version of this Agreement. If you do not agree at that time, you are not permitted to use the Services.
In cases where we do not ask for your explicit agreement to a modified version of this Agreement, but otherwise provide notice as set forth above, the modified version of this Agreement will become effective fourteen days after we have posted the modified Agreement and provided you notification of the modifications. Your use of the Services following that period constitutes your acceptance of the terms and conditions of this Agreement as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.
Note that, if you have prepaid for any paid aspect of the Service prior to a modification of this Agreement, your use of such prepaid Service is governed by the version of this Agreement in effect at the time Atavist received your prepayment.
1. ATAVIST IS A TOOL AND MARKETPLACE
The Atavist Service (including the services formerly known as “Atavist Create” and “Creatavist”) is a tool for publishing and selling stories, ebooks, publications, and applications (“apps”) across a variety of digital environments. It consists of computer programs, services, apps, and web sites hosted or made available by Atavist, which you may use for creating, organizing, designing, storing, enhancing, publishing, and selling any number of digital stories, consisting of text and other media and displayed across multiple computer and network platforms, now known or hereafter developed (collectively, the “Service”).
2. USE OF THE SERVICE
Subject to the terms and conditions within these Terms of Service, Atavist grants you a limited, non-exclusive license to utilize the Service so long as (a) you are not under the age of thirteen (13). No individual under the age of thirteen may use the Service or provide any information to Atavist or otherwise through the Service (including, for example, a name, address, telephone number, or email address).
You otherwise may only use the Service (b) if you can form a binding contract with Atavist and (c) you are not barred from receiving the Service under the laws of the United States. In order to access and/or use the Service, you may be required to provide current and accurate contact and other information as part of the registration process and/or continued use of the Service, and you will be responsible for maintaining the accuracy and completeness of such information.
You may also be provided with an account, username, password and/or email address to access or use the Service, or to enable another to access, use and modify your stories (the “Account Information”). You are responsible for maintaining the confidentiality of your Account Information and, accordingly, will be fully responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. You agree to immediately notify Atavist of any unauthorized use of your Account Information, account or any other breach of security. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
3. USER CONTENT AND CONDUCT
3.1 Your Content is Your Responsibility
You acknowledge and agree that all information, data, text, images, software, sounds, graphics, video, messages, tags and other materials, in whatever form and technical structure, whether publicly posted or privately transmitted or stored using the Service (“Content”), are the sole responsibility of the person(s) originating such Content and introducing such Content into the Service. We reserve the right, but shall have no obligation, to pre-screen, reject, review, quarantine, delete or move any Content available with the Service, without obligation to any person.
You agree that you are responsible for your own conduct and all conduct under your account, and all Content that is created, transmitted, stored or displayed by anyone using your Account Information with the Service and for any consequences arising as a result thereof. You agree to use the Service only for purposes that are legal, proper, and in accordance with these Terms of Service and any Separate Agreements, and all applicable laws and regulations in the relevant legal jurisdictions (including, without limitation, laws and regulations relating to intellectual property, privacy, and the storage and transmission of data and technology).
3.2 Representations and Warranties
Without limiting the foregoing, you represent and warrant that you have the unfettered legal rights and authority to permit you to submit your Content to Atavist in connection with your use of the Service, and such submission—and the grant to Atavist of the rights you grant herein in connection with Atavist’s offering and operation of the Service—does not infringe the rights of any person or third party.
3.3 Respecting Intellectual Property and Privacy Rights
Please ensure that you are mindful of the legal rights of others in copyrightable works, trademarks, service marks, and their individual privacy, and do not reproduce or upload or publish Content that will violate their rights or subject you to legal liability. Atavist cannot and will not provide you legal or other advice on these issues, but will act in accordance with applicable law and in the best interests of Atavist and, in its discretion, the interests of those who use the Service. There are many legal reference sites available to you on the Internet, and we encourage you to obtain advice from a lawyer familiar with such issues if you are unsure of your rights to upload, distribute, or publish any Content. You can find Atavist’s full and complete copyright policy here.
3.4 Suggestions for Service Features and Alterations
By submitting to Atavist any ideas, suggestions, documents and/or proposals related to alterations or improvements to the Service, through the “Contact Us” interface or otherwise (collectively, “Contributions”), you acknowledge and agree that, unless you sign a superseding agreement with Atavist to the contrary: (a) your Contributions do not contain confidential or proprietary information; (b) Atavist is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Atavist shall be entitled to use or implement such Contributions for any purpose; (d) Atavist may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Atavist without any obligation of Atavist to you; and (f) you are not entitled to any accounting, compensation or reimbursement of any kind for those submissions from Atavist under any circumstances.
3.5 User Conduct
The following Terms apply to users of the Service who are publishing to the Atavist web environments (atavist.com, atavist.com subdomains, or a domain alias) and Atavist apps (collectively, “Atavist Environments,”).
You further agree to NOT:
(a) use our products or the Service for illegal or unauthorized purposes or for promotion of dangerous activities, or to harass, threaten, impersonate, or intimidate anyone;
(b) upload, post, transmit, or otherwise make available any content that is unlawful, threatening, abusive, harassing, defamatory, invasive, pornographic, hateful, or racially or ethnically objectionable in language or images;
(c) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “affiliate links,” or any other form of solicitation;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (including, but not limited to, inside information, or proprietary and confidential information learned or disclosed as part of an employment relationship or under a nondisclosure agreement);
(f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or designed to interfere with or disrupt the Service or servers connected to the Service;
(h) violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(i) “stalk” or otherwise harass another person or company, or take any action invasive to another’s privacy (by posting, for example, another’s photograph, address, email, phone number or any other contact information) without permission from such other person;
(j) exceed the scope of the Service that you have signed up for by, for example, accessing and using features that you do not have a right to use (including, but not limited to, incorporating 3rd party advertising, or altering the hosting of your Web or app-based content to locations outside of Atavist-controlled servers), or deleting, adding to or otherwise changing another person’s entries or other content when you have not been granted the right to do so;
(k) access (or attempt to access) any of the Service by any means other than through the interface that is provided by Atavist (unless you have been specifically allowed to do so in a Separate Agreement), or access (or attempt to access) any of the Service through any automated means not provided and approved by Atavist (including use of scripts, web crawlers or the like) or otherwise engage the Service in a manner reasonably likely to be harmful to the systems operating the Service or the access or use of the Service by others;
(l) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Service (unless you have been specifically allowed to do so in a Separate Agreement); or
(m) falsely suggest through your use of the service any sponsorship or endorsement of your content by Atavist.
If you encounter any of these prohibited uses, you may email Atavist at [email protected] to submit the appropriate information to Atavist.
You understand that, notwithstanding our efforts and these Terms of Service, you may be exposed to offensive, indecent, or objectionable Content when using the Service, and, accordingly, you use the Service at your own risk. There are commercially available services and software to limit access to material that you may find objectionable. We may, but shall have no obligation, to provide such services and software, or enable such services or software to work with the Service.
The information we collect is used to improve the content of our web pages and the quality of our service, and is not shared with or sold to other organizations for commercial purposes, except when we have your explicit permission, and to provide products or services you’ve requested.
5. PROPRIETARY RIGHTS, LICENSES AND LIMITATIONS
5.1 Atavist Intellectual Property
You acknowledge and agree that Atavist (and any licensors to Atavist) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on Atavist’s servers (the “Software”), and all intellectual property rights therein (whether registered or not and wherever existing in the world). You further acknowledge and agree that the rights in the Service, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms of Service and any Separate Agreement. Except for the limited license rights specifically granted to you in these Terms of Service (and any rights expressly granted to you in a Separate Agreement), Atavist and its suppliers own and shall retain all rights, title and interests, including, without limitation, intellectual property rights, in and to the Service and all Software utilized therein (and all copies thereof and related materials that are delivered or made available to you with the Service).
5.2 Intellectual Property Pertaining to Custom-Built User Templates
If you build templates for the Atavist service, using the Atavist Development Kit or any other authorized plug-in system provided by Atavist, you retain the rights to the code you have created. Atavist retains the rights to any code in the platform which interacts with template code, as well as the right to build or reproduce any templates separate from your code. Creating and installing templates in Atavist does not entitle you to any ownership of the platform code, the general concepts behind any given template, any given template’s look and feel, or the service itself.
5.3 Your Copyright
You retain copyright and any other rights you already hold in Content which you submit, post or display on or through the Service. Other than the limited license and other rights you grant in these Terms of Service, Atavist acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content that you submit, post, store, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that you are solely responsible for protecting and enforcing those rights and that Atavist has no obligation to do so on your behalf.
5.4 Limited License to Atavist
In order to enable Atavist to operate the Service, we must obtain from you certain license and other rights to the Content you submit (so that our processing, maintenance, storage, technical reproduction, back-up and distribution, and related handling of your Content doesn’t infringe applicable copyright and other laws). Accordingly, by using the Service and posting Content, you grant Atavist a license to display, perform and distribute your Content, and to modify (for technical purposes) and reproduce such Content to enable Atavist to operate the Service. You agree that these rights and licenses are royalty free, irrevocable and worldwide, and include a right for Atavist to make such Content available to, and pass these rights along to, others with whom Atavist has contractual relationships related to the provision of the Atavist Service (such as online databases and web hosting companies), solely for the purpose of providing such services.
Except for the limited license and other rights granted in these Terms of Service, you retain all of the rights you had in your Content before you submitted it; unless you elect to enable others to view or have access to the Content you submit to the Service, no one else shall be permitted to view your Content without your consent. However, Atavist retains the right to permit access to your Content to third parties if Atavist determines such access is necessary to comply with its legal obligations.
6. SERVICE COMPONENTS
We reserve the right at any time and at our sole discretion to modify or discontinue, temporarily or permanently, the Service or any part thereof (including Software), with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any part of the Service. In connection with any modification of the Service, Atavist may automatically install software updates from time to time with the intention of improving, enhancing, repairing and/or further developing the Service, and you agree to permit Atavist to deliver these to you (and you to receive them) as part of your use of the Service.
6.2 Third Party Components
You acknowledge that in using the Service to publish content, you will be causing communications to be sent through computer networks owned by Atavist and third parties that are located in New York, California, and other locations in the United States and other countries and that, as a result, your use of the Service will likely result in interstate data transmissions. You understand that Atavist, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
Atavist may from time to time include as part of the Service computer software supplied by third parties, including (but not limited to) Third Party Software and open source software, which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Atavist expressly disclaims any warranty or other assurance to you regarding such third party software.
We may include the use of third party resources and/or links to third party web sites as part of the Service. We have no control over such sites and resources and, accordingly, you acknowledge and agree that (a) we are not responsible for the availability of such external sites or resources; (b) we do not endorse and are not responsible or liable for any content or other materials available from such sites or resources; and (c) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content or materials available on or through any such site or resource.
7. ACCOUNTS, FEES, SERVICE LEVELS, AND CANCELLATION
The Service allows you to upload or enter content such as text, video, photos, and audio, and to publish stories, ebooks, publications, and applications across a variety of digital environments. Atavist may offer different aspects of this service to you based on your account type, whether free or paid on a recurring basis. For the latest fees by account type, please refer to our current Plans page. We retain the right, at our sole discretion, according to the defined account type you have obtained, to implement limits to the nature or size of storage available to you, the number of stories and publications you may publish, the amount of upload or download bandwidth, or your continued ability to access or distribute, your Content and other data, and other features. Atavist may offer you the ability to sell your content within its digital environments, and may offer you varying royalties based on your account type.
7.1 General Terms
You agree to pay the then-current fee for the account type you have selected. The initial fee for the account type you have selected will automatically and immediately be charged to your payment instrument or account upon upgrading from a free account. Fees charged for one account type may not be credited towards other account types, except by separate agreement. All currency references are in U.S. dollars.
7.1.a. Advertising on Atavist Web Environments
Unless you have a paid account explicitly authorizing you to do so, you agree NOT to embed or otherwise display any third-party served advertising on Atavist web environments (atavist.com, atavist.com subdomains, or a domain alias). Atavist may, at its sole discretion, unpublish or otherwise disable stories that display such advertising in violation of this policy.
7.1.b. Hosted Service
Atavist is a hosted service, with all user content inside the Service and published to the web being hosted on servers paid for and controlled by Atavist. Unless by explicit agreement, you agree not to alter any web or app hosting of your content to servers outside those controlled by Atavist. You may, however, remove from the system and host or distribute ebook files such as EPUB files, as allowed by your account.
7.2. Mobile apps
If your account has been enabled to create mobile apps based on separate agreement, you should be aware that in the iOS and Android environments, your app may be rejected from certain stores for reasons that are outside of Atavist’s control (including but not limited to: your content not meeting certain guidelines, you failing to set up your app accounts correctly with those retailers, or those retailers changing their policies with respect to app acceptance). Atavist does not and cannot guarantee that your app will be accepted into any given store.
Except by separate agreement, you are responsible for supporting your readers, purchasers, and subscribers. Atavist may from time to time forward emails to your registered email address from readers or subscribers of your publication(s).
7.4 Payment for Service
For all for-pay account types, payment occurs on a pre-pay basis and payment will be automatically renewed for the next term, at the end of each term. The amount you are to pay will depend upon which account type you choose.
If your credit card is invalid for any reason, your for-pay Atavist account may revert to an Atavist free account and will be subject to the limitations of a free account; provided, however, that Atavist reserves the right to cancel your account entirely in such case. Atavist further reserves the right to cancel, or revert to a free account status, the account of any user who attempts to fraudulently obtain an Atavist paid account.
7.5 Cancellation of Service
Unless Atavist provides notice to the contrary, payment for the Service is non-refundable. If you cancel your recurring payment option, your account will remain active until its next renewal date. At that point, if you do not elect to purchase additional service, your account will be suspended and you will have the option of converting to a free account type—subject to the limitations of a free account. If you delete your account before the end of the term for which you paid, your cancellation will take effect immediately. In either case (cancellation or deletion), you will not be entitled to any refund, whether complete or partial.
Content and templates that you produce in Atavist can be exported, depending on your plan level, while your account remains active—which remain yours to keep upon cancelling your account. If you plan to cancel your account, you should remember to export and download your content before doing so.
7.5.a. What Happens to Your Content Upon Cancellation
If you are a for-pay user in the Atavist Environments and you cancel a paid account and/or your account reverts to a free account, a portion of your content will remain published at whatever level a current free account allows. For example, if a free account allows you one paid story, and you have produced multiple stories under an unlimited account and then downgraded, those stories may be unpublished and your account given the right to republish one of them. Your stories will no longer be eligible to be sold through Atavist web environments (atavist.com, atavist.com subdomains, or a domain alias). You agree that if you have sold through Atavist web environments prior to cancelling your account, you will reconcile and collect all moneys due to you before cancelling.
If you have an Atavist-produced mobile app connected to your account and you choose to cancel or downgrade your account, your app will be “frozen,” meaning that the app will retain its current content, which will be available to users of the app. You will be unable to update or alter the content or the app itself. If you choose to restart your account, you will regain the ability to update your app and content. (You always retain the right to take down your own app from any store to which you’ve submitted it, according to the policies of that store, e.g. the iOS store.) If you cancel a mobile app-enabled account within the first six months of sign up, however, Atavist reserves the right to limit or disable the content to your app. After three (3) consecutive months of your app being disabled, Atavist reserves the right to unpublish all stories in your app or otherwise display messaging that your app has been disabled.
If you downgrade your account from from a paid to free account, Atavist reserves the right to reinsert Atavist logos, footers, or other branding into your published stories. This branding will be in line with what is default across “Free” accounts.
8. SELLING YOUR CONTENT THROUGH ATAVIST ENVIRONMENTS
The following Terms apply solely to users of the Service who are publishing to the Atavist web site (atavist.com or a domain alias) and Atavist apps (collectively, “Atavist Environments”). Users with an Atavist-produced mobile app are also subject to the terms and conditions under the stores in which their apps are distributed.
8.1 Fees Associated with Selling Through the Atavist Environments
Atavist Fees for selling Projects on the web are subject to the Fees Policy. Fees are determined by Plan level, and are subject to change. Changes to Atavist’s fee policy are effective after Atavist provides you with at least fourteen (14) days’ notice by posting the changes to the site. However, Atavist may choose to temporarily change the Fees Policy for promotional events; such changes are effective when Atavist posts the temporary promotional event to the site. You are responsible for creating, maintaining and linking any third-party payment network accounts, e.g. Stripe or other payment processing accounts required to sell through Atavist. Atavist is not responsible for problems with your accounts on such services.
8.2 Listing Description
By choosing to sell any content item (including but not limited to an “project,” “ebook,” “story,” or “issue”) through the Atavist, you warrant that you and all aspects of the item comply with Service’s published policies. You also warrant that you may legally sell the item. You must accurately describe your item. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category, if category options are available, and/or with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing.
8.3 Customer Return
You as a seller on Atavist should set your own policies regarding returns and refunds. These policies, stating whether and how purchasers of content may “return” such content, should be included in the receipt email sent to your customers. Any Atavist Returns Policy, which is subject to change, will be incorporated into this agreement by reference.
You may discontinue your use of the Service at any time, for any or no reason and with or without notice. Atavist may also terminate the Service, or your access to or use of the Service or your account, with or without notice. Reasons for Atavist terminating your account or the Service include, without limitation: (a) breach or violation of these Terms of Service or any Separate Agreement, (b) your request or self-effecting account deletion, (c) an extended period of inactivity (determined in Atavist’s sole discretion, after attempts have been made to contact you), (d) your nonpayment of any fees or other sums due Atavist or any other party related to your use of the Service, (e) requests by law enforcement or other government agencies, (f) the discontinuance or material modification to the Service (or any part thereof), or (g) unexpected technical or security issues or problems.
You agree to indemnify and hold Atavist, its subsidiaries, affiliates, officers, agents, employees, advertisers, and partners harmless from any claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of the Service, or content you allow to contact, enter, or pass through the Service. In the event of such claim, we will provide notice of the claim, suit, or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ATAVIST EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) ATAVIST DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED, ACCESSED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE, AND ANY DAMAGE TO OR LOSS OF DATA, THAT RESULTS FROM ANY MATERIAL YOU DOWNLOAD, ACCESS OR OTHERWISE OBTAIN THROUGH THE USE OF THE SERVICE.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ATAVIST OR THROUGH OR FROM THE SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
12. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ATAVIST, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF ATAVIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) ATAVIST’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
13. EXCLUSIONS AND LIMITATIONS
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS IN SECTIONS 11 AND 12 WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree that we may provide you with notices hereunder by email, regular mail, or postings on the Web site(s) related to the affected Service, in our discretion, and that we may rely upon the contact information you have provided as being accurate, complete and current.
Except where these Terms of Service or any Separate Agreement specifically provide for use of a different means or address for notice, any notice hereunder to Atavist must be delivered by email to support AT atavist DOT com. This email address may be updated as part of any update to these Terms of Service.
15. GENERAL TERMS
(a) These Terms of Service constitute the entire agreement between you and Atavist and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms of Service, as in effect from time to time, supersede any prior agreements or earlier versions of these Terms of Service between you and Atavist for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms of Service shall not affect your legal relationship with such third party.
(b) You acknowledge and agree that each affiliate of Atavist shall be a third party beneficiary to these Terms of Service and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms of Service which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms of Service.
(c) These Terms of Service and the relationship between you and Atavist shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and Atavist agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Kings County, New York. Notwithstanding this, you agree that Atavist shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any applicable jurisdiction.
(d) The failure or delay by Atavist to exercise or enforce any right or provision of these Terms of Service or rights under applicable law shall not constitute a waiver of any such provisions or rights. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
(e) You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these Terms of Service must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
(f) Atavist products and services are meant to be used worldwide, and we are proud of the breadth of our user community around the world. However, Atavist’s servers and operations are located in the United States, and our policies and procedures are based on United States law. As such, for Subscribers located outside of the United States: (1) you consent to the transfer, storage, and processing of your information, including but not limited to Subscriber Content and any personal information, to and in the United States and/or other countries; and (2) if you are using the Services from a country embargoed by the United States, or are on the United States Treasury Department’s list of Specially Designated Nationals,” you agree that you will not engage in financial transactions, or conduct any commercial activities using or through the Services.
(g) The section headings in these Terms of Service are for convenience only and have no legal or contractual effect.