ATOMPARK SOFTWARE END USER LICENSE AGREEMENT
NOTICE TO USER:
THIS IS A CONTRACT. THIS END USER LICENSE AGREEMENT IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITS ENTIRETY. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY INSTALLING ATOMIC SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE INSTALLATION PROCESS (WHICH MAY BE VIA A CD-ROM OR A WEB-BASED DOWNLOAD) PERMITS YOU TO INSTALL THE CURRENT VERSION OF THE ATOMIC SOFTWARE.
This Electronic End User License Agreement (the "Agreement") is a legal agreement between you (either an individual or an entity), (the "Licensee"), and AtomPark Software Inc. (the "Licensor"), regarding the Atomic software that you about to download, downloaded, or otherwise obtained through Licensor's website(s) or other resources or media including without limitation CD or DVD disks or though a network in object code form via websites, file sharing networks, P2P networks, file archives, FTP servers or other related services, including without limitation (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided (the "Software"), and (b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Licensor (collectively, the "Updates") provided that the Updates shall not include a new subsequent releases of the Software bearing a new first numeral such as 2.0 or 3.0 ("New Releases") but include any minor revisions of the Software version indicated by a change in the decimal numeral, such as 2.3 or 2.4; and (c) related user documentation and associated materials or files provided in written, "online" or electronic form (the "Documentation" and together with the Software, the "Product"). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Licensor, or through any other source. For purposes hereof, "you" means the individual person installing or using the Product on his or her own behalf or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, "you" means the organization for which the Product is downloaded or installed and you represent that you have authorized the person accepting this agreement to do so on your behalf. For purposes hereof the term "organization", without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
For the purposes of this Agreement, "Licensor Site" shall mean the Internet website maintained by or on behalf of Licensor from which the Software is available for download pursuant to a license from Licensor. The Licensor Site is currently located at http://www.atompark.com and http://www.massmailsoftware.com.
By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation ("Operating"), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
BEFORE YOU CLICK ON THE "I AGREE" BUTTON CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE "I AGREE" BUTTON IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE "I AGREE" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "EXIT" BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. Atomic Product will not install on your computer unless or until you accept the terms of this Agreement. You may also receive a copy of this Agreement by contacting the Licensor at: email@example.com.
- Proprietary Rights and Non-Disclosure.
- 1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement. Licensor reserves all rights not expressly granted to you in this Agreement.
- 2. Source Code. You acknowledge that the source code for the Product is proprietary to the Licensor or its suppliers and/or licensors and constitutes trade secrets of the Licensor or its suppliers and/or licensors. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Product in any way.
- 3. Confidential Information. You agree that, unless otherwise specifically provided herein, the Product, including the specific design and structure of individual programs and the Product, constitutes confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, "License Key" shall mean a file or a unique sequence of digit and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information provided however, that you may make and distribute unlimited copies of the Product in object code only as long as each copy that you make and distribute contains this Agreement subject to end user's acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software.
- 4. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.
- Grant of License.
- 1. License. THE LICENSE AND DOCUMENTATION MAY SPECIFY OTHER TERMS, CONDITIONS AND RESTRICTIONS OF OPERATING OF THE PRODUCT. The Licensor grants you the non-exclusive and non-transferable license to store, load, install, execute, and display (to "Use") the specified version of the Software on a specified number of computers, workstations, personal digital assistants, 'smart phones', mobile phones, hand-held devices, or other electronic devices for which the software was designed (each a "Client Device") pursuant to the terms and conditions of this Agreement ("License") and you hereby agree and accept such License as further provide below:
- Personal Use License. If the Product is licensed under Personal Use License as reflected in the terms specified in the applicable invoicing or packaging for the Product you may use one copy of the Product on one (1) Client Device solely for Personal Use. For purposes of this Agreement, "Personal Use" shall mean personal non-commercial use, and not on behalf or for the benefit of any clients and excludes any commercial purposes whatsoever, which include without limitation: advertising marketing and promotional materials/services on behalf of an actual client, employer, employee or for your own benefit, any products that are commercially distributed, whether or not for a fee, any materials or services for sale or for which fees or charges are paid or received.
- Commercial Use License. If the Product is licensed under Commercial Use License as reflected in the License Key and/or invoicing terms specified in the applicable invoicing or packaging for the Product you may use the Product for Personal or Commercial Use (as defined below) in accordance with the Documentation and published functionality of the Product. For purposes hereof, "Commercial Use" shall mean any Operation of the Product for legal business, commercial, or government purpose in accordance with Documentation. One purchased Commercial Use License for the Product entitles you to Operate one copy of the licensed Product on one (1) Client Device provided that if multiple or volume licenses for Product are purchased, the number of the Client Devices and/or the number of permitted users shall be as provided and permitted by invoicing terms and/or applicable License Key.
- Evaluation License. If the Product is licensed under Evaluation License terms as reflected in the License Key and/or invoicing terms specified in the applicable invoicing or packaging for the Product you may use the Product solely for purposes of demonstration and internal testing, examination and evaluation of the Product on one (1) Client Device for the period of thirty (30) days.
- Educational Purpose License; Educational Institution Site License; Governmental and Non-profit License. If the Product is licensed to you under an Educational Purpose License, Educational Institution Site License, Governmental or Non-profit Use License upon the terms specified in the applicable invoicing or packaging for the Product, you may make use of the Product solely for the following purposes, respectively:
Government License and Non-profit License may be granted exclusively at the discretion of the Licensor upon your submission of a written request discussing you and your employer/employees activities, when applicable, and your reasons for and purposes of Operating the Product.
- "Educational Purpose" means that you may make use of the Product solely for non-commercial study or research that is undertaken solely in furtherance of one's education, whether or not completed by a student in pursuit of an educational degree, certificate or diploma and as used by teachers or facilitates teaching of a class, and all administrative staff, faculty and employees, of any college, university, trade school or other school ("Educational Institution"). Under "Educational Institution Site License" Licensee may install and Operate the Product by a number of users determined by the applicable invoicing terms within one Educational Institution in one geographic location. Educational License may be granted exclusively at the discretion of the Licensor upon your submission of a written request discussing you and your employer/employees activities, when applicable, and your reasons for and purposes of Operating the Product.
- "Governmental Purpose" means any non-commercial study or research that is undertaken solely in furtherance of one's duties as a government employee;
- "Non-profit Purpose" means any non-commercial activity or research that is undertaken solely in furtherance of one's duties as part of the non-profit organization purposes narrowly interpreted.
- 2. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Licensor provided that unless the licensing terms provide otherwise, each purchased license entitles you to install and Use the Product on one (1) Client Device. Unless provided otherwise in this Agreement, you may not rent, bundle with other products or materials, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not without Licensor's written consent.
- 3. Updates; Support and Maintenance Services. Licensor will provide you with email Support and Maintenance Services for a period of one (1) year from the purchase date, provided however that you may extend the Support and Maintenance Services, as available, by signing up and paying the appropriate annual subscription and fees to Licensor per applicable terms and conditions set forth on the Licensor's web site http://www.massmailsoftware.com. Among other benefits of Maintenance and Support Services is that, during the term thereof, you may download free Updates to the Product when and as the Licensor publishes them in its website or through other online services. Maintenance and Support terms and conditions are subject to change without notice. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a further Agreement accompanying such Update or modified version of to the Product).
- 4. Term and Termination. The term of this Agreement ("Term") shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder. The Licensor may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Licensor immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product.
- 5. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way.
- 6. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement, without any further notification. The presence of this Section 2.5 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
- 7. Special provisions applicable to Internet marketing Software and Products. The Internet marketing Software and Products are offered and designed by Licensor for legal purposes only. You are granted a non-exclusive license to Use such Products to create and send opt-in e-mail campaigns and newsletters to the lists of recipients that You legally own, or where You obtained the express permission of the e-mail recipient to receive e-mail messages from You. You must obtain the express permission of Web site or Newsgroup owner to collect information from that Web site or Newsgroup. Any illegal use of the Product automatically, without any notice, terminates this Agreement. By agreeing to this Agreement, You affirm that You have the legal right to send e-mail messages to the recipients and collect information from Internet web sites. YOU HEREBY EXPRESSLY AGREE THAT THE PRODUCT AND RESULTS OF E-MAIL CAMPAIGNS AND DATA COLLECTING ARE NOT USED FOR ANY ILLEGAL PURPOSE OR ANY OTHER PURPOSE PROHIBITED BY LICENSOR IN THE DOCUMENTATION, LICENSOR WEB SITE OR THIS AGREEMENT. NOTE THAT ILLEGALLY SENT MESSAGES, COLLECTED DATA AND OTHER INFORMATION MAY CONSTITUTE THEFT OR ANOTHER WRONGFUL ACTION AND MAY RESULT IN YOUR CIVIL AND (OR) CRIMINAL PROSECUTION.
- 1. No Transfers. Under no circumstances you shall sell, loan, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Client Device; and c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product. Notwithstanding the foregoing, you may not transfer education, pre-release, or "not for resale" copies of the Product. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product.
- 2. Prohibitions. Except as otherwise specifically provided for in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Licensor and the Licensor may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Licensor's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product's binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. All rights not expressly granted here are reserved by Licensor and/or its suppliers and licensors, as applicable.
- 3. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above.
- 4. No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto.
- 5. License Key. You may not give, make available, give away, sell or otherwise transfer your registration License Key or any copy thereof to a third party. Product's License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
- 6. Compliance with Law. You agree that in Operating the Product and in using any report or information derived as a result of Operating this Product, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law. Furthermore, in operating the Product, you specifically agree not to engage in any activity, which has been made illegal pursuant to CAN-SPAM Act of 2003, 15 U.S.C. 7701 et seq., including sending and distributing spam e-mails.
- 7. Indemnification. You agree to indemnify, defend and hold harmless Licensor and its respective officers, directors, employees, agents, successors, and assigns from any and all losses, liabilities, damages and claims, and all related expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) and costs related to, arising from, or in connection with any third-party claim related to, arising from, or in connection with the actual or alleged: (i) infringement by Licensee (except when such breach is exclusively attributable to Product) of any third-party intellectual property and/or proprietary right, including, but not limited to, patent, trademark, copyright, trade secret, publicity and/or privacy, (ii) personal injury (including death) or property damage due to the gross negligence or intentional misconduct of Licensee, and/or (iii) breach by Licensee of any of its representations, warranties, obligations, and/or covenants set forth herein.
- 8. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may install on your computer technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Product. The Licensor will not collect any personally identifiable information from your computer during this process.
- NO WARRANTY AND DISCLAIMER.
- 1. Customer Remedies. The Licensor and its suppliers' entire liability and your exclusive remedy for any breach of the foregoing warranty shall be at the Licensor's option: (i) return of the purchase price paid for the license, if any, (ii) replacement of the defective media in which the Product is contained, or (iii) correction of the defects, "bugs" or errors within reasonable period of time. You must return the defective media to the Licensor at your expense with a copy of your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period.
- 2. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
- 3. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- U.S. Government-Restricted Rights.
- 1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", respectively, 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 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- 2. Export Restrictions. You acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
- 1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement is to be performed in the Commonwealth of Virginia and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the federal or state courts in of the Commonwealth of Virginia and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
- 2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
- 3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Licensor and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 6.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
- 4. Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department firstname.lastname@example.org.
© 2016 AtomPark Software Inc. All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.