SERVICE TERMS

SERVICE TERMS 1. Acceptance and Parties

These Terms and conditions together with the Privacy Policy (defined below) (hereinafter collectively “Terms”) govern your use of the application “Atomic Shocksense” (hereinafter “App”) where you accessed these Terms and use of the related services (hereinafter collectively ““Services”). In addition to these Terms, there may be additional conditions applicable to certain parts of the Services. These Terms constitute an agreement between you and Atomic Austria GmbH (hereinafter “Atomic” or “we/us” or “Company”). These Terms define the rights and responsibilities of you and Atomic as of 15.10.2020.

You are not allowed to use the Services if you do not agree to the Terms.

The technical service provider of the App is Atomic.

The App is not personal protective equipment. We are not responsible for the irresponsible handling of our customers nor any injury or damage that results from use of the Services. The App requires access to the mobile network, make sure that the App can always use mobile data.

2. Amendment of Terms

Occasionally, for legitimate reasons, we may make changes to the Terms, for example to improve existing functions or features or to add new functions or features to the services, to implement scientific and technical advances or to make appropriate technical adjustments to ensure the functionality or security of the Services and from legal or regulatory reasons. If we make changes to the Terms that may affect the ongoing contractual relationship between you and us, we may inform you in advance in an appropriate manner according to the circumstances, for example by displaying a conspicuous message by sending you an email or by asking for your consent within the Services. This notice may include information about the proposed changes and your right to reject the changes, where to send the rejection, and the consequences if you do not reject it. The changes are accepted if you (a) do not reject them within 30 days or (b) use the App following a change to the Terms. We reserve the right to change these Terms at any time, with or without notice.

3. Eligibility

In order to use the Services and be able to access content, (1) you must be 18 or older, or a minor in the country you are living and have the consent of your parents or guardian to the Terms, and (2) you must be authorized to enter into a legally binding contract with us and must not be prevented from doing so by applicable legal provisions and (3) must be an end-consumer. You also warrant that all information you submit to Atomic (such as part of the registration process) is true, correct and complete and you agree to ensure this at all times.

By accepting these Terms and starting the use of the Services, you represent and warrant that you have complied and continue to comply with the aforementioned procedures.

4. Registration and Termination

Use of the Services requires registration. You agree to provide truthful and complete information when registering for the Services and to keep that information updated. Providing misleading information about your identity is forbidden.

When you register, you will create a username and a password. You (and your parent or legal guardian, if you are a minor) are personally responsible for any use of the Services with your username and password. You agree to take due care in protecting your username and password against misuse by others and to promptly notify the Company about any misuse. Unless expressly permitted, an account may not be shared with other people.

You may terminate your registration if you no longer wish to use the Services by contacting us directly using the contact details given in this document you can terminate your registration. After termination, you will no longer have access to the Services.

We may terminate your registration or restrict your access to certain parts of the Services or take any other action of whatsoever nature, as we may deem appropriate at our exclusive discretion, if there is an indication that you have breached the Terms or, with a prior notice, if you have not signed into the Services with your username in the past six (6) months. Due to the blocking or deletion of user accounts, the user has no claims for compensation, exemption or reimbursement. The blocking or deletion of accounts for reasons for which the user is responsible does not release the user from the obligation to pay agreed fees or prices.

We shall not be responsible for any removal of the information or content you have submitted (hereinafter the “Material”) from the Services when your registration is terminated.

After the Material is removed from the Services by either you or us, some traces of the Material may remain, and copies of the Material may still reside within the Services.

5. Using the Services

You agree to:
1) Use the Services only for your private, non-commercial purposes;
2) Comply with applicable laws, the Terms and good manners;
3) Respect the privacy of others.

You understand that:
The Services are licensed and/or made available "as is," as further specified in Section 12.

Specifically, we have the right to terminate your right to use the Services without notice at any time for any reason at our sole discretion and in particular, if you breach these Terms or use the Services unlawfully or in a way that we deem inappropriate, for example, for commercial purposes or in case we notice exceptionally high traffic to the Services from a particular IP address(es).

In order to be able to use certain features of the App, your device may have to be equipped with a GPS module for emergency call.

6. Right to Use the Services

The Services and the applications of the site are Copyright © Atomic Austria GmbH (or Atomic Austria GmbH's affiliates or suppliers or other third parties).

Any rights not expressly granted herein are reserved. Reproduction, transfer, distribution or storage of part or all the contents in any form without the prior written permission of Atomic is prohibited except in accordance with the following terms.

Atomic consents to your use of the Services on your computer, mobile phone, smart watch or other similar devices, as applicable, downloading the outcomes of the Services and printing copies of extracts from these pages for your personal use only and not for redistribution, unless consented to in writing by Atomic. The prohibition of redistribution of the outcomes of the Services regarding your own personal extracts shall not apply to redistribution of such extracts in social media.

The Services and the content thereof may be used by you solely for private, non-commercial purposes, subject to these Terms and any applicable laws.

Please note that individual applications, documents and/or services provided as part of the Services may be subject to additional terms, such as end-user software agreements indicated in connection with the applications, documents and/or services.

7. Feedback and Other Submissions by You

Your submission of Material to the Services does not transfer ownership rights of the Material to the Company. By submitting any Material to any of the Company's servers, for example, by e-mail or via the Services, you agree that:

a) the Material will not contain any item that is unlawful, invasive of another person's right of privacy or right of publicity or otherwise inappropriate due to, without limitation, its libelous, slanderous or defamatory nature and recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Materials;

b) you will use reasonable efforts to scan and remove any viruses or other contaminating or destructive features before submitting any Material; and

c) you own the Material or have the unlimited right to provide it to the Company and you grant the Company and its suppliers a worldwide, irrevocable, perpetual, non-exclusive, fully-paid, royalty-free and assignable license to use, copy, reproduce, modify, create derivative works, publicly perform and publicly display such Material and distribute reproduced and modified copies there-of in any and all mediums now known and/or later developed.. The following right applies also to subcontractors of the Company and its affiliates and suppliers conducting work for the Company and its affiliates and suppliers. The Company may, among others, incorporate the Material, or any concepts described in it, in its products without any compensation, accountability and/or liability to you;

d) your use of the Services will not compromise the security or integrity of the Company's computer systems, networks or web site(s) or servers, whether by allowing intruders into the same, introducing viruses or other threats, imposing a disproportionate or unreasonably large load on the Services or its infrastructure, or using any computer programming routine, file or device to damage or interfere with the operation of the Services;

e) you agree not to take any action against the Company or its suppliers in relation to the Material that you submit and you agree to indemnify the Company and its suppliers if any third party takes action against the Company or its suppliers in relation to the Material you submit.

We reserve the right to remove, delete, block or correct such Material at our own discretion and to deny the uploading user access to the App without prior notice:
a) if a complaint is received in connection with the uploaded Material;
b) if a violation of exclusive property rights is reported;
c) due to official government order; or
d) if we are advised that the availability of the content via this App can have a negative impact on users, third parties and / or on the availability of the service.

Due to the removal, deletion, blocking or correction of content, the user responsible for the content concerned has no claims for damage or reimbursement.

8. Fees

Your use of the Services may be or may become subject to charges. Any fees charged by the Company may be announced separately in connection with the Services. You may incur additional fees from the use of mobile and/or Internet services of your network service provider or other telecommunications operator/carrier and/or other service provider, including without limitation SMS, MMS and WAP browsing, data transfer fees and other services that require the use of airtime and mobile data services. The Company or its suppliers assumes no responsibility for the payment of such fees. Your operator/carrier is in every respect solely responsible for the services it provides to you.

9. Availability

The Services may not be available in some countries and may be provided only in selected languages. The Services may be network dependent. Contact your network service provider for more information.

The Company reserves the right, at its sole discretion, to change, improve and correct the Services. The Services may not be available during maintenance breaks and other times.

The Company may also decide to discontinue the Services or any part thereof at its sole discretion. In such case you may be provided a prior notification. The Company shall not be liable to you or any third party for the possible discontinuance of the Services or any part thereof.

10. Personal Data

The Company respects your rights to privacy. The Privacy Policy, as amended from time to time, is available at here and is applicable to these Terms and to the Services. The Privacy Policy defines how, why and to which extent the Company collects and uses personal and non-personal information. By installing, accessing or using the Services you explicitly agree with the terms and conditions of the Privacy Policy and to any terms and conditions included therein by reference.

Please familiarize yourself with the Privacy Policy prior to using the Services.

By installing, accessing or using the Services, you consent to our information collection and usage terms, including (where applicable) the transfer of data into a country inside or outside of the European Union and/or the European Economic Area, such as the United States of America.

By using the Services, you specifically acknowledge and agree that in-app advertisement by the Company, its affiliates or third parties operating on behalf of the Company or consented by you, may be shown to you within the Services, and that the Company may freely commercially utilize your data that is not personally identifiable.

Important information regarding the App:

A consent for sharing the application data, such as your helmet impacts, profile information and emergency contact information, with Atomic is given when you sign into the application for the first time. For more information, please read our Data practices.

You may revoke your consent for sharing the data at any time by contacting us. If you wish to permanently remove all of your personal data from the App you are using or revoke your consent for the data sharing, the removal of your personal data will be done, after which you may no longer use the App and/or Services.

11. Warnings

Your safety is important for the Company. Before using the Services and/or our products, please read carefully our general warnings available at: General Product Warnings.

By using the Services, you represent and warrant that you have read the warnings and agree to comply with the instruction included therein.

12. Limitation of Liability

The Services are provided on "AS IS" and "AS AVAILABLE" basis. The Company does not warrant that the Services will be uninterrupted or error or virus-free. The Company reserves the right to revise the Services and the contents or withdraw access to the same at any time. No warranty of any kind, either express or implied, including but not limited to warranties of title or non-infringement or implied warranties of merchantability or fitness for a particular purpose, is made in relation to the availability, accuracy, reliability, information or content of the Services. You expressly agree and acknowledge that the use of the Services is at your sole risk and that you may be exposed to content from various sources.

Except for liability for death or personal injury caused by gross negligence or intentional misconduct, the Company or its suppliers shall not be liable for any direct, indirect, incidental, punitive or consequential damages caused by the use or inability to use the Services, even if the Company has been advised of the possibility of such damages.

Some jurisdictions do not allow exclusion of certain warranties or limitations of liability, so the above limitations or exclusions may not apply to you. The liability of the Company and its suppliers is in such case limited to the greatest extent permitted by law.

13. Indemnification

You agree to defend, indemnify and hold the Company and its suppliers harmless from and against any and all third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of i) your breach of the Terms, ii) your infringement or violation of any intellectual property, other rights or privacy of a third party, iii) misuse of the Services by a third party where such misuse was made available by your failure to take reasonable measures to protect your username and password against misuse.

14. Miscellaneous

Choice of Law and Arbitration

Except where prohibited by applicable law or provided otherwise herein, the Terms shall be governed by the laws of Austria without regard to its conflict of law provisions. We do not participate in dispute resolution proceedings before a consumer arbitration board for contracts to which these Terms of use apply.

You agree to abide by applicable export control laws in the USA and other countries and not to transfer or make available, by electronic transmission or otherwise any content, software or materials subject to restrictions under such laws to a destination prohibited by such laws.

If you are a US resident the following paragraph shall apply:

The Terms shall be governed by the laws of New York without regard to its conflicts of law provisions. Any dispute relating to these Terms or the Services shall be submitted to binding arbitration in Manhattan, New York within eighteen (18) months of the date the facts giving rise to the suit were known, or should have been known, by the complainant, except that the Company may seek injunctive or other relief if you have violated or threatened to violate any intellectual property rights. All matters relating to arbitration shall be governed by the Federal Arbitration Act (9 U.S.C. §1 et. seq.). Arbitration shall be conducted by a single arbitrator under the then prevailing Wireless Arbitration Rules of the American Arbitration Association (AAA). Each party must submit any claim which would constitute a compulsory counterclaim in litigation or such claim shall be barred. No award of exemplary, special, consequential or punitive damages shall be permitted. The losing party, as determined by the arbitrator, shall pay the arbitration fees. The arbitrator's award shall be binding and may be entered as a judgment and enforceable in any court of competent jurisdiction. Arbitration shall be conducted on an individual, not class-wide basis, and no arbitration shall be joined with an arbitration involving any other person or entity.

Validity

The Terms shall neither exclude nor limit any of your mandatory rights in your country of residence. If a provision of the Terms is found to be invalid, the validity of the remaining provisions shall not be affected, and the invalid provision shall be replaced with a valid provision that comes closest to the result and purpose of the Terms. If there is any conflict between these Terms and the Privacy Policy, the provisions of these Terms shall prevail. The provisions of the Terms that are intended to survive termination shall remain valid after any termination.

Links to Third Party Sites and Content

For your easy accessibility, the Company may include links to sites on the Internet that are owned or operated by third parties and that are not part of the Services. Upon following a link to such a third-party site, you shall review and agree to that site's rules of use before using such site.

You agree that the Company has no control over the content of third-party sites and cannot assume any responsibility for services provided or material created or published by such sites. A link to a third-party site does not imply that the Company endorses the site, or the products or services referenced in the Services.

In addition, users may create links within the Services to content that has not otherwise been submitted to the Services. You agree that the Company is neither responsible for nor liable for any such links.

15. Intellectual Property

The Services and related software are protected under international copyright laws, and you are hereby notified that copyrights are claimed by the Company. Subject to the Terms, the Company retains all right, title and interest in the Services and in all of the Company's products, software and other properties provided to you or used by you through the Services.

The Company's product and service names are either trademarks or registered trade names of the Company. Other product and company names mentioned in the Services may be trademarks or trade names of their respective owners. Your access to the Services should not be construed as granting, by implication, estoppel or otherwise, any license or right to use any marks appearing in the Services without the prior written consent of the Company or the third party owner thereof.

16. Disclaimers

THE COMPANY, ITS SUBSIDIARIES, DIVISIONS AND AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “AMER PARTIES”) DO NOT WARRANT THAT ANY INFORMATION, CONTENT OR MATERIAL OF THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. THE INFORMATION, CONTENT OR MATERIAL OF THE SERVICES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. THE AMER PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE AMER PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICES, WHETHER IN TERMS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE AMER PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND AGREE THAT ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OF SUCH CONTENT. YOU (AND NOT THE AMER PARTIES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

YOU UNDERSTAND AND AGREE THAT THE DISCLAIMERS SET FORTH HEREIN APPLY TO ALL CAUSES OF ACTION NOW KNOWN OR WHICH MAY ARISE IN THE FUTURE. IF YOU ARE A RESIDENT OF NEW JERSEY, USA: THIS DISCLAIMER SECTION IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY, USA LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY, USALAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THESE TERMS OF USE LIMITS OR EXCLUDES OUR RESPONSIBILITY FOR LOSSES OR DAMAGES CAUSED BY OUR OWN FRAUD, RECKLESSNESS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

17. Limitation of Liability

THE AMER PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY CAUSED BY THE SERVICES OR ANY CONTENT ON THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE OR COMPUTER VIRUS. THE AMER PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE CONTENT OR MATERIALS ON THE WEBSITES EVEN IF THERE IS NEGLIGENCE BY THE AMER PARTIES OR IF AN AUTHORIZED REPRESENTATIVE OF THE AMER PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BOTH. THE AMER PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM LINKING TO ANY THIRD-PARTY WEBSITE.

IF YOU ARE A RESIDENT OF NEW JERSEY, USA: THIS LIMITATION OF LIABILITY SECTION IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY, USA LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY, USA LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THESE TERMS OF USE LIMITS OR EXCLUDES OUR RESPONSIBILITY FOR LOSSES OR DAMAGES CAUSED BY OUR OWN FRAUD, RECKLESSNESS, GROSS NEGLEGENCE OR WILLFUL MISCONDUCT.

18. Questions, contact information

If you have any questions about the Services, the Terms or your registration (“Questions to Customer Care”), please contact us via app-support@atomic.com. We make reasonable efforts to answer all customer service questions within a reasonable time but cannot promise that all customer service questions will be answered and / or answered within a certain period of time.

Thank you for reading the Terms of use. We hope you enjoy using Atomic Shocksense.

Your contractual partner:

Atomic Austria GmbH
Atomic Strasse 1
A-5541 Altenmarkt, Austria