These Atlas Platform as a Service Terms of Service (the “Agreement”) govern the access to and use of Atlas Services (as defined below).  By visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Atlas Services, you (the “Customer”) are entering into this Agreement with Atlas Restaurant Management Systems Inc. (“Atlas”) (Atlas and the Customer, the “Parties” and each a “Party”).  This Agreement is effective on the earlier of: (a) the date the Customer first uses any part of the Atlas Services; and (b) the date the Customer agrees to be bound by this Agreement (the “Effective Date”).

BY USING THE ATLAS SERVICES, THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13. IF THE CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, THE CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE ATLAS SERVICES.  THE CUSTOMER REPRESENTS AND WARRANTS TO ATLAS THAT THE CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.  IF THE CUSTOMER IS USING THE ATLAS SERVICES ON BEHALF OF ANOTHER PERSON, THE CUSTOMER HEREBY REPRESENTS AND WARRANTS TO ATLAS THAT THE CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

1. Definitions

Capitalized terms used in this Agreement have the meaning ascribed to them in the preamble or in this Section 1 as follows:

1. “Aggregated Data” means data, information or other materials that are not identified as relating to a particular individual or company.  
   
   

2. “AML Laws” means all laws relating to terrorism, money laundering or bribery, government sanctions and know your client requirements, including, without limitation, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada), the United Nations Act, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism (Canada) and the United Nations Al-Qaida and Taliban Regulations (Canada) promulgated under the United Nations Act, and other applicable anti-money laundering, anti-terrorist financing, government sanction and know your client laws, including any rules, regulations, directives, guidelines or orders promulgated, issued or enforced thereunder, whether within Canada or elsewhere.
   
   

3. “Amendment” has the meaning set out in Section 13(l).
   
   

4. “Applicable Laws” means applicable laws, statutes, regulations, or operating rules of any Governmental or Regulatory Authority including but not limited to financial regulators, and, for greater certainty, AML Laws and privacy laws, directive or other requirement or guideline issued by any Governmental or Regulatory Authority or as part of the Payment Network Regulations.
   
   

5. “Atlas Platform” means Atlas products and services provided at the time of this agreement as well as any Modifications thereto provided as part of the Atlas SaaS Services.
   
   

6. “Atlas Property” has the meaning set out in Section 3(b).
   
   

7. “Atlas SaaS Services” means services through which Atlas hosts and makes available the Atlas solution which connects all systems, automates manual tasks and provides timely recommendations for restaurant operators as detailed in an Order Form. Atlas SaaS Services includes the Atlas Platform and Support Services other than any Professional Services.
   
   

8. “Atlas Services” means the Atlas SaaS Services and the Professional Services, collectively, and any part of them.
   
   

9. “Availability Service Level” has the meaning set out in Section 7(a).
   
   

10.  “Business Day” means any day that is not a Saturday, Sunday or statutory holiday in the Province of Ontario;
    
    

11. “Confidential Information” has the meaning set out in Section 9(a).
    
    

12. “Customer Data” means any data, information, content, records, and files that the Customer (or any of its Permitted Users) loads, transmits to or enters into the Atlas SaaS Services, including Personal Information. 
    

13. “Customer User Account” has the meaning set out in Section 4.
    
    

14. “Discloser” has the meaning set out in Section 9(a).
    
    

15. “Feedback” has the meaning set out in Section 3(c).
    
    

16.  “Fees” has the meaning set out in Section 8(a).
    
    

17. “Force Majeure Event” has the meaning set out in Section 13(g).
    
    

18. “Governmental or Regulatory Authority” means any national, provincial, territorial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity having or purporting to have jurisdiction over a party, or any other person, property, transaction, activity, event or other matter related to this Agreement, including the Payment Networks and Debit Card Networks.
    
    

19. “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement. 
    

20. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
    
    

21.  “Order Form” means Exhibit A or any additional order form that is entered into by the Parties and that references this Agreement.
    
    

22. “Permitted User” has the meaning set out in Section 5.
    
    

23. “Personal Information” has the meaning set out in Section 4(a).
    
    

24. “Pricing Page” has the meaning set out in Section 8(a).
    
    

25. “Privacy Laws” has the meaning set out in Section 4(a).
    
    

26. “Professional Services” means the setup, consulting, and other professional services set out in an Order Form.  The term “Professional Services” does not include Atlas SaaS Services.
    
    

27. “Publicity” has the meaning set out in Section 13(b).
    
    

28. “Recipient” has the meaning set out in Section 9(a).
    
    

29. “Renewal Term” has the meaning set out in Section 12(a).
    
    

30. “Support Services” has the meaning set out in Section 6.
    
    

31. “Subscription Fees” means monthly Fees for access to Atlas Services
    
    

32. “Term” has the meaning set out in Section 12(a).
    
    

33. “User Fees” - means the Fees for users of Atlas Direct Tips who participated in at least one tip payout in a given month.
    
    

34. “Website” means any websites used by Atlas to provide the Atlas SaaS Services, including the website located at https://atlasrms.com.

2. Atlas SaaS Services

1. Provisioning of the Atlas SaaS Services.  Subject to the Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Atlas will make the Atlas SaaS Services available to the Customer on the terms and conditions set out in this Agreement (including any Order Form) during the Term.  The Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the Atlas SaaS Services, and for Permitted Users’ compliance with this Agreement.  
   
   

2. Restrictions on Use.  The Customer will not itself, nor will it permit others to:
   
   

   1. sub-license, sell, rent, lend, lease or distribute the Atlas SaaS Services or any intellectual property rights therein, or otherwise make the Atlas SaaS Services available to others;
      
      

   2. use or access the Atlas SaaS Services (A) in violation of any Applicable Law or intellectual property right, (B) in a manner that threatens the security or functionality of the Atlas SaaS Services, or (C) for any purpose or in any manner not expressly permitted in this Agreement;
      
      

   3. use the Atlas SaaS Services to create, collect, transmit, store, use or process any Customer Data other than in accordance with this Agreement:
      
      

      1. upload to the Atlas SaaS Services or otherwise use the Atlas SaaS Services in connection with any documents, information or data that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

      2. upload to the Atlas SaaS Services or otherwise use the Atlas SaaS Services in connection with any documents, information or data that the Customer does not have the lawful right to create, collect, transmit, store, use or process; or

      3. upload to the Atlas SaaS Services or otherwise use the Atlas SaaS Services in connection with any documents, information or data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
         
         

   4. Modify the Atlas SaaS Services;
      
      

   5. reverse engineer, decompile or disassemble the Atlas SaaS Services;  
      
      

   6. remove or obscure any proprietary notices or labels on the Atlas SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
      
      

   7. access or use the Atlas SaaS Services for the purpose of building a similar or competitive product or service; or
      
      

   8. perform any vulnerability, penetration or similar testing of the Atlas SaaS Services.
      
      

3. Suspension of Access; Scheduled Downtime; Modifications.  Atlas may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
   
   

   1. suspend the Customer’s access to or use of the Atlas SaaS Services:
      
      

      1. for scheduled maintenance;
         
         

      2. due to a Force Majeure Event;
         
         

      3. if Atlas believes in good faith that the Customer or any Permitted User has violated any provision of this Agreement; or
         
         

      4. to address any emergency security concerns;
         
         

      5. if required to do so by a regulatory body or as a result of a change in Applicable law; and
         
         

   2. make any Modifications to the Atlas SaaS Services.
      
      

4. Subcontracting.  Atlas may engage third parties to provide the Atlas SaaS Services, including cloud providers. 
   

1. Ownership; Reservation of Rights
   

   1. The Customer retains all ownership and intellectual property rights in and to the Customer Data.  The Customer grants to Atlas a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit the Customer Data to: (i) provide the Atlas Services; (ii) improve and enhance the Atlas Services and its other offerings; and (iii) produce Aggregated Data. Atlas may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Customer of any kind.
      
      

   2. Atlas or its licensors retain all ownership and intellectual property rights in and to: (i) the Atlas Services; (ii) anything developed or delivered by or on behalf of Atlas under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii) (collectively, “Atlas Property”).
      
      

   3. To the extent that the Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Atlas Services to Atlas (“Feedback”), the Customer acknowledges and agrees that:
      
      

      1. The Feedback does not contain confidential or proprietary information and Atlas is not under any obligation of confidentiality with respect to the Feedback; and
         
         

      2. Atlas will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to the Customer for such use.
         
         

   4. All rights not expressly granted by Atlas to the Customer under this Agreement are reserved by Atlas.
      
      

2. Privacy
   

   1. Personal Information.  Each Party will comply with all applicable federal, provincial and local laws, rules and regulations concerning the privacy and security of personally identifiable information (“Personal Information”), including, the requirements of the Personal Information Protection and Electronic Documents Act (“Privacy Laws”).  The Parties will provide reasonable assistance to each other in order to allow the Parties to comply with their respective obligations under Privacy Laws.  The Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Atlas’ privacy policy located at https://atlasrms.com/privacy-policy.
      
      

   2. Atlas Obligations.  To the extent that Atlas receives Personal Information in the course of providing the Atlas Services under this Agreement, Atlas will:
      
      

      1. only use Personal Information for the purposes of rendering the Atlas Services in accordance with the Agreement and as otherwise instructed by the Customer in writing from time to time;

      2. not disclose any Personal Information to any third party without the prior written consent of the Customer;

      3. where any disclosure or transfer of Personal Information is required by law, promptly notify the Customer in writing before complying with any such requirement for disclosure (except where legally prohibited to do so);

      4. implement physical, technical and administrative and other organizational measures to safeguard the Personal Information against loss, theft, damage or unauthorized or unlawful access or processing;

      5. store and access Personal Information from its servers located in North America;

      6. limit access to Personal Information only to those employees and sub-processors who need to have access to the Personal Information for the purposes of Atlas rendering the Atlas Services under this Agreement;

      7. notify the Customer at first reasonable opportunity upon Atlas becoming aware of, or suspecting, any loss, theft, damage or unauthorized or unlawful access or processing, and comply with all instructions of the Customer in connection therewith;

      8. upon the termination of this Agreement, return (or, upon the written instruction of the Customer, securely dispose of) all Personal Information in the possession or control of Atlas (subject to a legal requirement to maintain such Personal Information).

3. Customer User Account

   Upon the Customer’s request, Atlas will issue one or more administrator accounts to the Customer that provides the Customer with the capability to create user accounts (each, a “Customer User Account”) for use by the Customer and all individuals who are employees or contractors of the Customer that the Customer wishes to have access to and use of the Atlas SaaS Services (each user, and each administrator, a “Permitted User”).  The Customer will ensure that Permitted Users only use the Atlas SaaS Services through the Customer User Account.  The Customer will not allow any Permitted User to share the Customer User Account with any other person.  The Customer will promptly notify Atlas of any actual or suspected unauthorized use of the Atlas SaaS Services.  Atlas reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.  The Customer will ensure that all individual users of the Atlas SaaS Services, including Permitted Users, are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of Atlas’ rights than those set forth in this Agreement.
   
   

4. Support

   Atlas will provide the Customer with Atlas’ technical support services (“Support Services”) via email at support@atlasrms.com between 9:00 a.m. and 5:00 p.m. Eastern Time each day of the week, excluding statutory and civic holidays observed in Toronto, Ontario.

   
   

5. Service Levels
   

   1. Atlas will use commercially reasonable efforts to ensure that the Atlas SaaS Services is available on a 24 x 7 x 365 basis with an objective of achieving 95.00% availability for each calendar month, excluding suspension or scheduled downtime of, or Modifications to, the Atlas SaaS Services in accordance with Section 2(c) (the “Availability Service Level”).  
      
      

   2. If Atlas fails to satisfy the Availability Service Level, Atlas will use commercially reasonable efforts to rectify any issue that caused Atlas to fail to satisfy the Availability Service Level and provide Customer with a root cause analysis of such failure within 60 business days following the failure.
      
      

6. Fees and Payment
   

   1. Fees.  Unless otherwise set out on an Order Form, the Customer will pay to Atlas the fees described on our pricing page (the “Pricing Page”) available here See Pricing Page Attached (the “Fees”).  The Pricing Page or Order Form will stipulate whether the fees are in US or CDN dollars.  Unless otherwise noted in an Order Form, all Fees are in US dollars and are payable in advance.

   2. Disputed Invoices or Charges.  If the Customer believes Atlas has charged or invoiced the Customer incorrectly, the Customer must contact Atlas no later than 30 days after having been charged by Atlas or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit.  In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

   3. Change to Fees. Unless otherwise set out on an Order Form or Quote provided,If the Customer is on a monthly subscription, Atlas reserves the right to change the Fees and institute new charges at any time during the Term upon providing not less than 30 days prior notice to the Customer.  If the Customer is on an annual subscription, Atlas reserves the right to change the Fees and institute new charges at the commencement of each Renewal Term.

   4. Late Payment.  The Customer may not withhold or setoff any amounts due under this Agreement.  Atlas reserves the right to suspend the Customer’s access to the Atlas SaaS Services and any delivery of Professional Services until all due and undisputed amounts are paid in full.  Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

   5. Taxes.  The Fees do not include applicable sales, use, gross receipts, value-added, personal property or other taxes.  The Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges, including any applicable interest and penalties payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of Atlas.

   6. Suspension.  Any suspension of the Atlas Services by Atlas pursuant to this Agreement will not excuse the Customer from its obligation to make payments under this Agreement.
      
      

7. Confidential Information
   

   1. Definitions.  For the purposes of this Agreement, a Party or its affiliates, customers, employees, licensors or suppliers receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business.  Where the Discloser is the Customer, Confidential Information includes Customer Data, and where the Discloser is Atlas, Confidential Information includes Atlas Property.  Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

   2. Confidentiality Covenants.  The Recipient hereby agrees that during the Term and at all times following the Term it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.  Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

   3. Exceptions to Confidentiality.  Notwithstanding Section 9(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Atlas, to potential assignees, acquirers or successors of Atlas if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Atlas.
      
      

8. Warranty; Disclaimer; Indemnity
   

   1. CUSTOMER WARRANTY.  THE CUSTOMER REPRESENTS AND WARRANTS TO, AND COVENANTS WITH ATLAS THAT THE CUSTOMER DATA WILL ONLY CONTAIN PERSONAL INFORMATION IN RESPECT OF WHICH THE CUSTOMER HAS PROVIDED ALL NOTICES AND DISCLOSURES (INCLUDING TO EACH PERMITTED USER), OBTAINED ALL APPLICABLE THIRD PARTY CONSENTS AND PERMISSIONS AND OTHERWISE HAS ALL AUTHORITY, IN EACH CASE AS REQUIRED BY APPLICABLE LAWS, TO ENABLE ATLAS TO PROVIDE THE ATLAS SAAS SERVICES, INCLUDING WITH RESPECT TO THE COLLECTION, STORAGE, ACCESS, USE, DISCLOSURE, PROCESSING AND TRANSMISSION OF PERSONAL INFORMATION, WHICH MAY INCLUDE TRANSMISSIONS BY OR TO ATLAS AND TO OR FROM ALL APPLICABLE THIRD PARTIES.

   2. GENERAL DISCLAIMER.  ATLAS DOES NOT WARRANT THAT THE ATLAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ATLAS SERVICES.  EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE ATLAS SERVICES (OR ANY PART OF THEM), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY ATLAS TO THE CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.  ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD PARTY.

   3. STATUTORY DISCLAIMER.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, ATLAS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, ATLAS EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO THE CUSTOMER IN CONNECTION WITH THE CUSTOMER’S USE OF THE ATLAS SERVICES (OR ANY PART OF THEM) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY THE CUSTOMER FOR ANY PURPOSE WHATSOEVER.

   4. CUSTOMER INDEMNITY.  THE CUSTOMER WILL DEFEND, INDEMNIFY AND HOLD HARMLESS ATLAS, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS, CONTRACTORS, SUCCESSORS, AND ASSIGNS AGAINST ANY AND ALL THIRD PARTY (INCLUDING PERMITTED USERS) CLAIMS (INCLUDING DAMAGES, RECOVERIES, DEFICIENCIES, INTEREST, PENALTIES AND LEGAL FEES), DIRECTLY OR INDIRECTLY ARISING FROM OR IN CONNECTION WITH: (I) THE CUSTOMER DATA; (II) THE CUSTOMER’S BREACH OF ANY OF THE CUSTOMER’S OBLIGATIONS, REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS AGREEMENT; OR (III) USE OF THE ATLAS SERVICES (OR ANY PART OF THEM) BY THE CUSTOMER OR ANY PERMITTED USER IN COMBINATION WITH ANY THIRD PARTY SOFTWARE, APPLICATION OR SERVICE.  THE CUSTOMER WILL FULLY COOPERATE WITH ATLAS IN THE DEFENSE OF ANY CLAIM DEFENDED BY THE CUSTOMER PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT AND WILL NOT SETTLE ANY SUCH CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF ATLAS.  

   5. Atlas Indemnity.  Atlas will indemnify and defend the Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party claims (including damages, recoveries, deficiencies, interest, penaltiesal fees) directly or indirectly arising from or in connection with any claim by a third party alleging that:  

      1. the Atlas SaaS Services; or

      2. the access to or use by the Customer or any Permitted User of the Atlas SaaS Services as permitted pursuant to this Agreement, infringes, violates or misappropriates any intellectual property right of any person.  The obligations of Atlas in this subsection (e) will not apply to the extent that a claim by a third party is: (i) based on the unauthorized use by the Customer (or any Permitted User) of the Atlas SaaS Services in a manner not permitted by this Agreement, if such claim would not have arisen but for such unauthorized use by the Customer (or its Permitted Users); or (ii) based on the Modification of any deliverables by or on behalf of the Customer in a manner not permitted by this Agreement, if such claim would not have arisen but for such Modification.
         
         

9. Limitation of Liabilities

   The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

   f. AMOUNT.  IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF ATLAS IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER FOR THE ATLAS SERVICES IN THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.  IN NO EVENT WILL ATLAS’ THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

   g. TYPE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ATLAS BE LIABLE TO THE CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
   
   

10. Term and Termination
    

    1. Term.  This Agreement will commence on the Effective Date and continue to be in effect for a period of one year (the “Initial Term”). The Initial Term will automatically renew for an additional one-year period (each, a “Renewal Term” and together with Initial Term, the “Term”) unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the Initial Term or then-current Renewal Term. 

    2. Atlas Termination for Convenience.  Atlas may terminate this Agreement at any time by providing 30 days’ advance written notice to Customer. 

    3. Customer Cancellation Rights. Customer may cancel their subscription to the Atlas SaaS Services at any time by providing at least 30 days’ prior written notice to Atlas (the “Notice Period”). The subscription will remain active during the Notice Period, and cancellation will take effect on the 31st day following the date notice is given (the “Termination Date”). Customer will be responsible for any applicable fees incurred during the Notice Period, but no further charges will apply beyond the Termination Date.

    4. Termination for Cause.  Either Party may, in addition to other relief, terminate this Agreement if the other Party commits a material breach of this Agreement and fails within 30 calendar days after receipt of notice of such breach to correct such material breach.

    5. Survival.  The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(e) (Survival), and Section 13 (General Provisions).
       
       

11. General Provisions
    

    1. Notices.  Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given.  Notices must be sent: (i) if to Atlas, to the following address:

       Atlas Restaurant Management Systems Inc.

       215 Spadina Avenue #400

       Toronto, Ontario

       Attention: Customer Relations

       Email: hello@atlasrms.com 

       and (ii) if to the Customer, to the current postal or email address that Atlas has on file with respect to the Customer.  Atlas may change its contact information by posting the new contact information on the Website or by giving notice of them to the Customer.  The Customer is solely responsible for keeping its contact information on file with Atlas current at all times during the Term.
       
       

    2. Publicity.  Notwithstanding any other term of this Agreement, Atlas may refer to the Customer as a customer of Atlas in announcements, press or marketing releases, publications, presentations, case studies and other public statements and on Atlas’s Website and other online channels (collectively, “Publicity”), without notice to or prior written consent of the Customer.  Atlas may use the Customer’s name, logo and trademark in conjunction with any Publicity and disclose the existence of this Agreement, the Atlas Services provided to the Customer and any testimonials received from the Customer in any such Publicity.  The Customer grants Atlas a limited, perpetual, fully paid-up, irrevocable, non-exclusive, non-transferable, and non-sublicensable license to use its logo and trademarks in connection with any Publicity.

    3. Assignment.  The Customer will not assign this Agreement to any third party without Atlas’ prior written consent.  Atlas may assign this Agreement or any rights under this Agreement to any third party without the Customer’s consent.  This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.

    4. Governing Law and Attornment.  This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflicts of law principles.  The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  This choice of jurisdiction does not prevent Atlas from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

    5. Export Restrictions.  The Customer will comply with all export laws and regulations that may apply to its access to or use of the Atlas SaaS Services.  

    6. Construction.  Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.  The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.  The terms “consent” or “discretion”, means the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.

    7. Force Majeure Event.  Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems, Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in laws preventing or limiting the provision of the services (“Force Majeure Event”).

    8. Severability.  Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

    9. Waiver.  A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

    10. Independent Contractors.  Atlas’ relationship to the Customer is that of an independent contractor, and neither Party is an agent or partner of the other.  Neither Party will have, and neither Party will represent to any third party that it has, any authority to bind the other Party.

    11. Entire Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

    12. Amendments.  SUBJECT TO THE FOLLOWING SENTENCE, NO AMENDMENT, SUPPLEMENT, MODIFICATION, WAIVER, OR TERMINATION OF THIS AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY SPECIFIED IN THIS AGREEMENT, NO CONSENT OR APPROVAL BY ANY PARTY, WILL BE BINDING UNLESS EXECUTED IN WRITING BY THE PARTY OR PARTIES TO BE BOUND.  NOTWITHSTANDING THE PRECEDING SENTENCE, ATLAS MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE.  UNLESS OTHERWISE INDICATED BY ATLAS, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS EARLIER).

    13. English Language.  It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.  C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

ORDER FORM for ATLAS OPERATIONS  

This Order Form forms part of, and is subject to, the Atlas Platform as a Service Terms of Service entered into by Atlas Restaurant Management Systems Inc. and the Customer and available above (the “Agreement”). In the event of any conflict between the Order Form and the Agreement, the Order Form shall prevail only to the extent necessary to resolve such inconsistency. Any capitalized terms below that are not defined herein will have the meanings set out in the Agreement.

1. Description of Atlas SaaS Services:

   Customer will have access to the following module of the Atlas SaaS Services during the Term:
   
   

2. Atlas Operations Services: A commercial platform that brings automation and recommendations to retail and hospitality operators.

   Included Features:

   • Reporting Automation: Automated report generation from the source of data connections available form the Client. These data sources may include reports on sales, cost of labor, cost of goods sold, operations costs, as well as other relevant data reports included in Atlas Operations).

   • Sales Forecasting Automation: The Atlas Platform brings together data from sales, scheduling and reservation systems to generate a forecast for an upcoming day or shift.

   • Recommendations: The Atlas Platform will provide recommendations for adjustments of sales, labor, cogs and purchasing targets based on historical and comparable data of Customer

   • Monthly Planner: Atlas offers a monthly planning flow where users can set up targets for variety of critical key performance indicators.

Subscription Fees:

As per the Quote provided by Atlas to the Customer.

ORDER FORM FOR ATLAS DIRECT TIPS 

This Order Form forms part of, and is subject to, the Atlas Software as a Service Agreement entered into by Atlas Restaurant Management Systems Inc. and the Customer and available above (the “Agreement”).  In the event of any conflict between the Order Form and the Agreement, the Order Form shall prevail only to the extent necessary to resolve such inconsistency.  Any capitalized terms below that are not defined herein will have the meanings set out in the Agreement.

1. Definition

1. “Atlas Float or Customer Account”  means the account established and used to fund and settle Transactions processed by Atlas per this Agreement.

2. “Restricted Transaction” means a transaction contrary to Applicable Laws or a transaction that is not compliant with the use case specified in an Application.
   
   

   2. Atlas Direct Tips Services:

      Atlas  Direct Tips Services keeps track of  tips collected, automates tip division and distribution procedures, and facilitates transactions that move tip amounts in possession of employees.

3.1 Registration

Prior to a Customer being granted access to the Services, Customer is required to submit information on the Atlas as set out in Atlas Banking Onboarding Form. Atlas reserves the right to deny Service at its sole discretion.

1. Financial Regulator Compliance.  Atlas shall not enroll any Customer for the Atlas Services that appears: (i) as a Listed Terrorist Entity, within the meaning of the Canadian Anti-Terrorism Act; or (ii) on the U.S. Department of the Treasury Office of Foreign Asset Control Specially Designated Persons Lists or other similar lists applicable to Canadian or other financial institutions under applicable laws, such as they may be from time to time.

2. Prohibited Businesses.  Customer represents and warrants that it is not and the Services will not be used, directly or indirectly, by, for on behalf of any Prohibited Business and it does not and will not conduct business in or with entities located in countries in contravention of Applicable Laws.

3. Distribution Transaction: Unless otherwise stipulated, will occur weekly as set in the application settings.  
   
   

3.2 Transaction Types:

1. Funding Transaction: Transaction to fund the Atlas Float or Customer Account to maintain the Minimum amount as per the Atlas Banking Onboarding form and the PAD Agreement.

2. Distribution Transaction: Transaction which processes the distribution of tips to each Customer's employees.
   
   

3.3 Timing of Transactions:

1. Funding Transaction: Will occur as needed to maintain the agreed upon Minimum amount in the Atlas Banking Onboarding Form and PAD Agreement.

3.4 Failure or Delay of Transactions.  Atlas will not be liable for any failure to complete or delay in completing any Transaction for any reason, including but not limited to, any of the following

1. The Customer did not submit a request for Transactions;

2. Customer Account does not contain sufficient funds;

3. a debit is rejected or returned by payor’s bank or financial institution;

4. a payee rejects or returns payment to Atlas for any reason;

5. the Atlas Services are unavailable or suffer a delay;

6. Customer has provided Atlas with incorrect information; or

7. any event beyond the control of Atlas.

3.5 Holds on Transaction.  Atlas may, in its sole discretion, place holds on Transactions  to verify Payee’s identity or the legality of a transaction.  Atlas may request, and Customer shall provide, additional information regarding a Transaction before a hold is released.  In addition to holds, Atlas reserves the right to deny or reverse Transactions that are deemed Prohibited Transactions.  Atlas will not be liable for any fees, penalties or late payment interest charged to Customer or any third party as a result of a delay in Transactions that are held, denied or reversed.

3.6 Errors.  Although Atlas will take reasonable commercial efforts to assist Customer in the event of an erroneous Transaction, Atlas does not guarantee that any such erroneous Transactions  can be corrected or reversed and accepts no liability for the inability to cancel a Transaction.  In the event of cancellation, Atlas will use commercially reasonable efforts to return funds as may be recovered directly or from its third party service provider, less any fees incurred by Atlas directly or from its third party service provider.  Customer will be solely responsible for any erroneous Transaction instructions set to Atlas.

3.7 Access to Information.  In the event that  Atlas, Governmental or Regulatory Authority or a sponsor bank requires additional information regarding a Transaction or Customer, Customer shall provide the additional information to Atlas on a timely basis. Customers shall provide the applicable information to Atlas within five (5) Business  days.

3.8 Passwords and Access Credentials. Customer is responsible for keeping passwords and access credentials associated with the Customer’s Account confidential. The Customer will not sell or transfer them to any other person or entity. The Customer will promptly notify Atlas about any unauthorized access to its passwords or access credentials.

3.9 Data Accuracy and Reconciliation

1. Client Responsibility for Data Accuracy

   Customer acknowledges and agrees that it is solely responsible for ensuring the accuracy of all data entered into the Atlas platform, including but not limited to tip amounts, employee details, and payroll-related information. Atlas assumes no responsibility for errors, omissions, or inaccuracies in the data entered by the Customer or its team, including any resulting overpayment or underpayment of tips.
   
   

2. Internal Calculations Using Atlas Tip Division Tool

   Atlas provides the Tip Division tool to automate tip calculations based on the data entered by the Customer. While the tool performs calculations based on predefined rules, Customer is responsible for reviewing payout reports to ensure accuracy before processing payments. If Customer believes there is a discrepancy in the automated calculations, they must notify Atlas immediately. Atlas will use reasonable efforts to review the calculation logic and provide clarification. However, if further adjustments, data reconciliation, or manual report comparisons are required due to incorrect data entry by the Customer, Atlas reserves the right to charge a reconciliation fee of $250 per reconciliation.
   

3. Atlas Responsibility for System or Integration Errors

   If a discrepancy is caused by an issue with an integration built by Atlas or an error in the Atlas system, Atlas will use reasonable efforts to resolve the issue at no additional cost to the Customer. This includes cases where Atlas miscalculates tip distributions due to a system malfunction or an internal platform bug.
   
   

4. Verification of Account Balances (Money In, Money Out, Money Left)

   Atlas will provide standard payout reports reflecting tip distributions and account balances, including total tips collected (money in), amounts paid out to employees (money out), and remaining balances (money left). Customers are responsible for reviewing these reports and ensuring their accuracy before processing payouts. Atlas does not assume responsibility for discrepancies resulting from incorrect data input by the Customer or failure to review reports. If additional reconciliation is required, Atlas may charge a fee of $250 per reconciliation unless the discrepancy is due to a system error caused by Atlas.
   
   

5. Reconciliation Process for External Calculations
   For any tip calculations completed outside of the Atlas Tip Division tool, Customer and its team are solely responsible for identifying discrepancies and determining necessary adjustments. Customer must provide Atlas with the correct adjustment amounts, and Atlas will apply the adjustments accordingly. Atlas will not be responsible for investigating or reconciling discrepancies related to external calculations.

4. Subscription Fees & Utilization Fees:

As per the Quote provided by Atlas to the Customer.