Atmosphere Innovations, LLC Terms of Service

Effective: September 20, 2024

Welcome!

We’ve drafted these Terms of Service (which we call the “Terms”) so you’ll know the rules that govern our relationship with you as a user of Atmosphere or any of our other products or services that are subject to them (which we refer to collectively as the “Services”). Our Services are personalized and we provide information about how they work in these Terms, and within the Services (such as notices, consents, and settings). The information we provide forms the main subject matter of these Terms.

Although we have tried our best to strip the legalese from the Terms, there are places where they may still read like a traditional contract. There’s a good reason for that: these Terms form a legally binding contract between you and Atmosphere Innovations (“Atmosphere”). So please read them carefully.

By using any of our Services, you agree to the Terms. If so, Atmosphere grants you a non-assignable, non-exclusive, revocable, and non-sublicensable license to use the Services in accordance with these Terms and our policies. Of course, if you don’t agree with the Terms, then don’t use the Services.

ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE A LITTLE LATER ON. YOU AND ATMOSPHERE AGREE THAT, EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND ATMOSPHERE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AS EXPLAINED IN THAT ARBITRATION CLAUSE.

1. Who Can Use the Services

Our Services are not directed to children under the age of 18, and you must confirm that you are 18 years or older to create an account and use the Services. If we have actual knowledge that you are under the age of 18, we will cease providing the Services to you and delete your account and your data. We may offer additional Services with additional terms that may require you to be even older to use them. So please read all such terms carefully. By using the Services, you represent, warrant, and agree that:

you can form a binding contract with Atmosphere;
you are not a person who is barred from using the Services under the laws of the United States or any other applicable jurisdiction — including, for example, that you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition;
you are not a convicted sex offender; and
you will comply with these Terms and all applicable local, state, national, and international laws, rules, and regulations.

If you are using the Services on behalf of a business or some other entity, you represent that you are authorized to bind that business or entity to these Terms and you agree to these Terms on behalf of that business or entity (and all references to “you” and “your” in these Terms will mean both you as the end user and that business or entity).

In summary: Our Services are not directed to anyone under the age of 18. If we become aware that you are under this age we will suspend your use of the Services and delete your account and data.

2. Rights You Grant Us

Many of our Services let you create, upload, post, send, receive, and store content. When you do that, you retain whatever ownership rights in that content you had to begin with. But you grant us a license to use that content. How broad that license is depends on which Services you use and the settings you have selected.

For all content you submit to the Services (including Public Content), you grant Atmosphere and our affiliates a worldwide, royalty-free, sublicensable, and transferable license to host, store, cache, use, display, reproduce, modify, adapt, edit, publish, analyze, transmit, and distribute that content. This license is for the purpose of operating, developing, providing, promoting, and improving the Services and researching and developing new ones. This license includes a right for us to make your content available to, and pass these rights along to, service providers with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services.

We call Atmostream submissions and any other content you submit to public Services, like Public Profiles, “Public Content.” Because Public Content is inherently public, you grant Atmosphere, our affiliates, other users of the Services, and our business partners an unrestricted, worldwide, royalty-free, irrevocable, and perpetual right and license to create derivative works from, promote, exhibit, broadcast, syndicate, reproduce, distribute, synchronize, overlay graphics and auditory effects on, publicly perform, and publicly display all or any portion of your Public Content in any form and in any and all media or distribution methods, now known or later developed, for commercial and non-commercial purposes. This license applies to the separate video, image, sound recording, or musical compositions contained in your Public Content, as well as the name, image, likeness, and voice of anyone featured in Public Content that you create, upload, post, send, or appear in. This means, among other things, that you will not be entitled to any compensation if your content, videos, photos, sound recordings, musical compositions, name, image, likeness, or voice are used by us, our affiliates, users of the Services, or our business partners. For information about how to tailor who can watch your content, please take a look at our Privacy Policy. All Public Content must be appropriate for people ages 18+.

While we’re not required to do so, we may access, review, screen, and delete your content at any time and for any reason, including to provide and develop the Services or if we think your content violates these Terms or any applicable laws. You alone, though, remain responsible for the content you create, upload, post, send, or store through the Services.

We, our affiliates, and our third-party partners may place advertising on the Services, including personalized advertising based on the information you provide us, we collect, or we obtain about you. Advertising may sometimes appear near, between, over, or in your content.

We always love to hear from our users. But if you provide feedback or suggestions, just know that we can use them without compensating you, and without any restriction or obligation to you. You agree that we will own all rights in anything we develop based on such feedback or suggestions.

In summary: If you post content that you own to the Services, you remain the owner but you allow us and others to use it to provide and promote our Services. You also allow other users to view and, in some cases, use any content you make available to others on the Services. We have various rights to change and remove your content, but you always remain responsible for everything you create, post or share.

4. Privacy

Your privacy matters to us. You can learn how your information is handled when you use our Services by reading our Privacy Policy.

5. Personalized Recommendations

Our Services provide a personalized experience to make them more relevant and engaging for you. We will recommend content, advertising, and other information to you based on what we know and infer about your and others’ interests from use of our Services. It is necessary for us to handle your personal information for this purpose, as we explain in our Privacy Policy. Personalization is also a condition of our contract with you for us to be able to do so, unless you opt to receive less personalization in the Services.

In summary: Our Services provide a personalized experience, including advertising and other recommendations to you based on data we collect as explained in our Privacy Policy.

6. Content Moderation

Much of the content on our Services is produced by users, publishers, and other third parties. Whether that content is posted publicly or sent privately, the content is the sole responsibility of the user or entity that submitted it. Although Atmosphere reserves the right to review, moderate, or remove all content that appears on the Services, we do not review all of it. So we cannot — and do not — guarantee that other users or the content they provide through the Services will comply with our Terms, policies or guidelines.

Users can report content produced by others or others’ accounts for violation of our Terms, or other guidelines and policies.

We hope you’ll understand any decisions we make about content or user accounts, but if you have any complaints or concerns, you can use the submission form available here or use available in-app options. If you use this process, your complaint must be submitted within six months of the relevant decision.

Upon receiving a complaint, we will:

ensure the complaint is reviewed in a timely, non-discriminatory, diligent and non-arbitrary manner;
reverse our decision if we determine our initial assessment was incorrect; and
inform you of our decision and of any possibilities for redress promptly.

In summary: Most content on the Services is owned or controlled by others and we don't have any control or responsibility over that content. We have content moderation policies and processes in place that apply to content on the Services.

7. Respecting the Services and Atmosphere’s Rights

As between you and us, Atmosphere is the owner of the Services, which includes all related brands, works of authorship, software, and other proprietary content, features, and technology.

You must also respect Atmosphere’s rights and adhere to any guidelines, support pages, or FAQs published by Atmosphere or our affiliates. That means, among other things, you may not do, attempt to do, enable, or encourage anyone else to do, any of the following and doing so may result in us terminating or suspending your access to the Services:

use branding, logos, icons, user interface elements, product or brand look and feel, designs, photographs, videos, or any other materials Atmosphere makes available via the Services, except as explicitly allowed by these Terms or other brand guidelines published by Atmosphere or our affiliates;
violate or infringe Atmosphere’s, our affiliates’, or any other third party’s copyrights, trademarks, or other intellectual property rights, including by using the Services to submit, display, post, create, or generate any infringing content;
copy, modify, archive, download, upload, disclose, distribute, sell, lease, syndicate, broadcast, perform, display, make available, make derivatives of, or otherwise use the Services or the content on the Services, other than temporary files that are automatically cached by your web browser for display purposes, as otherwise expressly permitted in these Terms, as otherwise expressly permitted by us in writing, or as enabled by the Service’s intended functionality;
create another account if we have already disabled your account, attempt to access the Services through unauthorized third-party applications, solicit login credentials from other users, or buy, sell, rent, or lease access to your account or username;
reverse engineer, duplicate, decompile, disassemble, or decode the Services (including any underlying idea or algorithm), or otherwise extract the source code of the software of the Service;
use any robot, spider, crawler, scraper, or other automated means or interface to access the Services or extract other users’ information;
use or develop any third-party applications that interact with the Services or other users’ content or information without our written consent;
use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services;
upload viruses or other malicious code or otherwise compromise, bypass, or circumvent the security of the Services;
attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Services that you are not authorized to access;
probe, scan, or test the vulnerability of our Services or any system or network;
violate any applicable law or regulation in connection with your access to or use of the Services; or
access or use the Services in any way not expressly permitted by these Terms.

In summary: We own or control all of the content, features and functionalities of the Services. To ensure the Services and other users are protected from harm, there are rules we need you to follow when you use our Services. Failure to comply with these rules may result in suspension or termination of your account.

8. Respecting Others' Rights

Atmosphere respects the rights of others. And so should you. You therefore may not use the Services, or enable anyone else to use the Services, in a manner that violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right. When you submit content to the Services, you agree and represent that you own that content, or that you have received all necessary permissions, clearances, and authorizations in order to submit it to the Services (including, if applicable, the right to make mechanical reproductions of the musical works embodied in any sound recordings, synchronize any compositions to any content, publicly perform any compositions or sound recordings, or any other applicable rights for any music not provided by Atmosphere that you include in your content) and grant the rights and licenses contained in these Terms for your content. You also agree that you will not use or attempt to use another user’s account except as permitted by Atmosphere or its affiliates.

9. Safety

We try hard to keep our Services a safe place for all users. But we can’t guarantee it. That’s where you come in. By using the Services, you agree that you will at all times comply with these Terms and any other policies Atmosphere makes available in order to maintain the safety of the Services.

If you fail to comply, we reserve the right to remove any offending content; terminate or limit the visibility of your account, and retain data relating to your account in accordance with our data retention policies; and notify third parties — including law enforcement — and provide those third parties with information relating to your account. This step may be necessary to protect the safety of our users, and others, to investigate, remedy, and enforce potential Terms violations, and to detect and resolve any fraud or security concerns.

We also care about your physical safety while using our Services. So do not use our Services in a way that would distract you from obeying traffic or safety laws. For example, never use the Services while driving. And never put yourself or others in harm’s way just to engage with other Atmosphere features.

In summary: We try to make our Services as safe as possible, but we need your help. These Terms and other Atmosphere policies contain important information about how to keep the Services and other users safe. And never put yourself or others in harm’s way when using our Services.

10. Your Account

To use certain Services, you need to create an account. You agree to provide us with accurate, complete, and updated information for your account. You are responsible for any activity that occurs in your account. So it’s important that you keep your account secure. One way to help keep your account secure is to select a strong password that you don’t use for any other account and to enable two-factor authentication. If you think that someone has gained access to your account, please immediately reach out to our team through our Contact page. Any software that we provide to you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings. You agree not to create any account if we have previously removed or banned you or your account from any of our Services, unless we consent otherwise.

In summary: Keep your account details safe and secure. Only use an account if you are authorized by us to do so.

12. Data Charges and Mobile Phones

You are responsible for any mobile charges that you may incur for using our Services. This includes data charges and charges for messaging, such as SMS, MMS, or other messaging protocols or technologies (collectively, “Messages”). If you’re unsure what those charges may be, you should ask your service provider before using the Services.

By providing us with your mobile phone number you agree, among other things, to receive Messages from Atmosphere related to the Services, including about promotions (where we have consent or as permitted by law), your account, and your relationship with Atmosphere. You agree that these Messages may be received even if your mobile phone number is registered on any state or federal Do Not Call list, or international equivalent.

If you change or deactivate the mobile phone number that you used to create an account, you must update your account information through Settings within 72 hours to prevent us from sending messages intended for you to someone else.

In summary: We may send you Messages, and mobile charges may apply when you use our Services.

13. Third-Party Materials and Services

Certain Services may display, include, or make available content, data, information, applications, features, or materials from third parties (“Third-Party Materials”), provide links to certain third-party websites, or permit the use of third-party services in connection with those Services. If you use any Third-Party Materials or third-party services made available through or in connection with our Services (including Services we jointly offer with the third party), the applicable third-party’s terms will govern their relationship with you. Neither Atmosphere nor any of our affiliates is responsible or liable for a third party’s terms or actions taken under any third party’s terms. Further, by using the Services, you acknowledge and agree that Atmosphere is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or third-party services or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third-Party Materials, or third-party websites, or for any other materials, products, or services of third parties. Third-Party Materials, the availability of third-party services and links to other websites are provided solely as a convenience to you.

In summary: Atmosphere isn't responsible for third-party features, content or services accessible via or in connection with our Services – please make sure you read the third party's terms.

14. Modifying the Services and These Terms

We’re relentlessly improving our Services and creating new ones all the time. That means we may add or remove features, products, or functionalities, and we may also suspend or stop the Services altogether. We may take any of these actions at any time for any reason, and when we do, we may not provide you with any notice beforehand.

This also means we may need to update these Terms to reflect any changes to our Services or how we provide them, as well as to comply with legal requirements, or for other legal or security reasons. If those changes to these Terms are material we will provide you with reasonable advance notice (unless changes are required sooner, for example, as a result of a change in legal requirements or where we are launching new Services or features). If you continue to use the Services once the changes come into effect, we will take that as your acceptance.

In summary: Our Services are going to evolve over time. We may update these Terms from time to time to reflect these changes or for other reasons.

15. Termination and Suspension

While we hope you remain a lifelong user, you can terminate these Terms at any time if you do not agree with any changes we make to these Terms, or for any other reason, by deleting your Atmosphere account (or, in some cases, the account associated with the applicable part of the Services you are using).

We may restrict, terminate, or temporarily suspend your access to the Services if you fail to comply with these Terms or the law, for reasons outside of our control, or for any other reason. That means that we may terminate these Terms, stop providing you with all or any part of the Services, or impose new or additional limits on your ability to use our Services. For example, we may deactivate your account due to prolonged inactivity, and we may reclaim your username at any time for any reason. And while we’ll try to give you reasonable notice beforehand, we can’t guarantee that notice will be possible in all circumstances.

Before we restrict, terminate or suspend your access to the Services, we will take into account all relevant facts and circumstances apparent from the information available to us, depending on the underlying reason for taking that action. This will inform our decision whether to restrict, terminate or suspend your access to the Services and, in the event of suspension, how long we suspend your access.

Regardless of who terminates these Terms, both you and Atmosphere continue to be bound by Sections 2, 3 (to the extent any additional terms and conditions would, by their terms, survive), and 6 - 24 of the Terms.

In summary: You can stop using the Services or delete your account at any time and for any reason, including if you don't like any changes to these Terms. We can restrict or terminate your access to the Services for the reasons set out above. When we do, we’ll provide you notice in most cases, as well as an opportunity to appeal the decision.

16. Indemnity

You agree, to the extent permitted by law, to indemnify, defend, and hold harmless Atmosphere, our affiliates, directors, officers, stockholders, employees, licensors, and agents from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorneys’ fees) due to, arising out of, or relating in any way to: (a) your access to or use of the Services, or any products or services provided by a third party in connection with the Services, even if recommended, made available, or approved by Atmosphere, (b) your content, including infringement claims related to your content, (c) your breach of these Terms or any applicable law or regulation, or (d) your negligence or willful misconduct.

In summary: If you cause us some damage, you will compensate us.

17. Disclaimers

We try to keep the Services up and running and free of annoyances. But we make no promises that we will succeed.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TO THE EXTENT PERMITTED BY LAW WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE WE ATTEMPT TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY, (B) THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS, OR (C) THAT ANY CONTENT, USER CONTENT, OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE TIMELY OR ACCURATE.

NEITHER WE NOR OUR AFFILIATES TAKE RESPONSIBILITY OR ASSUME LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH WE OR OUR AFFILIATES WILL BE RESPONSIBLE FOR.

In summary: Atmosphere will try to make the Services available to you, but we do not make any promises regarding quality and will not be liable for any content which is not ours.

18. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR MANAGING MEMBERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, LICENSORS, AGENTS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR MULTIPLE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, (B) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON OR THROUGH THE SERVICES, OR (C) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES EXCEED THE GREATER OF $100 USD OR THE AMOUNT YOU PAID US IN THE 12 MONTHS PRECEDING THE DATE OF THE ACTIVITY GIVING RISE TO THE CLAIM.

In summary: We limit our liability for anything you do, instances where you cannot access the Services, things others do, and any issues resulting from unauthorized use of our Services. Where we are liable to you and you have suffered some loss, we limit our liability to a set amount.

19. Arbitration, Class-Action Waiver, and Jury Waiver

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND ATMOSPHERE AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND INCLUDE A CLASS ACTION WAIVER AND JURY TRIAL WAIVER. This Arbitration Agreement supersedes all prior versions.

a. Applicability of Arbitration Agreement. In this Section 19 (the “Arbitration Agreement”), you and Atmosphere agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Services or any communications between you and Atmosphere that are not brought in small claims court will be resolved by binding arbitration on an individual basis, except that you and Atmosphere are not required to arbitrate any: (i) disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is an individual dispute and not a class action, (ii) disputes or claims where the only relief sought is injunctive relief, and (iii) disputes in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, patents or other intellectual property rights. To be clear: the phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.

b. Informal Dispute Resolution First. We want to address any disputes without needing arbitration. If you have a dispute with Atmosphere that is subject to arbitration, then prior to initiating arbitration, you agree to mail an individualized request (“Pre-Arbitration Demand”) to Atmosphere Innovations LLC. so that we can work together to resolve the dispute. A Pre-Arbitration Demand is valid only if it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all. The Pre-Arbitration Demand must include: (i) your name, (ii) your Atmosphere username, (iii) your name, telephone number, email address and mailing address or the name, telephone number, mailing address and email address of your counsel, if any, (iv) a description of your dispute, and (iv) your signature. Likewise, if Atmosphere has a dispute with you, Atmosphere will send an email or text message with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address or phone number associated with your Atmosphere account. If the dispute is not resolved within sixty (60) days of the date that you or Atmosphere send your Pre-Arbitration Demand, arbitration may then be filed. You agree that compliance with this subsection is a condition precedent to commencing arbitration, and that the arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures. Notwithstanding any other provision of this Agreement, the party against whom an arbitration has been filed has the right to seek a judicial declaration in court regarding whether the arbitration should be dismissed for failure to comply with the informal dispute resolution process set forth in this subsection.

c. Arbitration Rules. The Federal Arbitration Act, including its procedural provisions, governs the interpretation and enforcement of this dispute-resolution provision, and not state law. If, after completing the informal dispute resolution process described above, you or Atmosphere wishes to initiate arbitration, the arbitration will be conducted by National Arbitration and Mediation (“NAM") (https://www.namadr.com/). The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

d. Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.

e. Fees. If Atmosphere is the party initiating an arbitration against you, Atmosphere will pay all costs associated with the arbitration, including the entire filing fee. If you are the party initiating an arbitration against Atmosphere, you will be responsible for the nonrefundable Initial Filing Fee.

f. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Atmosphere. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Atmosphere.

g. Settlement Offers and Offers of Judgement. At least ten (10) calendar days before the date set for the arbitration hearing, you or Atmosphere may serve a written offer of judgment on the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever is first, it shall be deemed withdrawn and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs (including all fees paid to the arbitral forum) from the time of the offer.

h. Waiver of Jury Trial. YOU AND Atmosphere WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Atmosphere are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Atmosphere over whether to vacate or enforce an arbitration award, YOU AND Atmosphere WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

i. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. This subsection does not prevent you or Atmosphere from participating in a class-wide settlement of claims. Notwithstanding any other provision of this Agreement, the Arbitration Agreement, disputes regarding the interpretation, applicability, or enforceability of this waiver may be resolved only by a court and not by an arbitrator. IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. IN SUCH CIRCUMSTANCES, ANY PUTATIVE CLASS, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED OR REPRESENTATIVE ACTION THAT IS PERMITTED TO PROCEED MUST BE BROUGHT IN A COURT OF PROPER JURISDICTION AND NOT IN ARBITRATION.

j. Right to Waive. Any rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.

k. Opt-out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Atmosphere can force the other to arbitrate. To opt out, you must notify Atmosphere in writing no later than 30 days after first becoming subject to this Arbitration Agreement; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. Your notice must include your name and address, your Atmosphere email address you used to set up your Atmosphere account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must email the opt-out notice to contact @ getatmosphere.app.

l. Small Claims Court. Notwithstanding the foregoing, either you or Atmosphere may bring an individual action in small claims court.

m. Arbitration Agreement Survival. This Arbitration Agreement will survive the termination of your relationship with Atmosphere, including any revocation of consent or other action by you to end your participation in the Service or any communication with Atmosphere.

In summary: Unless you exercise your right to opt out, Atmosphere and you will resolve all claims and disputes first through an informal dispute resolution process and, if that does not resolve the issue, on an individual basis using binding arbitration. This means that you cannot bring a class action suit against us in the event of a claim or dispute.

20. Exclusive Venue

To the extent that these Terms allow you or Atmosphere to initiate litigation in a court, both you and Atmosphere agree that, except for a claim that may be brought in small claims court, all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the Delaware Court of Chancery. You and Atmosphere consent to the personal jurisdiction of both courts.

21. Choice of Law

Except to the extent they are preempted by U.S. federal law, the laws of Delaware, other than its conflict-of-laws principles, govern these Terms and any claims and disputes (whether contract, tort, or otherwise) arising out of or relating to these Terms or their subject matter.

22. Severability

If any provision of these Terms is found unenforceable, then that provision will be removed from these Terms and not affect the validity and enforceability of any remaining provisions.

23. California Residents

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

24. Final Terms

These Terms, including the additional terms referenced in Section 3, make up the entire agreement between you and Atmosphere, and supersede any prior agreements. These Terms do not create or confer any third-party beneficiary rights. If we do not enforce a provision in these Terms, it will not be considered a waiver of our rights to enforce these Terms. We reserve the right to transfer our rights under these Terms and provide the Services using another entity, provided that entity upholds these Terms. You may not transfer any of your rights or obligations under these Terms without our consent. We reserve all rights not expressly granted to you. Where we have provided summary sections in these Terms, these summaries have been included for your convenience only and you should read these Terms in full to understand your legal rights and obligations.

25. Contact Us

Atmosphere welcomes comments, questions, concerns, or suggestions. You can contact us or get support here.