Terms of Service.

“Agreement” means the Order Form, the GTCs and any of their exhibits, annexes and appendixes

“Affiliate” means, with respect to a person, any other person that controls, is controlled by, or is under Control with such person.

“Amazon API” means the application programming interface(s) made available by Amazon or its Affiliates, which allow software applications to interact with Amazon’s systems, services, or platforms.

“Analytics Information” means any anonymous information, derived from the use of the Service (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support, and/or the Client’s use, of the Service) which is not personally identifiable information and does not identify Client.

“Atomic” means Atomic Growth Spain S.L.

“Atomic IP” means all intellectual property rights, title, and interest in and to the Platform, the SaaS, and any and all materials, data models, algorithms, methodologies, deliverables, documentation, dashboards, reports, and other work product or outputs derived from or generated by the Platform or provided as part of the SaaS, including all enhancements, improvements, and derivative works thereof, are and shall remain the sole and exclusive property of Atomic (or its licensors, as applicable).

“Client” means the person or entity that executes this Agreement with Atomic, as identified in the applicable Order Form.

“Client’s Amazon Seller Central Account” means the Client’s account registered on Amazon’s Seller Central platform

“Client’s Data” means any content, material, data, and information that the Client has provided to Atomic in regard to the Service, including, but not limited to, all data obtained through the Client’s Amazon Seller Central Account, such as product listings, sales and advertising metrics, pricing information, performance analytics or other commercial information. Client Data and its derivatives do not include Atomic’s Confidential Information.

“Confidential Information” means all non-public information disclosed by one Party to the other, in any form, that is marked or reasonably understood to be confidential, including technical, business, financial, and strategic information. The Platform and all related architecture, design, algorithms, and analytics are Atomic’s Confidential Information and trade secrets.

“Control” means the direct or indirect ownership of more than fifty percent (50%) of the share capital, in accordance with Article 42 of the Spanish Commercial Code.

“Effective Date” means the date on which this Agreement is executed by the Parties.

“Feedback” means any feedback (which may consist of questions, comments, suggestions or the like) regarding any of the Services received from the Client by Atomic.

“Fees” means the amounts payable by the Client to Atomic for the Services provided under this Agreement, as specified in the applicable Order Form.

“Group” means all and each of the companies forming part of a company’s group, as determined in accordance with the criteria set out in Article 42 of the Spanish Commercial Code.

“GTCs” means these General Terms and Conditions, which form an integral part of the Agreement.

“Order Form” means the document signed by the Parties.

“Parties” means the Client and Atomic, and “Party” means either one of them.

“Personnel” means the employees, agents, contractors, subcontractors, legal representatives, auditors, or other professional advisors of a Party involved in the performance of this Agreement.

“Platform” means the proprietary SaaS system provided by Atomic, designed to collect and analyze Amazon seller data through the Amazon API and to deliver automated strategic insights and data-driven recommendations to the Client.

“Receiving Party” means the Party that receives Confidential Information from the other Party.

“SaaS” means the software-as-a-service model under which the Platform is made available online by Atomic for use by the Client during the Term.

“Services” means the services provided by Atomic to the Client under this Agreement, including providing the SaaS and access to the Platform.

“Spanish Commercial Code” means Real Decreto de 22 de agosto de 1885, por el que se publica el Código de Comercio.

“Term” means the initial subscription period and, if applicable, any renewal subscription period for the Services, as identified in the Order Form.

“Updates” means bug fixes and/or patches

“Upgrades” means enhancements, new releases, new features, new versions of and other changes to the Services.

Atomic reserves the right to temporarily suspend provision of the Services: (a) if the Client is seven (7) days or more overdue on a payment; (b) if the Client deems such suspension necessary as a result of Customer’s breach under Section 2.2 (Subscription Restrictions); (c) if Atomic reasonably determines suspension is necessary to avoid material harm to the Client or its other customers, including if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of the Client’s control, or (d) as required by law or at the request of governmental entities.

As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, the Client shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as, competes with (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; or (j) take any action that imposes or may impose (as determined in Atomic’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

Atomic will provide the Client with limited, read-only access to the SaaS. The Client acknowledges and understands that: (a) the Platform collects data from the Client’s Amazon Seller Central Account via the Amazon API and processes it using Atomic’s proprietary methodologies to generate strategic recommendations; and (b) neither the Client nor any person acting on its behalf shall have direct access to, or usage rights in, the Platform, and any visibility into Platform outputs does not constitute access to or use of the Platform itself.

The Client acknowledges that: (a) Atomic does not guarantee the accuracy, completeness, or fitness of any outputs or recommendations and shall have no responsibility or liability for the Client’s reliance on them; and (b) the Client will use SaaS-related outputs at its own risk and may not resell or redistribute them.

Other than as set forth in this Agreement, the Client shall receive no license, rights, or interest in the SaaS, the Platform, or its software, architecture, algorithms, or integrations. Moreover, the Client acknowledges that the SaaS are generated automatically by the Platform and are not developed specifically for Client’s use or under Client’s direction, and do not constitute work made for hire.

Unless otherwise agreed, the Services will be performed remotely.

Atomic may modify the Services, provided that Atomic does not materially degrade the core functionality of the Service during the Term. Atomic may from time to time, during the Term, develop Upgrades, which may remotely and automatically upgrade the Service components (including if installed on Client’s premises). For clarity, such Updates and/or Upgrades do not include any generally-available (GA) release of the Service (typically including new features, functionality and/or enhancements) that is subject to the payment of separate fees.

Atomic shall notify the Client, with reasonable prior notice, of any modification to the functionality of the Service in accordance with Section 12.6.

The Client grants Atomic the right to use anonymized and aggregated data derived from the Client’s use of the Services to enhance and improve Atomic’s algorithms, system performance, and Service offerings.

Atomic and its Affiliates shall not disclose, share, or sell the Client’s identifiable data to any third parties without the prior written consent of the Client.

The Parties shall collect and maintain all personal data contained in the Client’s Data in accordance with applicable privacy and data protection laws.

The Parties do not contemplate that Atomic’s provision of access to the Platform or its provision of SaaS will include the processing of personal data or personally identifiable information as defined by applicable data protection or privacy laws. However, if Atomic believes that the SaaS will require or entail such processing, the Parties will execute a data processing agreement (DPA) in Atomic’s standard format as a condition to such processing.

Upon termination or expiration of this Agreement, the Client will have thirty (30) days to request the export of any available Client Data or outputs generated through the SaaS. After this period, Atomic shall securely delete all Client Data from its systems, except where retention is required by applicable law.

The Client shall pay Atomic the Fees specified in the Order Form.

Fees are non-refundable, and are deemed earned upon payment, regardless of whether the Client acts upon Atomic’s recommendations.

Atomic may adjust Fees for future engagement periods, provided such adjustments are communicated to the Client in writing at least thirty (30) days in advance, and shall not apply retroactively to Services already paid.

All payments shall be made in Euros (EUR) by wire transfer (or in the currency set forth in Atomic’s invoice), or other method agreed in writing with Atomic, to the account details designated by Atomic in its invoice.

Invoices shall be issued at the end of each calendar month and shall be due and payable within thirty (30) days of receipt. Any late payments may be subject to interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is less. For the purposes of payment terms, the date of issuance of the invoice shall be considered the date of receipt, unless evidence to the contrary is provided.

If the Client disputes any portion of an invoice, it must notify Atomic in writing within thirty (30) days of the invoice date, providing reasonable details of the dispute. Failure to provide such notice within this period shall constitute acceptance of the invoice. The Client shall timely pay the undisputed portion while the Parties seek in good faith to resolve the disputed amount.

All Fees are exclusive of any applicable taxes, levies, duties, or similar governmental assessments, including but not limited to sales, use, or value-added taxes, except for taxes based solely on Atomic’s net income.

If any withholding or deduction is required by law, the Client shall gross up the payment so that Atomic receives the full amount invoiced.

The Client shall pay all amounts due under this Agreement without set-off, deduction, or withholding of any kind. Atomic shall have no obligation to begin or continue providing the Services if timely payment is not received.

Atomic shall be entitled to reimbursement for any reasonable and documented out-of-pocket expenses incurred in connection with the SaaS, provided such expenses have been approved in writing in advance by the Client.

The Term of this Agreement and its extensions (if any) are specified in the Order Form.

Either Party may terminate this Agreement for convenience upon thirty (30) days’ written notice after six (6) months since the Effective Date, or immediately upon written notice if the other Party (a) materially breaches this Agreement and fails to cure within fifteen (15) days of notice, or (b) becomes insolvent or subject to bankruptcy proceedings.

Termination shall not affect obligations accrued prior to the termination date. Upon termination, Atomic shall cease providing the Services, and Client shall pay all undisputed fees for Services rendered through the termination date, with the understanding that all prepaid Fees are non-refundable.

Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law. For the avoidance of doubt, compliance with statutory and regulatory requirements applicable to the Client’s business and its use of the Services shall be the sole responsibility of the Client.

Except as expressly stated in this Agreement, the SaaS, the Platform, and all related reports, dashboards, and recommendations are provided “as is” and “as available,” without any warranties of any kind, express or implied.

Atomic disclaims all warranties, including merchantability, fitness for a particular purpose, accuracy, non-infringement, or any particular results. Atomic makes no guarantees regarding outcomes such as sales, rankings, or performance, and all recommendations are based on historical data and current models, which are inherently uncertain.

The Client acknowledges it has no access to or control over the Platform, and that outputs are generated from automated analysis of data via the Amazon API.

Subject to Client’s compliance hereunder, Atomic shall indemnify and defend the Client against any finally adjudicated or settled third-party claim that the SaaS or deliverables infringe the intellectual property rights of any third party. This obligation applies only if the Client provides prompt written notice, reasonable cooperation, and allows Atomic to control the defense of any such claim. Atomic shall not settle any claim imposing obligations on the Client without the Client’s prior written consent (not unreasonably withheld). For any infringement claim, Atomic shall at its expense either (a) secure continued use for Client, or (b) modify the SaaS to be non-infringing without loss of core functionality. If neither is feasible, the Client may terminate on thirty (30) days’ notice, and Atomic shall refund fees paid for the infringing SaaS. Atomic shall have no liability for claims arising from (x) unauthorized use, (y) the Client-made or requested changes, or (z) unlawful use. This Section states Atomic’s sole liability for third-party IP claims.

The Client shall indemnify and defend Atomic and its Affiliates against any allegation or claim arising from (i) the Client’s use of the SaaS; or (ii) the Client’s violation of applicable laws or regulations in connection with its use of the SaaS or deliverables.

Except in cases of fraud, gross negligence, willful misconduct, or breaches of confidentiality or intellectual property rights: (a) neither party shall be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages (including loss of profits, revenue, data, or goodwill), even if advised of the possibility of such damages; and (b) each party’s total liability for direct damages shall not exceed the fees actually paid by the Client to Atomic for the Services giving rise to the claim, these limitations apply to the fullest extent permitted by law, regardless of the legal theory.

Subject to the Client’s full compliance with the terms of this Agreement, Atomic grants to the Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to access and use the reports, dashboards, and written deliverables generated by Atomic through the Platform and provided as part of the SaaS, solely for the Client’s internal business purposes and in accordance with the scope set forth in the applicable Statement(s) of Work. The Client shall not, and shall not permit any third party to, directly or indirectly: (a) access or use the Platform except as expressly permitted by this Agreement; (b) copy, modify, distribute, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works from the Platform or any part thereof; or (c) use the Platform or any output of the SaaS to build, improve, or support any product or SaaS that is competitive with Atomic’s offerings. All rights not expressly granted herein are reserved by Atomic and its licensors and no rights or licenses are granted to the Client except as expressly set forth in this Agreement.

As between the Parties, Atomic is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software and intellectual property; and (b) any and all improvements, derivative works, and/or modifications of/to the foregoing, regardless of inventorship or authorship. The Client shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Atomic to ensure and/or provide Atomic the ownership rights set forth in this paragraph. Atomic shall be entitled, from time to time, to modify and replace the features (but not material functionalities, unless it improves the material functionality) and user interface of the Service. Nothing herein constitutes a waiver of Atomic’s intellectual property rights under any law.

The Client agrees to reasonably cooperate with and assist Atomic, at Atomic’s expense, in the protection, enforcement, and defense of Atomic’s intellectual property rights, including by executing such documents and taking such actions as Atomic may reasonably request in connection with the registration, preservation, or enforcement of such rights.

If Atomic receives Feedback, all rights, including intellectual property rights in such Feedback shall belong exclusively to Atomic and such shall be considered Atomic’s Confidential Information.

The Client hereby irrevocably and unconditionally transfers and assigns to Atomic all intellectual property rights it has in such Feedback and waives any and all moral rights that the Client may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Atomic at its sole discretion, and that Atomic in no way shall be obliged to make use of the Feedback.

Analytics Information may be used by Atomic to provide the Service, for compliance with applicable laws, and for development and/or statistical purposes. Analytics Information is Atomic’s exclusive property.

The Receiving Party shall protect Confidential Information with reasonable care, use it only for this Agreement, and disclose it only to Personnel under similar confidentiality obligations and with a need to know. Upon termination, the Receiving Party shall return or destroy Confidential Information, except one archival copy.

The confidentiality obligation shall not apply to information that: (i) at the time of disclosure, the Receiving Party was already in possession of it by lawful means or was legally entitled to access it; (ii) had the prior written consent of the other Party to disclose the Confidential Information; (iii) on the date on which it is communicated by one of the Parties it was public knowledge; (iv) is requested by regulation, or a judicial, administrative or any other, competent authority or (v) upon disclosure to the other Party or at any time thereafter, was available to the public, except as a result of an unauthorised disclosure.

These obligations shall survive for five (5) years since the termination of the Agreement, and indefinitely for trade secrets.

The Parties agree that Atomic is an independent contractor and that this Agreement in no way creates any employee/employer relationship or any partnership, agency, or other joint venture or enterprise, between the Parties and neither Party has the right or authority to bind the other Party to any obligation.

The Client agrees that during the Term and for a period of one (1) year after its expiration or termination, it will not, either directly or indirectly, without the prior written consent of Atomic, solicit, hire, contract with, nor engage the services of, any Personnel.

Except for the Client’s payment obligations, neither Party shall be liable for delays or failure to perform due to events beyond its reasonable control (e.g., natural disasters, war, terrorism, civil unrest). If such an event continues for more than sixty (60) days, the Client may terminate this Agreement.

The Client may not assign this Agreement without Atomic’s prior written consent, except to a non-competitor Affiliate or successor in a merger, acquisition, or divestiture, provided such entity assumes all obligations. Unauthorized assignments are void. This Agreement binds and benefits the Parties and their permitted assigns.

The Client agrees that Atomic may include the Client’s name and logo in its marketing materials and website solely for the purpose of identifying the Client as a customer, unless otherwise agreed in writing.

All notices and communications must be in writing, sent by email to the email addresses specified in the Order Form and are deemed to be received at the moment of sending. A Party may change its notice address by notifying the other Party as specified in this section.

Should any provision of this Agreement or part thereof be held under any circumstances in any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement or other part of such provision.

No failure or delay by either Party to exercise any right, power or privilege provided under this Agreement or by applicable law shall operate as a waiver thereof. Any waiver granted hereunder must be in writing.

The Agreement shall be governed by and construed in accordance with the laws of the Kingdom of Spain, without regard to conflict of law principles. Any dispute arising out of or relating to this Agreement shall be submitted to the exclusive jurisdiction of the competent courts located in Madrid, Spain, and the Parties hereby irrevocably consent to such jurisdiction.

This Agreement, including the data processing agreement (if applicable), and any exhibits attached or referred hereto, represents the entire agreement between the Parties concerning the subject matter hereof, replaces all prior and contemporaneous oral or written understandings and statements, and may be amended only by a written agreement executed by both Parties. Any terms and conditions (whether printed, linked to or otherwise), within any purchase order or related correspondence which that purport to modify or supplement the terms and conditions of this Agreement (or the corresponding Order Form), shall be void and of no effect.

The Agreement may be executed in any number of counterparts and delivered by electronic means (DocuSign or any other specified by Atomic), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument binding upon the Parties.