ATOMICORP MASTER END USER LICENSE AGREEMENT
NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE, AND YOU MAY RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, ALREADY PAID UPON SHOWING PROOF OF PAYMENT. "YOU" MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS EULA, THEIR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. "Software" MEANS THE COMPUTER CODE PUBLISHED BY ATOMICORP, INCLUDING THE COMPUTER CODE THAT IS RECEIVED BY YOU IN RELATION TO THIS EULA. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
1.0 GRANT AND USE RIGHTS FOR SOFTWARE.
1.1 License. The Software is licensed, not sold. Subject to the terms of this EULA, Atomicorp hereby grants you a non-exclusive, non-transferable license, without rights to sublicense, to use the object code of the Software for the purpose as set forth in the applicable documentation for the Software and to the extent permitted by your payment of applicable license fees under an Atomicorp approved licensing model and/or your Software License Key subject to the software product specific terms specified in this EULA. Depending upon the model utilized to compute the applicable license fees paid by you to use the Software (whether per physical server, per Virtual server, per user, or any other Atomicorp approved licensing model), an applicable Software License subscription may limit your usage of the Software accordingly. You may use the documentation accompanying the Software in connection with permitted uses of the Software.
1.2 License Limitations. You may not copy the Software except for a reasonable number of machine-readable copies of the Software for backup or archival purposes and except as expressly permitted in this EULA. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks or service marks of Atomicorp. Atomicorp retains all rights not expressly granted to you.
1.3 Restrictions. You may not (i) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Software or the Software License subscription to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Software in whole or in part by, any third party (except Designated Administrative Access) without Atomicorp's prior written consent; or (iii) modify or create derivative works based upon the Software. Except to the extent expressly permitted by applicable law, and to the extent that Atomicorp is not permitted by that applicable law to exclude or limit the following rights, you may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. You may use the Software to conduct internal performance testing and benchmarking studies, the results of which you (and not unauthorized third parties) may publish or publicly disseminate; provided that Atomicorp has reviewed and approved of the methodology, assumptions and other parameters of the study. Please contact Atomicorp at email@example.com to request such review.
1.4 GPL Software. You can redistribute and/or modify the GPL Software under the terms of the GPL. You may obtain a copy of the source code corresponding to the binaries for the GPL Software (the "GPL Source Files") by downloading the GPL Source Files from Atomicorp's Web site at http://www.atomicorp.com/download/, or by sending a request, with your name and address, to Atomicorp at the address specified under the heading "Contact Information" below, in which case Atomicorp will mail a copy of the GPL Source Files to you on a CD or equivalent physical medium is valid Software. This offer to obtain a copy of the GPL Source Files for one year from the date you acquired this product.
1.5 Audit Rights. You will maintain accurate records as to your use of the Software as authorized by this Agreement, for at least two (2) years from the last day on which support and subscription services ("Services") expired for the applicable Software. Atomicorp, or persons designated by Atomicorp, will, at any time during the period when you are obliged to maintain such records, be entitled to inspect such records and your computing devices, in order to verify that the Software is used by you in accordance with the terms of this Agreement and that you have paid the applicable license fees and Services fees for the Software; provided that Atomicorp may conduct no more than one (1) audit in any twelve (12) month period. You shall promptly pay to Atomicorp any underpayments revealed by any such audit. Any such audit will be performed at Atomicorp's expense during normal business hours, provided that you shall promptly reimburse Atomicorp for the cost of such audit and any applicable fees if such audit reveals an underpayment by you of more than five percent (5%) of the amounts payable by you to Atomicorp for the period audited.
2.1 Atomicorp retains all right, title, and interest in and to the Software and the Software License Key and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.
2.2 You agree that you shall not hold out or market to the public the Software (or any portion or derivative thereof) as your own product or service.
2.3 You agree that you shall not use the Software (or any portion or derivative thereof) in your own products or services that compete against the products or services offered by Atomicorp.
3.0 SUPPORT AND SUBSCRIPTION SERVICES
Atomicorp will provide email support services under this EULA. Extended support services may be negotiated with Atomicorp directly. Email support is available between the hours of 9am and 5pm EST.
If you use spam filtering, please ensure that you allow firstname.lastname@example.org to enable us to respond to your support requests. It is your responsibility to ensure that this is allowed. By agreeing to this EULA you are accepting full risk and responsibility for communication from our support organization, and lose any any all rights of rebuke therein.
This EULA does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Atomicorp outside of the Atomic Secured Linux subscription period in the future.
If you have purchased Atomicorp support and subscription services with the Software, these services are provided to you under the Support Contract Terms and Conditions posted on Atomicorp's Web site at http://www.atomicorp.com/support/ and by accepting the terms of this EULA you are accepting these Support Contract Terms and Conditions. Any supplemental software code or related materials that Atomicorp provides to you as part of any support and subscription services are to be considered part of the Software and are subject to the terms and conditions of this EULA. Atomicorp may use any technical information you provide to Atomicorp for any Atomicorp business purposes without restriction, including for product support and development.
Atomicorp will not use information in a form that personally identifies you.
4.1 Termination. Atomicorp may terminate this EULA immediately and without notice if you fail to comply with any term of this EULA.
4.2 Effect of Termination. In the event of termination, you must destroy all copies of the Software. In addition you must remove all copies of the Software, including all backup copies, from all computers and terminals on which it is installed. From time to time, Atomicorp may change the terms of this EULA. Atomicorp will notify you of such change. Your continued use of the Software will indicate your agreement to the change.
5. LIMITED WARRANTY AND LIMITATION OF LIABILITY
5.1 Limited Warranty. Atomicorp warrants that the media, if any, on which the Software is delivered will be free of defects and that the Software will substantially conform to the description contained in the applicable end user documentation in each case for a period of 90 days after the date of activation of the Software subscription.
EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ATOMICORP AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND ATOMICORP AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT.
5.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ATOMICORP AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. ATOMICORP AND ITS LICENSORS' LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED TO YOU UNDER THIS EULA. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER ATOMICORP OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6.1 Entire Agreement. This Agreement sets forth Atomicorp's entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and Atomicorp with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software.
6.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
6.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
6.4 Severability. If any provision of this EULA is found illegal or unenforceable,, the remaining provisions of this EULA will not be affected and will continue to be enforced as if the unenforceable provision was omitted from this EULA.
6.5 Governing Law. This EULA will be governed by law of the Commonwealth of Virginia , without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.
6.6 Government Restrictions. You may not export or re export the Software except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-u.s. government restrictions, if applicable. The Software and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section l2.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this EULA.
6.7 Contact Information. If you have any questions about this EULA, or if you want to contact Atomicorp for any reason, please direct all correspondence to:
15049 Conference Center Drive
Chantilly, VA 20151
or email email@example.com.
6.8 Other. Atomicorp and Atomic Secured Linux are trademarks and/or registered trademarks of Atomicorp, Inc. in the United States and/or various jurisdictions.
6.9 Venue and Jurisdiction. You and Atomicorp agree that any litigation or legal proceeding related to this EULA shall be brought in either the Circuit Court for the City of Alexandria (Virginia) or the United States District Court for the Eastern District of Virginia (Alexandria Division), and all parties hereby agree to the sole and exclusive jurisdiction of these two courts over any matter related to this EULA.
6.10 Attorney's Fees. In the event that Atomicorp substantially prevails in any litigation or legal proceeding related to this EULA, you hereby agree to compensate Atomicorp for any attorney's fees reasonably incurred by Atomicorp in the litigation or legal proceedings.