ENTERPRISE SOFTWARE LICENSE AGREEMENT
ATOMIC LABS
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. License to the Atomic Labs Product(s); License Restrictions.
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, solely on one single processing core server
for your own internal testing and
evaluation purposes, and not for general production 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. 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. Use of Third-Party Software
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. You Will Not Use nor Disclose Our Confidential Information.
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. Communications and Feedback.
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. DISCLAIMERS
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.
6. INDEMNIFICATION BY YOU.
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. Term, Termination.
7.1. Term. The term of this Agreement will be for a
period of fourteen (14) days, unless sooner terminated as provided
below.
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 1.3, 3, 4, 5, 6, 7.3, 7.4, 8, 10,
and 12 will survive any termination or expiration of this Agreement.
8. OUR LIABILITY IS LIMITED.
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.
9. Publicity.
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.
10. You Will Comply with Export Regulations and other Applicable Laws;
Transfer of Personal Data.
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.
11. U.S. Government Users.
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.
12. Notices.
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.
13. Miscellaneous.
(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.
