Load Test Database

TERMS OF USE – LOAD TEST DATABASE
Date Last Modified: September 11, 2014

• The load test database (the “Database”) you are attempting to access through the www.atlasfoundation.com or the db.atlasfoundation.com website (collectively the “Website”) or otherwise is made available by Atlas Foundation Co., LLC, a Minnesota limited liability company (“Atlas”). By entering the required information below and then clicking “ACCEPT” you agree to be bound by these Terms of Use (“Terms of Use”). If you do not agree to these Terms of Use, do not click “ACCEPT” or continue to access and/or use the Database.

  ACCESS TO AND USE OF THE DATABASE AND THE INFORMATION CONTAINED IN OR PROVIDED THROUGH THE DATABASE IS FOR INFORMATION ONLY AND MAY NOT BE RELIED UPON FOR ANY PURPOSE. THE DATABASE IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT, MEASUREMENT OR TESTING.

  Atlas may modify these Terms of Use from time to time, without notice, and any such modifications shall be effective immediately upon posting of the modified version.  If you enter the required information below and then click “ACCEPT” you accept such modified terms.  If you do not agree to such modified terms, do not click “ACCEPT” or continue to access and/or use the Database.

   

  1.     Compliance.  To ensure you are not violating any part of these Terms of Use, Atlas recommends that you always review the current Terms of Use each time you visit the Website and/or before you continue to access or use the Database.   All access to and use of the Database and the information contained in or provided through the Database is subject to these Terms of Use. 

   

  2.     General Use.  The Database is made available, subject to these Terms of Use, to allow professional engineer users to review geotechnical, material, capacity and location data for previously conducted load tests.  Subject to these Terms of Use, and unless otherwise expressly agreed in writing by Atlas, Atlas grants you a limited, non-exclusive, non-transferable (subject to Section 13 below), revocable, non-sublicensable license to access and use the Database solely for those purposes described in this Section 2 and solely for your internal, non-commercial purposes.  Except as otherwise expressly set forth herein, you shall have no other rights related to the Database.  All other rights are reserved and no rights shall be implied.

   

  3.     Prohibited Uses.  In addition to uses otherwise prohibited by Atlas, these Terms of Use or applicable law, you may not, and you may not allow any third party to, do any of the following:

   

• Access or use the Database if you or such third parties are under eighteen (18) years old.  The Database are intended only for use by professional engineers that are eighteen (18) years old or older, and by accessing and/or using the Database you represent and warrant that you meet such age requirements.
• Change or delete any copyright or proprietary notice from the Database or any information or other site accessible through the Database.
• Use or access the Database to send unsolicited commercial email to any person, or to threaten, harm or harass another user, including, but not limited to, attempting to gain access to another user’s personal information.
• Use or access the Database by artificial means or in a manner that, in Atlas’s sole discretion, would inflict an excessive load on Atlas’s or its vendors’ hardware or software.
• Post, upload or transmit:
  • any data, content or materials contained in or provided through the Database outside of the Database, in whole or in part.
  • any data, content or materials of any type that infringes or violates any rights of any party, including, but not limited to, any patent (including any business process patent), copyright, trademark, trade secret or any proprietary or other right of Atlas or a third party.
  • any data, content or materials that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy or otherwise violate the rights of Atlas or a third party, including, but not limited to, any malicious software or computer code (such as a virus).
  • any disabling code (defined as computer code designed to interfere with the normal operation of the Database or Atlas’s or its vendors’ hardware or software) or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Database or Atlas’s or its vendors’ hardware or software.
• Decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) of the Database or any information contained in or provided through the Database (or any portion thereof) or from any other information by any means whatsoever.
• Distribute, disclose, license, rent, lease, use, permit use of, modify, create derivatives of or make available any portion of the Database in any format through any timesharing device, service bureau, network or by any other means, to or by any third party.
• Use or access the Database or any information provided through the Database in violation of federal, state or local law or other applicable rules or regulations.
• Export any part of the Database or any information provided through the Database outside of the United States without Atlas’s prior written consent and in accordance with applicable law.
• Use or access the Database for any benchmarking, monitoring or testing availability or performance, or any other competitive use, including, but not limited to, creating services or software that are substantially similar to the Database.
  
   

• 4.     Obligations.  You acknowledge that Atlas is solely a provider of the Database, only provides load testing data for informational purposes and such data should not be relied upon for any professional determinations.  You understand the risks associated with the access to and use of the Database.  You acknowledge and agree that you are using the Database at your sole risk and that you are personally responsible for verifying its suitability for your needs, including, without limitation, the accuracy and adequacy of any information provided through the Database.  THE DATABASE IS NOT PROVIDED AS A SUBSTITUTE FOR PROFESSIONAL JUDGMENT, MEASUREMENT OR TESTING.  YOU REPRESENT AND WARRANT THAT ALL DECISIONS YOU MAKE ARE BASED ENTIRELY UPON YOUR PROFESSIONAL JUDGMENT, MEASUREMENT AND TESTING, AND GENERALLY ACCEPTED STANDARDS OF PROFESSSIONAL ENGINEERING.    

   

  5.     Ownership.  Although some material in the Database may be the intellectual property of a third party that Atlas has a right to use, you acknowledge that as between you and Atlas, Atlas owns all right, title and interest in, and retains any copyright and other intellectual property rights in and to the Database and all data and information provided on or through the Database by Atlas and its authorized vendors (for the avoidance of doubt, this expressly excludes any and all user-generated content).  You acknowledge that the Database and the data provided through the Database are proprietary to Atlas and are protected by intellectual property and other laws.  You must comply with all copyright, trademark, legal notices and similar restrictions.  If you submit, post or upload any content, business information, ideas, data, concepts or inventions through the Database or to Atlas (by any means), you grant to Atlas a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, sub-licensable (through multiple tiers) license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, such content, business information, ideas, concepts or inventions in any media or medium, or any form, format or forum now known or hereafter developed.  To the extent you are not the lawful owner of such rights, you represent and warrant that you have authority from the owner of such content or intellectual property to grant such rights to Atlas. 

   

  6.     Links.  The Database may contain links to third party websites.  Atlas has no control over and is not responsible for those third party sites or the content provided on or through such sites.  You should review the applicable terms of use and/or privacy policies for such sites before using them.  You hereby accept sole liability for the use of such links to third party websites and you acknowledge and agree that you access those third party sites at your sole risk.  

   

  7.     Disclaimer.  THE DATABASE AND ANY DATA OR INFORMATION CONTAINED IN OR PROVIDED THROUGH THE DATABASE ARE PROVIDED ON AN “AS IS” BASIS.  ACCESS TO THE DATABASE IS VOLUNTARY AND AT YOUR SOLE RISK.  EXCEPT AS SET FORTH IN THESE TERMS OF USE, ATLAS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) WITH REGARD TO THE DATABASE, OR WITH RESPECT TO ANY DATA OR INFORMATION CONTAINED IN OR PROVIDED THROUGH THE DATABASE.  You acknowledge and agree that Atlas AND its employees, MANAGERS, MEMBERS and GOVERNors, and their affiliates, agents, attorneys, representatives, successors and assigns (COLLECTIVELY THE “RELEASED PARTIES”) SHALL NOT BE liable for any PROPERTY DAMAGE OR personal injury, including, BUT NOT LIMITED TO, death, caused by your use or misuse of the DATABASE OR INFORMATION PROVIDED ON OR THROUGH THE DATABASE.

   

  8.     Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ATLAS OR ANY OTHER RELEASED PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, ANY LOSS OF USE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF OR related to these Terms of Use, tHE DATABASE OR INFORMATION PROVIDED ON OR THROUGH THE DATABASE, EVEN IF ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. 

   

  9.     Limitation of Liability.  YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALLATLASAND THE OTHER RELEASED PARTIES BE LIABLE FOR DAMAGES EXCEEDING THE GREATER OF (A) THE FEES YOU PAID AND OWE TO ATLAS FOR THE DATABASE IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES, OR (B) $50.00.  THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. 

   

  10.  Time Limit for Making Claims Against Atlas.  Any claims against Atlas or any other Released Party arising out of or related to these Terms of Use and/or the Database must be brought within one (1) year of the date of the event giving rise to such action occurred.

   

  11.  Acknowledgement Regarding Disclaimers and Limitation of Liability as Fundamental Elements of Your Agreement with Atlas.  YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMER AND LIMITATIONS OF LIABILITY SET FORTH IN THE FOREGOING SECTIONS ARE FUNDAMENTAL ELEMENTS OF THESE TERMS OF USE AND THE DATABASE WOULD NOT BE MADE AVAILABLE TO YOU ABSENT SUCH disclaimer AND LIMITATIONS OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR DISCLAIMERS OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SUCH SECTIONS MAY NOT APPLY TO YOU.

   

  12.  Indemnification.  You shall indemnify, defend and hold Atlas and the other Released Parties harmless from and against all claims, rights, costs (including, but not limited to, reasonable attorney’s fees), liabilities or causes of action brought against such parties arising out of or related to your use of the Database or your breach of these Terms of Use, including, but not limited to, the condition of or injuries caused by or related to any of your or your contractors’ services.

   

  13.  Assignment.  You may not assign or transfer these Terms of Use, or any of your rights or obligations hereunder without the prior written consent of Atlas, and any attempted assignment or transfer without Atlas’s prior written consent shall be null and void.  All of the terms and provisions of these Terms of Use shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns.

   

  14.  Governing Law.  These Terms of Use shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles; provided that to the extent the substantive and procedural laws of the United States would apply to these Terms of Use, they shall supersede the application of Minnesota law.  Subject to Section 15 below, any action arising out of or relating to these Terms of Use shall be brought only in the state or federal courts of Hennepin County, Minnesota, and all parties expressly consent to such court’s jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Use. 

   

  15.  Arbitration & Class Waiver.  If any claim arising out of or related to these Terms of Use and/or the Database cannot be settled by the disputants, the claim shall be resolved pursuant to informal arbitration by an arbitrator selected under the Commercial Arbitration Rules of the American Arbitration Association (as then in effect for expedited proceedings) and located in Hennepin County, Minnesota, and such arbitration shall be conducted in that same location under such rules.  Notwithstanding the foregoing, no disputant shall be required to seek arbitration regarding any cause of action that would entitle such disputant to injunctive relief.  Each of the disputants shall be entitled to present evidence and argument to the arbitrator.  The arbitrator shall permit reasonable pre-hearing discovery of facts, to the extent necessary to establish a claim or a defense to a claim, subject to supervision by the arbitrator.  The determination of the arbitrator shall be conclusive and binding upon the disputants and a court judgment upon the same may be entered in any court having competent jurisdiction thereof.  The arbitrator shall give written notice to the disputants stating the arbitrator’s determination, and shall furnish to each disputant a signed copy of such determination.  Subject to Section 17 below, the expenses of arbitration shall be borne equally by the opposing disputants.  ALL PARTIES EXPRESSLY WAIVE THEIR RIGHTS AND ABILITIES TO MAINTAIN A CLASS ACTION OR SIMILAR PROCEEDING IN ANY FORUM, INCLUDING, BUT NOT LIMITED TO, ARIBTRATION AND COURT, AND ANY AND ALL CLAIMS MAY ONLY BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY AND NOT AS A MEMBER OF ANY PURPORTED CLASS OR SIMILAR PROCEEDING.

   

  16.  Jury Waiver.  THE PARTIES VOLUNTARILY, KNOWINGLY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING WHICH MAY RIGHTFULLY BE BROUGHT IN COURT ARISING OUT OF OR RELATED TO THESE TERMS OF USE AND/OR THE DATABASE, REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL, TORTIOUS OR OTHER CLAIM.  YOU ACKNOWLEDGE THAT YOU UNDERSTAND THE LEGAL EFFECT OF THIS WAIVER.

   

  17.  Costs of Litigation.  To the extent not prohibited by law, you shall be responsible for all charges, fees and expenses (including, without limitation, reasonable attorney’s fees) incurred by Atlas in enforcing or attempting to enforce its rights hereunder, regardless of whether suit is commenced.  In the event applicable law would convert this provision into a bilateral (i.e. “prevailing party”) fee shifting provision, this provision shall be deed severed from these Terms of Use and the remainder of these Terms of Use will remain in full force and effect. 

   

  18.  Suspension, Termination & Cancellation.  Atlas reserves the right, in its sole discretion, to suspend or terminate your access to the Database without notice and for any reason, including, but not limited to, if Atlas believes that you are in violation of any of the provisions of these Terms of Use.    

   

  19.  Force Majeure.  Atlas shall not be responsible for delays or failures of performance resulting from acts beyond the reasonable control of Atlas. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations, fire, communication line failures, power failures, earthquakes and other disasters. 

   

  20.  Miscellaneous.  Section headings are not to be considered part of these Terms of Use.  They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof.  Except as otherwise expressly set forth herein, should any provision of these Terms of Use be held invalid or unenforceable, such invalidity will not invalidate the whole of these Terms of Use, but rather that invalid provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these Terms of Use will remain in full force and effect; provided that if the last sentence of Section 15 above is held invalid or unenforceable in a particular scenario, all of Section 15 above shall be deemed severed from these Terms of Use for such scenario.  You agree to execute and deliver such other documents, instruments and agreements and to take such further action as is reasonably requested by Atlas to consummate or to evidence the consummation of the transactions contemplated herein. These Terms of Use constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to the subject matter hereof.  Nothing in these Terms of Use is intended to confer upon any person other than the parties hereto, and their respective heirs, successors and permitted assigns, any rights or remedies under or by reason of these Terms of Use.  Any and all rights and obligations contained in these Terms of Use which by their nature and/or context are intended to survive termination of these Terms of Use shall so survive, including, but not limited to, the limitation of liability, disclaimer and indemnification.  No breach or right under these Terms of Use may be waived unless in writing signed by the waiving party.  The Database may not be available in all areas and is subject to applicable laws and regulations.  If you are accepting these Terms of Use on behalf of an entity, you represent and warrant that you are an authorized representative of such entity and have the ability to bind such entity to these Terms of Use.  Unless otherwise requested by you in writing, Atlas may publicize your selection to do business with Atlas, including your name, logos and/or marks.

   

  21.  Intellectual Property.  If you find or suspect an intellectual property infringement (e.g. trademark, copyright), please report it to Atlas using the contact information located in Section 22 below and include the below information.  Upon receiving such information, Atlas will investigate the matter.

  ·   Your name, address, telephone number and email address so Atlas may contact you for further information.

  ·   A description of the intellectual property in question.

  ·   A description of where the intellectual property is located in the Database.

  ·   If applicable, a statement by the owner that they believe the intellectual property in question was used without their permission.

   

  22.  Atlas Contact Information.  If you have any questions or comments regarding these Terms of Use or the Database, or if you need to contact Atlas for any reason, Atlas’s contact information is as follows:

   

  Atlas Foundation Co., LLC

                               Attn: Database Administrator

  11730 Brockton Lane North

  Osseo, Minnesota 55369                                  

  info@atlasfoundation.com

  Phone: 763.428.2261