NOTICE TO CUSTOMER: PLEASE READ THIS CONTRACT CAREFULLY. THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT GOVERN USE OF THE ATOMIC LABS PRODUCT(S) (DEFINED BELOW) UNLESS YOU AND ATOMIC LABS HAVE EXECUTED A SEPARATE AGREEMENT. BY DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE ATOMIC LABS PRODUCT(S), INCLUDING ANY UPDATE THERETO, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN, NEGOTIATED AGREEMENT SIGNED BY YOU, AGAINST YOU AND ANY LEGAL ENTITY THAT HAS OBTAINED THE ATOMIC LABS PRODUCT(S) OR ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL, DOWNLOAD OR USE THE ATOMIC LABS PRODUCT(S).
This Enterprise Software License Agreement (this “Agreement”) is made by and between Atomic Labs, Inc., a Delaware corporation (“Atomic Labs” or “we” or “us”), with its principal place of business at 812 West Dana Street, Mountain View, CA 94041, and you as the customer. In this Agreement, you, as an individual as well as any legal entity that has obtained the Atomic Labs Product(s) or on whose behalf it is used, will be referred to as the “Customer”, “you” and “your”.)
Atomic Labs is engaged in the business of developing and distributing software known as “Pion”, as well as other software products. You wish to obtain a license to the Atomic Lab Products you are downloading (the “Atomic Labs Product(s)”) that permits you to use such Atomic Labs Product(s) as described in this Agreement. This Agreement describes the terms on which Atomic Labs will provide a license to you, the Customer, to the Atomic Labs Product(s), as well as your rights and obligations with respect to such license and the Atomic Labs Product(s).
1.1. Scope of License. Subject to your compliance with the terms and conditions of this Agreement, Atomic Labs grants to you a limited, personal, worldwide, non-exclusive, non-transferable, revocable license, during the term of this Agreement, to use the Atomic Labs Product(s) that you obtain in conjunction with this Agreement, in accordance with the documentation and instructions supplied by Atomic Labs, for your own internal use. Atomic Labs reserves all rights in the Atomic Labs Product(s) not expressly granted to you in this Agreement.
1.2. License Restrictions. Except as expressly specified in this Agreement, you will not (a) modify the Atomic Labs Product(s); (b) transfer, sublicense, lease, lend, or otherwise distribute to any third party the Atomic Labs Product(s) you obtain hereunder; (c) make the functionality of the Atomic Labs Product(s) available to third parties through any means, including without limitation by uploading the Atomic Labs Product(s) to a network or file-sharing service or through any hosting, application services provider, service bureau or any other type of services; (d) take any action or fail to take any action that is likely to or does expose Atomic Labs’s trade secret or source code information to your subcontractor(s) or any third party; or (e) modify, distribute or combine the Atomic Labs Product(s) with any other software so as to (i) create or purport to create, obligations, limitations, or restrictions on the part of Atomic Labs; or (ii) require or condition the use or distribution of such software or product on, the disclosure, licensing, delivery or distribution of any source code for all or any portion of the Atomic Labs Product(s). You acknowledge and agree that the Atomic Labs Product(s) contain trade secrets of Atomic Labs and its licensors; accordingly, you agree not to disassemble, decompile or otherwise reverse engineer the Atomic Labs Product(s), or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will impose similar restrictions to those contained in this Agreement on any employee or subcontractor to whom you make available the Atomic Labs Product(s) on your behalf.
1.3. Trial License Restrictions. If you are licensing a trial version of the Atomic Labs Product(s), your use shall be limited to testing and evaluation purposes solely on one single processing core server, and not for general production use.
1.4. Ownership; Proprietary Rights. You acknowledge that the Atomic Labs Product(s), any updates thereto and their structure and organization are owned by Atomic Labs and its licensors. Accordingly, and except as expressly allowed under this Agreement, you agree not to remove, alter or obscure in any way any proprietary rights notices (including without limitation copyright notices and messages indicating the code is Atomic Labs property) of Atomic Labs or its suppliers on or within the copies of the Atomic Labs Product(s) furnished to you by Atomic Labs. Notwithstanding the foregoing, Atomic Labs is not obligated to provide you with any updates to the Atomic Labs Product(s). The Atomic Labs Product(s) are licensed, not sold. The Atomic Labs Product(s) are protected by copyright, trademark, trade secret and other proprietary rights of Atomic Labs and its licensors, and you do not acquire any rights, express or implied, in the Atomic Labs Product(s), other than those specified in this Agreement. No title to or ownership of the Atomic Labs Product(s), nor any copyright, trademark, trade secret or other proprietary rights in the Atomic Labs Product(s), are transferred to you under this Agreement.
2.1. You understand that the Atomic Labs Product(s) may (a) contain or be distributed with computer programs that are distributed as part of the Atomic Labs Product(s) and with respect to which the source code is written by persons or entities other than employees of Atomic Labs or contractors under the direction of Atomic Labs, and/or (b) include tools that access, interact with and/or utilize software obtained by Atomic Labs from third parties and that are separate from the Atomic Labs Product(s) (in each case, “Third-Party Software”). (For purposes of this Agreement, the Atomic Labs Product(s) and any Third-Party Software will be referred to as “Software.”) Together with its distribution to you of the Atomic Labs Product(s), Atomic Labs may make some Third-Party Software available to you via download or other distribution. In addition, following your installation of the Atomic Labs Product(s), the Atomic Labs Product(s) may be able to, based on your instruction, connect to the internet and identify additional Third-Party Software for download and installation on your computer on your behalf. This identification and installation process will require you to provide certain information, including information about the Atomic Labs Product(s) installed on your computer, all of which information will be gathered and used by Atomic Labs in accordance with its then-current Privacy Policy.
2.2. Atomic Labs may provide you with a list of the Third-Party Software and notice of the associated Third-Party Software license(s) upon your receipt of the Atomic Labs Product(s); for this information, please refer to the Atomic Labs Product(s) documentation available at http://pion.org. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE AND DISTRIBUTION OF ANY SUCH THIRD- PARTY SOFTWARE IS SUBJECT TO THE TERMS OF THE APPLICABLE THIRD-PARTY SOFTWARE LICENSE(S), AND THAT YOU ARE RESPONSIBLE FOR YOUR COMPLIANCE WITH THE TERMS OF SUCH THIRD-PARTY SOFTWARE LICENSE(S). YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, PRIOR TO USING THE THIRD-PARTY SOFTWARE FOR ANY OTHER PURPOSE, AND IN ANY CASE BEFORE COPYING, MODIFYING, OR DISTRIBUTING ANY THIRD-PARTY SOFTWARE, YOU WILL CONFIRM THAT YOU HAVE ALL NECESSARY RIGHTS AND PERMISSIONS TO DO SO FROM THE APPLICABLE THIRD PARTY LICENSOR (THE “LICENSOR”), WHICH CONFIRMATION MAY INCLUDE OBTAINING A SEPARATE LICENSE FROM SUCH LICENSOR EXPRESSLY AUTHORIZING YOU TO DO SO.
3.1. Definition. “Confidential Information” means: (a) the Atomic Labs Product(s), and any features, results or output produced by, and other information relating to, the Atomic Labs Product(s) (including, without limitation, all Feedback); and (b) any business or technical information of Atomic Labs, including, but not limited to, any information relating to Atomic Labs’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by Atomic Labs as “confidential” or “proprietary” and, if orally disclosed, is reduced to writing by Atomic Labs within thirty (30) days of such disclosure.
3.2. Obligations. You will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement. You will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that you ordinarily use with respect to your own proprietary information of a similar nature and importance. You may disclose Confidential Information only to those of your employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Because of the unique and proprietary nature of the Confidential Information, you understand and agree that Atomic Labs’s remedies at law for your breach of your obligations under this Section may be inadequate and that Atomic Labs will be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance). Nothing stated herein will limit any other remedies provided under this Agreement or available to Atomic Labs at law. Upon expiration or termination of this Agreement for any reason, you will return or destroy all copies of all Atomic Labs Confidential Information in your possession or control.
3.3. Exclusions. Your obligations in Section 3.2 will not apply to information you can document: (i) is generally available to the public other than through breach of this Agreement; (ii) is rightfully known by you at the time of disclosure without any obligation of confidentiality; (iii) is rightfully disclosed to you by a third party without any associated obligation of confidentiality; or (iv) is independently developed by you without use of or reference to any Atomic Labs’s Confidential Information.
4.1. Feedback. In the course of your use of the Atomic Labs Product(s), any comments or feedback you provide to Atomic Labs regarding your use and evaluation of the Atomic Labs Product(s), including any defects found therein and any recommendations for changes or modifications to the Atomic Labs Product(s), will be designated as “Feedback.” Such Feedback will include without limitation any messages, content, materials or other communications posted to http://pion.org or any other website(s) owned or maintained by Atomic Labs. Feedback will also include, without limitation, communications regarding: (1) the nature of your use of the Atomic Labs Product(s), (2) the extent or amount of such use, (3) any errors or difficulties discovered, and (4) the characteristic conditions and symptoms of the errors and difficulties. You acknowledge and agree that (i) Atomic Labs may use, in any manner and for any purpose, the information gained as a result of your use and evaluation of the Atomic Labs Product(s), including without limitation the Feedback; (ii) the Feedback and any corrections, modifications, upgrades or improvements to the Atomic Labs Product(s) based on such Feedback or other input will be owned by Atomic Labs; and (iii) Atomic Labs will have no obligation to correct, upgrade, modify, or otherwise support or maintain the Atomic Labs Product(s) as a result of such Feedback.
4.2. Assignment of Rights. You hereby irrevocably assign and agree to irrevocably assign to Atomic Labs all right, title and interest in and to the Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein. In the event that any such rights (including, by way of example and without limitation, “moral rights,” or other similar rights) cannot be assigned, you hereby agree to waive enforcement worldwide of such rights against Atomic Labs and hereby grant to Atomic Labs an exclusive, fully paid, worldwide, irrevocable, perpetual license, with right to sublicense through multiple tiers of sublicensees, to use, reproduce, create derivative works of, publicly perform, publicly display and distribute in any medium or format, whether now known or later developed, any and all Feedback. At Atomic Labs’s request and expense, you will execute documents and take such further acts as Atomic Labs may reasonably request to assist Atomic Labs to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Feedback.
5.1. NO WARRANTIES. THE ATOMIC LABS PRODUCT(S), ANY UPDATES THERETO, AND ALL THIRD-PARTY SOFTWARE ARE DISTRIBUTED BY ATOMIC LABS ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY PROVIDED BY OR ON BEHALF OF ATOMIC LABS. PLEASE REFER TO THE APPLICABLE THIRD-PARTY SOFTWARE LICENSE FOR ANY WARRANTY THAT MAY BE OFFERED OR DISCLAIMED BY THE LICENSOR OF SUCH SOFTWARE. WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS AS TO ANY SOFTWARE PROVIDED HEREUNDER, AND WE HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT ANY ATOMIC LABS PRODUCT(S) OR ANY THIRD-PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT UNINTERRUPTION OR BE ERROR FREE. Some jurisdictions do not allow the disclaimer of certain warranties, so all or part of the above limitation may not apply to you.
5.2. HIGH-RISK ACTIVITIES. THE ATOMIC LABS PRODUCT(S) ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN CONNECTION WITH HAZARDOUS OR HIGH- RISK ACTIVITIES OR WITH APPLICATIONS THAT REQUIRE FAIL-SAFE PERFORMANCE (TOGETHER, “HIGH-RISK ACTIVITIES”). HIGH-RISK ACTIVITIES INCLUDE BUT ARE NOT LIMITED TO ACTIVITIES OR APPLICATIONS RELATING TO THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, AEROSPACE OPERATIONS, OR DIRECT LIFE SUPPORT MACHINES, AND ANY OTHER ACTIVITIES OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. ACCORDINGLY, WE SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF FITNESS FOR HIGH-RISK ACTIVITIES, AND YOU AGREE THAT ATOMIC LABS WILL HAVE NO LIABILITY OR RESPONSIBILITY RELATING TO YOUR USE OR OPERATION OF THE SOFTWARE IN CONNECTION WITH HIGH-RISK ACTIVITIES.
YOU AGREE TO, SOLELY AT YOUR EXPENSE, INDEMNIFY AND HOLD HARMLESS ATOMIC LABS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS, AND DAMAGES (INCLUDING ALL REASONABLE EXPENSES, COSTS, AND ATTORNEYS’ FEES) THAT RESULT FROM (A) YOUR DIRECT OR INDIRECT INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS CONTAINED IN ANY SOFTWARE; (B) YOUR VIOLATION OF ANY APPLICABLE LAWS; OR (C) YOUR USE OF THE SOFTWARE IN CONNECTION WITH ANY HIGH-RISK ACTIVITIES.
7.1. Term. For trial licenses, the term of this Agreement will be for a period of fourteen (14) days, unless earlier terminated as provided below. For all other licenses, the term of this Agreement shall be perpetual, unless earlier terminated pursuant to the terms of this Section 7.
7.2. Termination. Either party may terminate this Agreement at any time, with or without cause, upon five (5) days’ written notice to the other party. Atomic Labs may terminate this Agreement immediately upon written notice to you in the event that you breach any provision of this Agreement or infringe or otherwise violate Atomic Labs’s Intellectual Property Rights.
7.3. Effect of Termination. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to you under this Agreement will automatically terminate and (b) you will immediately destroy all copies of the Atomic Labs Product(s), together with any and all documentation regarding the Atomic Labs Product(s), any other Confidential Information and any and all copies and extracts of the foregoing.
7.4. Survival. The provisions of Sections 1.2, 1.3, 1.4, 3, 4, 5, 6, 7.3, 7.4, 8, 10, and 12 will survive any termination or expiration of this Agreement.
IN NO EVENT WILL ATOMIC LABS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ATOMIC LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Neither party may issue press releases or endorsements which reference the other party or make any use of the other party’s name, logo or trademark without the prior written consent of the other party.
You agree to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Software, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation. In addition, if all or any portion of the Software is identified as an export controlled item under any Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, and North Korea) and that you are not otherwise prohibited under any Export Laws from receiving or using the Software. If you reside in any part of the European Union or any other jurisdiction in which the transfer of your personal data is regulated, you expressly consent to the transfer of any personal or other data identifying or relating to you or the entity on whose behalf you are accepting this Agreement.
The Atomic Labs Product(s) are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Atomic Labs Product(s) is being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other licensees pursuant to the terms and conditions of this Agreement. Manufacturer is Atomic Labs, Inc.
Except as otherwise set forth herein, notices made by us to you under this Agreement will generally be sent to your registered email address, or posted on the Site. For notices made by you to us under this Agreement you may contact Atomic Labs at the address set forth above or at licenses@atomiclabs.com.
(a) You will not assign, transfer, or sublicense any obligations or benefits under this Agreement without the written consent of Atomic Labs; any attempt to do so, without such consent, will be void and of no effect. This restriction will not apply to any redistribution of software as provided under a separate Third-Party Software license allowing for such redistribution, but solely as to that Third-Party Software.
(b) The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
(c) All notices under this Agreement will be in writing, and will be deemed given when personally delivered or three (3) days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party has provided to the other.
(d) No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
(e) This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of California and the United States without regard to the conflict of law provisions thereof. The United Nation’s Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement. The sole venue for all disputes relating to this Agreement will be in Santa Clara County, California.
(f) This Agreement may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
(g) This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Atomic Labs have executed a separate agreement. This Agreement may be modified, replaced or rescinded only in a writing signed by a duly authorized representative of each party.
(h) In any action to enforce this Agreement the prevailing party will be entitled to reasonable costs and attorneys’ fees. In the event that any of the provisions of this Agreement will be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
(i) The person assenting to the terms and conditions of this Agreement on behalf of Customer is properly authorized and empowered to enter into this Agreement on behalf of Customer.