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.
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 not use Software to create products,
technologies, software applications, web services in whole or
in part, that directly compete with any Atomicorp product or
technology. Competes is defined as creating or distributing
software or services that provide similar or same functionality
as any Software or technology developed by Atomicorp. Atomicorp
reserves the right to revoke all rights and license privileges
of Licensee immediately upon any such infringement. Upon notice
of infringement, Licensee agrees to immediately destroy all
copies of Software and remove Software and references to
Software from all products, technologies and software applications.
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 in advance. Please
contact Atomicorp at support@atomicorp.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. This offer to obtain a copy of the GPL Source Files
is valid for one year from the date you acquired this
Software 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.
2.0 TITLE
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.
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 support@atomicorp.com
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 Workload Protection/Atomic OSSEC 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.
4.0 TERMINATION
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.
6.0 GENERAL
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, it will be enforced to the maximum
extent permissible, and the legality and enforceability of
the other provisions of this EULA will not be affected.
6.5 Governing Law. This EULA will be governed by
Virginia law and the United States of America, without
regard to its choice of law principles. The United Nations
Convention for the International Sale of Goods shall not
apply. Jurisdiction shall exclusively reside in the courts
within Fairfax County, Virginia.
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 12.212(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:
Atomicorp, Inc.,
15049 Conference Center Dr
Chantilly, Virginia 20151
or email support@atomicorp.com.
6.8 Other. Atomicorp and Atomic Workload Protection are trademarks and/or
registered trademarks of Atomicorp, Inc. in the United States and/or
various jurisdictions.
