Terms of Use

AtmosFX, Inc.Terms of Use

Last Updated: May 15, 2016

Welcome, and thank you for your interest in AtmosFX, Inc. (“AtmosFX,” “we,” or “us”) and our website at www.atmosfx.com, along with our related websites and other Sites provided by us from our websites (collectively, our “Site”). These Terms of Use are a legally binding contract between you and AtmosFX regarding your use of the Site.

PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “CHECKOUT,” OR BY CREATING AN ACCOUNT ON THE SITE OR OTHERWISE USING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE ATMOSFX PRIVACY POLICY (TOGETHER, THE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Site.

These Terms provide that all disputes between you and AtmosFX will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract,  except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 19 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with AtmosFX.

1.  Overview. AtmosFX is a digital decorations company that creates dynamic, professional digital animation and video (“AtmosFX Content”) and accessories for use in display of the AtmosFX Content (the AtmosFX Content and accessories, the “Products”).

    2.  Eligibility. You must be at least 18 years of age to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Site; and (c) your registration and your use of the Site is in compliance with all applicable laws and regulations. If you are using the Site on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.

      3.  Accounts and Registration. To purchase Products from us or to otherwise participate in our community on the Site, you may be required to register for an account. When you register for an account, you will be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@atmosfx.com.

        4.  Limited License and Restrictions; Ownership

        4.1  Use of the Site. Subject to your compliance with these Terms, AtmosFX grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Site to purchase Products and participate in the AtmosFX community.

          4.2  Non-Commercial Use of AtmosFX Content. If you download AtmosFX Content or purchase a DVD containing AtmosFX Content, then, subject to the terms and conditions of these Terms, AtmosFX grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to publicly display the audiovisual works embodied in the AtmosFX Content and publicly perform any musical works embodied in the AtmosFX Content, solely: (a) in your private residence (i.e., not a place of business) for your personal, non-commercial use; or (b) at a place of business where the AtmosFX Content is used at a private event (i.e., not open to the public) for which no admission or other fee is charged. For clarity, if you charge for access to a private residence or other location where AtmosFX Content is being displayed, then you must obtain a Commercial License from us for that location (see Section 3).

            4.3  Commercial Use of AtmosFX Content. Unless: (a) you obtain a Commercial License; or (b) AtmosFX has otherwise granted rights in the AtmosFX Content to you (e.g., under the AtmosFX reseller agreement), you do not have the right to use AtmosFX Content for any commercial or for-profit purpose. If you charge access to a private residence or other location where AtmosFX Content is being displayed and all proceeds from the event will be donated to a tax-exempt organization, then AtmosFX may waive the license fees for a Commercial License. Please see the Commercial License Rules and contact AtmosFX for details. If you obtain a Commercial License for AtmosFX Content, then subject to the terms and conditions of these Terms (including the Commercial License Rules), AtmosFX grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to publicly display the audiovisual works embodied in the AtmosFX Content and publicly perform any musical works embodied in the AtmosFX Content for one year from the date of your purchase of the Commercial License solely in the location identified by you in the purchase process for the Commercial License.

              4.4  Restrictions. All copies of AtmosFX Content are licensed, not sold. Except as otherwise expressly provided in these Terms or as may be expressly permitted by applicable law, you must not directly or indirectly: (a) make any copy of or reproduce AtmosFX Content or Materials (defined below); (b) distribute AtmosFX Content or Materials (including by hosting or electronically transmitting the AtmosFX Content to any third party); (c) modify or make derivative works of the AtmosFX Content or Materials; (d) decompile, disassemble, or reverse engineer any AtmosFX Content or Materials; (e) rent, lease, or sublicense any AtmosFX Content or Materials; or (f) circumvent or disable any technological or security features or measures of the AtmosFX Content or Materials.

                4.5  Ownership; Proprietary Rights. The Site is owned and operated by AtmosFX. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, and all other elements of the Site (“Materials”) are protected by intellectual property and other laws. All Materials included in the Site and all AtmosFX Content are the property of AtmosFX or our third-party licensors. Except as expressly licensed by AtmosFX in writing, you may not make use of the Materials or AtmosFX Content. AtmosFX reserves all rights to the Materials and AtmosFX Content not granted expressly in these Terms.

                  5.  Payment. License fees for non-commercial use of AtmosFX Content and prices for other Products are listed on the applicable Product detail page. Standard Commercial License fees are listed in the Commercial License Rules. Please contact AtmosFX for pricing on volume purchases or custom products. Before you pay any amount, you will have an opportunity to review and accept the amount that you will be charged. All amounts are in U.S. dollars and are non-refundable except as described in our Refund Policy. AtmosFX will charge the payment method you specify at the time of purchase. You authorize AtmosFX to charge all sums as described in these Terms, including any applicable shipping and tax, for the Product you select, to that payment method. AtmosFX may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your transaction.

                  6.  User Content

                  6.1  User Content Generally. Certain features of the Site may permit users to upload content to the Site, including messages, reviews, text, and other types of works (“User Content”) and to publish User Content on the Site. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Site.

                  6.2  Limited License Grant to AtmosFX. By posting or publishing User Content, you grant AtmosFX a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

                  6.3  Limited License Grant to Other Users. By posting or sharing User Content with other users of the Site, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Site.

                  6.4  User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:

                  a.  you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize AtmosFX and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by AtmosFX, the Site, and these Terms; and

                  b.  your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause AtmosFX to violate any law or regulation.

                  6.5  User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. AtmosFX may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Site you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against AtmosFX with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, AtmosFX does not permit copyright-infringing activities on the Site.

                  7.  Digital Millennium Copyright Act

                  7.1  DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet Site providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Site, you may contact our Designated Agent at the following address:

                  AtmosFX, Inc.
                  ATTN: Legal Department (Copyright Notification)
                  7107 Greenwood Avenue North
                  Seattle, WA 98103
                  Email: copyright@atmosfx.com 

                  Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information:

                  a.  an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

                  b.  a description of the copyright-protected work or other intellectual property right that you claim has been infringed;

                  c.  a description of the material that you claim is infringing and where it is located on the Site;

                  d.  your address, telephone number, and email address;

                  e.  a statement by you that you have a good faith belief that the use of those materials on the Site is not authorized by the copyright owner, its agent, or the law; and

                  f.  a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

                  7.2  Repeat Infringers. AtmosFX will promptly terminate without notice the accounts of users that are determined by AtmosFX to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Site at least twice.

                  8.  Prohibited Conduct. BY USING THE SITE YOU AGREE NOT TO:

                  8.1  use the Site or any Product for any illegal purpose or in violation of any local, state, national, or international law;

                  8.2  violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

                  8.3  post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

                  8.4  interfere with security-related features of the Site, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;

                  8.5  interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Site; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site, or violating any regulation, policy, or procedure of any such network, equipment, or server;

                  8.6  perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth;

                  8.7  sell or otherwise transfer the access to the Site granted under these Terms or any right or ability to view, access, or use any Material; or

                  8.8  attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.

                  9.  Third-Party Sites and Linked Websites. AtmosFX may provide tools through the Site that enable you to export information, including User Content, to third party Sites, including through features that allow you to link your account on AtmosFX with an account on the third party Site, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party Site. Third party Sites are not under our control, and we are not responsible for any third party Site’s use of your exported information. The Site may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.

                  10.  Termination of Use; Discontinuation and Modification of the Site. You may terminate your account at any time by contacting customer support at support@atmosfx.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Site. If you violate any provision of these Terms, your permission from us to use the Site will terminate automatically. In addition, AtmosFX may in its sole discretion terminate your user account on the Site or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.

                  11.  Privacy Policy; Additional Terms

                  11.1  Privacy Policy. Please read the AtmosFX Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The AtmosFX Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

                  11.2  Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the “Additional Terms”), such as end-user license agreements for commercial use, refund policies, or rules that applicable to a particular feature or content on the Site, subject to Section 12. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

                  12.  Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. The Terms in effect will be identified as of the most recent date of revision, and will be effective immediately upon being made available, except as follows: (a) if a modification materially alters your rights under these Terms, we will attempt to notify you of the modified Terms directly through a message sent to the email address you have provided to AtmosFX, or through a pop-up window or other notification when you access or use the Site; (b) the materially modified Terms will be effective upon the earlier of your use of the Site with actual knowledge of the changes or thirty days after the changes are made available to you; and (c) no modification to these Terms will apply to any dispute between you and AtmosFX that arose prior to the date of that modification. Your use of the Site after modifications to these Terms become effective constitutes your binding acceptance of those changes. If you are dissatisfied with these Terms or any modifications to these Terms, then your sole and exclusive remedy is to discontinue any use of the Site. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

                  13.  Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site (“Feedback”), then you grant AtmosFX an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free, sublicensable, transferable right to exploit the Feedback in any manner and for any purpose, including to improve Products and the Site, and to create other products and sites.

                  14.  Indemnity. You are responsible for your use of the Site, and you will defend and indemnify AtmosFX and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “AtmosFX Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

                  15.  Disclaimers; No Warranties

                  THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ATMOSFX ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE ATMOSFX ENTITIES DO NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

                  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ATMOSFX ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, YOUR DEALING WITH ANY OTHER SITE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED SITES OR SITES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

                  SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

                  16.  Limitation of Liability

                  IN NO EVENT WILL THE ATMOSFX ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ATMOSFX ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

                  EXCEPT AS PROVIDED IN SECTION 19.4(iii), THE AGGREGATE LIABILITY OF THE ATMOSFX ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO ATMOSFX FOR ACCESS TO AND USE OF THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.

                  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

                  EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

                  17.  Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and AtmosFX agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating any dispute. We operate the Site from our offices in Washington, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.

                  18.  General. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and AtmosFX regarding your use of the Site. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, Sections 2, 4, 4.5, 5, 6, and 7 through 20, along with the Privacy Policy and any other accompanying agreements, will survive.

                  19.  Dispute Resolution and Arbitration

                  19.1  Generally. In the interest of resolving disputes between you and AtmosFX in the most expedient and cost effective manner, you and AtmosFX agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ATMOSFX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

                  19.2  Exceptions. Despite the provisions of Section 1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

                  19.3  Arbitrator. Any arbitration between you and AtmosFX will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AtmosFX.

                  19.4  Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). AtmosFX's address for Notice is: AtmosFX, Inc., 7107 Greenwood Avenue North, Seattle, WA 98103. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or AtmosFX may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or AtmosFX must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, AtmosFX will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by AtmosFX in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

                  19.5  Fees. If you commence arbitration in accordance with these Terms, AtmosFX will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in King County, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse AtmosFX for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

                  19.6  No Class Actions. YOU AND ATMOSFX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AtmosFX agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

                  19.7  Modifications to this Arbitration Provision. If AtmosFX makes any future change to this arbitration provision, other than a change to AtmosFX's address for Notice, you may reject the change by sending us written notice within 30 days of the change to AtmosFX's address for Notice, in which case your account with AtmosFX will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

                  19.8  Enforceability. If Section 6 is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.

                  20.  Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

                  21.  Contact Information. The Site is offered by AtmosFX, Inc. You may contact us by sending correspondence to us at support@atmosfx.com.