Please read carefully before using your AtomBeam product.
This Software License Agreement (this “License”) is a legal and enforceable agreement betweenyou (“Licensee”) and AtomBeam Technologies Inc. (“AtomBeam”) for the AtomBeam Softwareaccompanying this License. The “Software” will be deemed to include all Software provided byAtomBeam purchased by Licensee, whether in machine or user readable form, and all subsequentreleases, updates, enhancements or revisions thereof, as well as all patents, copyrights, trademarksand trade secrets relating thereto. The Software is licensed, not sold. By installing, copying orotherwise using the Software or any updates, Licensee agrees to be bound by the terms andconditions of this License.
GRANT OF LICENSE. Licensee is hereby granted a non-exclusive and non-transferable Licenseto use the Software, subject to and only if Licensee accepts and complies with the terms andconditions herein. Title to the Software will remain with AtomBeam. All rights not specificallygranted to Licensee are hereby reserved by AtomBeam.
PERMITTED USES. The Software is owned by AtomBeam and is protected by copyright,trademark and trade secret laws and international treaties. Licensee agrees to use the Software onlyfor Licensee’s internal business purposes. Licensee may make one (1) copy of the Software forback-up, archive or disaster recovery purposes. Licensee may only make copies of the Softwaredocumentation as needed for Licensee for internal uses. Each copy of any part of the Software orits documentation made by Licensee or for Licensee must contain all of AtomBeam’s proprietarymarkings and copyright notices without alteration.
PROHIBITED USES. Licensee agrees not to provide any other person or entity with a copy of,or access to, any part of the Software unless authorized in writing by AtomBeam. Licensee maynot decompile, disassemble, reverse engineer or modify the Software and use of the Software inany way which creates a derivative or modified copy of the Software is an unauthorized use andis specifically prohibited.
LIMITED WARRANTY.(a) AtomBeam represents and warrants that the Software will perform substantially in accordancewith the written materials accompanying the Software under normal use for a period of one (1)year starting from the date when Licensee purchases the Software. If the Software fails to complywith the warranty in this subsection (a) within the warranty period set forth herein, then AtomBeamwill repair or replace, at its discretion, the defective Software. The warranty contained in thissubsection (a) shall not apply to any Software which AtomBeam determines has been subject tomodification other than by AtomBeam or without proper written authorization of AtomBeam orwas used other than in accordance with the system configuration requirements in the customerdocumentation, or in the event the defect is caused by intentional or willful conduct or grossnegligence of Licensee. The remedies set forth above are Licensee’s exclusive remedies forAtomBeam’s breach of the warranty contained in this subsection (a).
(b) AtomBeam warrants that the Software as delivered to Licensee does not infringe any existingpatent, copyright, trademark or trade secret. In the event that Licensee is subject to a suit basedupon a claim that any of the Software, when used in accordance with this Agreement, infringesany third party intellectual property (“Claim“), AtomBeam will indemnify Licensee and holdLicensee harmless against any such Claim provided that Licensee (i) notifies AtomBeam in writingof such Claim or any threats and proceedings related thereto with sufficient time to permitAtomBeam to respond to such Claim or threat, (ii) at AtomBeam’s election, gives AtomBeam orits designee sole control to defend, compromise or settle such Claims (including choice ofcounsel), (iii) does not make any admission of liability nor settle or otherwise compromise anysuch claim without AtomBeam’s prior written consent, and (iv) provides all available information,assistance, authority and participation to the extent commercially reasonable to enable AtomBeamto defend such claim; and, provided further, that the indemnification obligation contained in thissubsection (b) shall not apply if the infringement arose from (i) the combination of the Softwarewith other software not provided by AtomBeam, or (ii) the modification by Licensee of theSoftware. In addition, AtomBeam, if it believes the Software may infringe the rights of thirdparties, at its option and expense, may: (a) obtain for Licensee the rights so that continued use ofthe Software will not be infringing; or (b) replace or modify the Software so that it becomes non-infringing, in which event Licensee shall cease use of the infringing Software. If AtomBeam fails,despite using commercially reasonable efforts, to provide either of the above referenced remedieswithin 60 days then AtomBeam may, as its sole option, terminate the license of the Software andrefund any money paid hereunder by Licensee to AtomBeam for the Software (a percent of theSoftware price, as determined in AtomBeam’s reasonable judgment), so long as the Licenseereturns or destroys the Software and undertakes in writing that it is not in possession of any copyof the Software. The remedies set forth above are Licensee’s exclusive remedies for AtomBeam’sbreach of the warranty contained in this subsection (b).
LIMITATION OF REMEDIES. Licensee accepts any and all risk of any damage or loss causedby the use of the Software and Licensee hereby waives all rights, remedies and causes of actionthat may arise therefrom. IN NO EVENT WILL ATOMBEAM AND/OR THE ORIGINALLICENSOR BE LIABLE FOR ANY SUCH DAMAGES OR LOSSES WHATSOEVERINCLUDING ANY LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE OF THE PRODUCTOR OTHER SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGESARISING OUT OF LICENSEE’S USE OF OR INABILITY TO USE THE PRODUCT EVEN IFATOMBEAM AND/OR THE ORIGINAL LICENSOR HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL ATOMBEAM’SAND/OR THE ORIGINAL LICENSOR’S TOTAL LIABILITY UNDER THIS LICENSEEXCEED THE AMOUNT PAID FOR THE PRODUCT. No action or claim arising out of orrelating to this License may be brought by Licensee more than one (1) year after the cause of actionis first discovered.
TERM. The term of this License is annual or as stated in a separate agreement between Licenseeand AtomBeam, and it will continue in full force and effect as long as the License is renewed andpaid for unless terminated by Licensee or AtomBeam as herein provided. Licensee may terminatethis License at any time by destroying the Software. AtomBeam may terminate this License at any
time upon Licensee’s material breach of this License. Upon termination by AtomBeam, Licenseeagrees to promptly destroy the Software including all copies thereof.
ENTIRE TERMS. This License is made under the laws of The United States of Americaexcluding the conflict of laws provisions. This License is the entire agreement between Licenseeand AtomBeam relating to the Software and supersedes all prior oral or written communications,proposals and representations with respect to the subject matter and prevails over any conflictingor additional terms of any quote, order, or similar communications between Licensee andAtomBeam. If any provision of this License is held invalid, all other provisions will remain validand this License will be enforced to the full extent possible under applicable law. No modificationof this License is binding unless in writing and signed by a duly authorized representative of bothLicensee and AtomBeam.
Last updated: January 31, 2023