The terms and conditions of this End User License Agreement (“EULA”) apply to the use, access, copy, and download, and the license and delivery of the Licensed Materials (as defined below) provided by Atom Power Inc. or any of its subsidiaries or affiliates (“Atom Power”) to the Customer (as defined below) or person using or accessing such Licensed Materials in connection with Atom Power Products (as defined below) on a Customer’s behalf (“You”).

 

ATOM POWER PROVIDES THE LICENSED MATERIALS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THE EULA. BY: (i) ENTERING INTO A COMMERCIAL AGREEMENT WITH ATOM POWER WHICH INCORPORATES THIS EULA BY REFERENCE; (ii) EXECUTING OR SIGNING THIS EULA IN CONNECTION WITH OBTAINING A LICENSE FROM AN AUTHORIZED RESELLER OF ATOM POWER PRODUCTS; (iii) CLICKING THE “ACCEPT” OR “I AGREE” BUTTON; OR (iv) ANY OTHER DEMONSTRATION OF CONSENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, ATOM POWER WILL NOT AND DOES NOT LICENSE THE LICENSED MATERIALS TO YOU AND YOU MUST NOT INSTALL, ACCESS, OR USE THE LICENSED MATERIALS.  BY AGREEING TO THIS EULA (A) YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS ON BEHALF AN ORGANIZATION (FOR INSTANCE, YOUR EMPLOYER), THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TERMS AND AGREE THAT THEY ARE LEGALLY BOUND BY THEM.

 

1.              DEFINITIONS.

 

“Atom Power Platform” means the web-based application provided by Atom Power to manage, monitor, and provide analysis regarding the use and operation of the Products.

 

“Customer” means the party that has licensed the Software under this EULA.

 

“Customer Agreement” means any written agreement between Customer and Atom Power governing the purchase and use of any Products, Software, or other services provided by Atom Power.

 

“Customer Data” refers to information that can be obtained by Atom Power through Customer’s use of the Software, including information about Customer and use patterns and other data derived from the use or performance of the Products, the Software, the Customer’s facilities, and the Customer’s equipment.

 

“Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.

 

“Licensed Materials” means the Software and the User Materials.

 

“Open Source Software” means software or other material that is distributed as “free software,” “open source software” or under similar licensing or distribution terms (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), the Apache License and any license identified as an open source license by the Open Source Initiative (www.opensource.org ).

 

“Product” means any hardware, equipment, products or parts that Atom Power products, developed, marketed sold and delivered to Customer pursuant to a Customer Agreement or purchase order.

 

“Product Software” means the Atom Power Platform and any computer firmware or software that is installed on or embedded within Products, either at the time of initial shipment or through updates and maintenance, including back-up copies of such software, if any, that are delivered with Products that Atom Power delivers or makes available to You, along with any updates, enhancements, upgrades, new versions, maintenance releases and bug fixes thereto that Atom Power may provide from time to time.

 

"Software” means the Atom Power Platform and the Product Software.

 

“User Materials” means any written documentation or instruction manuals regarding the use of the Products and Software provided to Customer by Atom Power.

 

2.                 LICENSE GRANT.

 

2.1.             Software License. Subject to the terms and conditions of this EULA and the Customer Agreement, Atom Power hereby grants You a personal, limited, revocable non-transferrable (except as provided in this Section 2.1), non-sublicenseable, non-exclusive license to install, access and use the Software (in object code form only) in accordance with the applicable User Materials solely in connection with Your use of the Products and services purchased by Customer. You may not transfer or remove the Software, except for Software embedded with any Product with which it is delivered or made available to You. Software may include additional software components governed by Third-Party Licenses (as defined below) applicable to the use of the Software. In case of any conflict between this EULA and such Third-Party License, the Third-Party License will control.

 

2.2.             User Materials License. Atom Power hereby grants You a personal, limited, revocable (solely for breach of this EULA), perpetual, non-transferable (except as provided in this Section 2.2), non-sub-licensable, non-exclusive, license to use the User Materials that Atom Power provides to You, for Your internal business purposes solely in connection with Your use of the Products and services that you purchase from Atom Power. You may not transfer the User Materials, except in connection with the transfer of the Product with which the User Materials were made available to You. You are not authorized to copy or modify User Materials, except as expressly permitted by Atom Power in writing.

 

2.3.             License Restrictions. You will not: (i) use the Licensed Materials beyond the scope of the licenses granted under Section 2.1 and Section 2.2, respectively; (ii) modify, copy, distribute, re-publish, transmit, display, perform, reproduce, publish, reuse, resell, license, create derivative works from the Licensed Materials; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of, or sell the Software; (iv) use the Licensed Materials in violation of any law, regulation, or rule; (v) attempt to gain unauthorized access to other computer systems from or through the Software; (vi) interfere with another person or entity’s use and enjoyment of the Licensed Materials; (vii) upload or transmit viruses or other harmful, disruptive or destructive files to the Software; (viii) disrupt, interfere with, or otherwise harm or violate the security of the Software, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Software; (ix) frame, mirror, sell, resell, rent or lease use of the Software to any other person; (x) access or search the Software (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than Software features provided by Atom Power for use expressly for such purposes; or (xi) permit or encourage any third party to do any of the foregoing.

 

2.4.             Third Party Materials. The Software may include third-party software (including Open Source Software), content, data, or other materials, including related documentation, not owned by Atom Power (“Third-Party Materials”) and that is provided subject to terms and conditions in addition to or different from those contained in this EULA (“Third-Party Licenses”). Your license rights with respect to Third-Party Materials are defined by the applicable Third-Party Licenses, and nothing in this EULA will restrict, limit, or otherwise affect any rights or obligations You may have, or conditions to which You may be subject under such Third-Party Licenses. By using the Software, You are bound by, and Your use of such Third-Party Materials is subject to the terms and conditions of, each applicable Third-Party License. A list of the Open Source Software included in the Software, the applicable license terms, and how to obtain the Open Source Software will be provided to Customer upon written request.

 

2.5.             Feedback. You hereby irrevocably and exclusively assign and agree to assign, convey and transfer to Atom Power all right, title and interest in and to (whether or not now existing) any and all ideas, suggestions, enhancements, recommendations or other feedback (collectively, “Feedback”) provided by You to Atom Power in connection with your use of the Software, including without limitation any and all Intellectual Property Rights therein, which Atom Power may use without restriction[EW3] .

 

2.6.             Passwords and Access Credentials.  Atom Power may use security measures, including user identification and authentication to prevent the unauthorized access and use of the Software. Atom Power shall not be responsible for any unauthorized access or use of the Software on Customer’s account.  Your use of the Software may not exceed any applicable limitations set forth in the Ordering Document (as defined in the Customer Agreement).  You are responsible for keeping Your passwords and access credentials associated with the Software confidential, and You will not sell or transfer them to any other person or entity.  You will promptly notify Atom Power about any unauthorized access or use of Your passwords or access credentials that are used to access the Software. 

 

2.7.             Notwithstanding anything to the contrary in the Customer Agreement or this EULA, Atom Power, in its sole discretion, may temporarily suspend Your access to the Software if: (a) Atom Power determines, in its sole discretion, that (i) there is a threat to the integrity, accessibility, security or other attack on any of the Software; (ii) Your use of the Software or any portion thereof violates the terms of the Customer Agreement or this EULA or otherwise disrupts or poses a security risk to the Software (or to any other customer or vendor of Atom Power); (iii) You are using the Software for fraudulent or illegal activities; (iv) Customer undergoes bankruptcy or similar proceedings; or (v) provision of the Software to Customer or any user is prohibited by applicable law; or (b) any vendor of Atom Power has suspended or terminated access to or use of any Third Party Materials or other services or products required to enable Customer to access the Software (any such suspension described in subclause (a) or (b), a “Suspension”).  So long as Customer maintains an up to date contact email with Atom Power, Atom Power will use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access following any Suspension.  Atom Power will use commercially reasonable efforts to resume providing access as soon as reasonably possible after the event giving rise to the Suspension is cured by Customer.  Atom Power will have no liability for any damage, liabilities, losses (including any loss of profits), or any other consequences that You may incur because of a Suspension.  Atom Power’s right to implement a Suspension does not limit or restrict its other rights in the Agreement, including any termination rights.

 

3.                 OWNERSHIP. All Licensed Materials are licensed, and not sold, to You. Atom Power and its licensors reserves and will retain its entire right, title, and interest in and to the Licensed Materials and all Intellectual Property Rights arising out of, embodied within or relating to the Licensed Materials, except as expressly granted to You in this EULA. You will reasonably cooperate with Atom Power, and will render all reasonable assistance requested by Atom Power, to assist Atom Power in preventing and identifying any use of, or access to, the Licensed Materials, in violation of this EULA.

 

4.                 CHANGES. Atom Power reserves the right, in its sole discretion, to make any changes to the Licensed Materials it deems necessary or useful to: (i) maintain or enhance: (a) the quality or delivery, competitive strength of or market for Atom Power’s Products and services or (b) the Products and services’ cost efficiency or performance; or (ii) comply with applicable law. This EULA will apply to any such changes.

 

5.                 CUSTOMER DATA

5.1.             Ownership of Customer Data. Atom Power will have no claim of ownership to Customer Data, and title and all ownership rights in and to such Customer Data will at all times remain with Customer. You are responsible for obtaining all authorizations, consents, releases, and permissions necessary to provide Customer Data to Atom Power through the Software. You will not submit any Customer Data or use the Software in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any third party or violates any applicable local, state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders. You hereby represent, warrant and covenant that You (or Customer) possesses (and at all times will possess) all rights and consents necessary to upload and submit Customer Data to Atom Power through the Software. Neither Customer Data nor Customer’s use of the Products will: (i) contain or cause to be placed any worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (ii) be materially false, misleading or inaccurate; or (iii) violate any Federal, state or local laws or regulations.

 

5.2.             Use of Data. The Software may collect and use Customer Data and related information, including but not limited to technical information about the Products that is gathered periodically to facilitate the provision of Software updates, Product support, and other services to You (if any) related to the Software and Products. Customer grants Atom Power a worldwide, transferable, assignable, sublicensable (through multiple tiers), fully paid up, and royalty free license to use, reproduce, modify, edit, adapt, publish, sell, translate, create derivative works from, distribute, transmit, display, perform, and license and/or sell the Customer Data for any business purpose. Atom Power will not be obligated to make any payment of any sort to the Customer relating to such use.

 

6.                 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ATOM POWER BE LIABLE  TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES, INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, INADVERTENT DISCLOSURE OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND AND WHETHER OR NOT ATOM POWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF ATOM POWER ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE), SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500.00).  WITHOUT LIMITING THE FOREGOING, ATOM POWER WILL NOT BE LIABLE TO CUSTOMER FOR CLAIMS OR DAMAGES ARISING FROM OR RELATING TO (a) THE CORRUPTION, UNAUTHORIZED DISCLOSURE OR ERASURE OF DATA TRANSMITTED OR RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS; (b) THE LOSS OF DATA OR INABILITY TO ACCESS THE SOFTWARE DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF ATOM POWER, INCLUDING, SUPPLIER PROBLEMS, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS; OR (c) ERRORS, DEFECTS OR NON-CONFORMITIES IN THE SOFTWARE CAUSED BY NETWORKS, COMPUTERS, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT OR OTHER DEVICES OUTSIDE OF ATOM POWER’S CONTROL.

 

7.                 NO WARRANTY. THE LICENSED MATERIALS AND ANY THIRD-PARTY MATERIALS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. ATOM POWER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS OR ANY GUARANTEE OR ASSURANCE THE SOFTWARE WILL BE AVAILABLE FOR USE OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ATOM POWER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF DATA GENERATED BY THE LICENSED MATERIALS. ATOM POWER ASSUMES NEITHER RESPONSIBILITY NOR LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE LICENSED MATERIALS.

 

8.                 INDEMNIFICATION. You will defend indemnify and hold Atom Power, its vendors, and their subsidiaries and affiliates, agents, officers, directors, or other employees and also their partners harmless from any claim, demand, or damage (whether direct, indirect, or consequential), including reasonable attorneys’ fees, made by anyone in connection with Your use of the Licensed Materials, Your violation of this EULA, and any other acts or omissions relating to the same.

 

9.                 TERMINATION; SURVIVAL. Atom Power will have the right to terminate this EULA if You commit a material breach of this EULA and such breach remains uncured thirty (30) days after written notice thereof. Sections 1, 2.3, 3, 4, 5, 6, 7, 8, 9, 10, and 11 will survive the termination this EULA indefinitely.

 

10.              APP STORE TERMS.  The following terms apply in the event You access the Software through a mobile application (an “App”) downloaded from any app store or distribution platform (such as the Apple App Store or Google Play) where such App may now or in the future be made available (each, an “App Provider”).  You acknowledge and agree that: (i) this EULA is concluded between You and Atom Power, and not with the App Provider, and Atom Power (not the App Provider), is solely responsible for the App; (ii) the App Provider has no obligation to furnish any maintenance and support services with respect to the App; (iii) in the event of any failure of the App to conform to any applicable warranty, You may notify the App Provider, and the App Provider will refund the purchase price for the App (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Atom Power; (iv) the App Provider is not responsible for addressing any claims You have or any claims of any third party relating to the App or Your possession and use of the App, including: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (v) in the event of any third party claim that the App or Your possession and use of that App infringes that third party’s Intellectual Property Rights, Atom Power will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, but only to the extent explicitly required by this EULA; (vi) the App Provider, and its subsidiaries, are third-party beneficiaries of this EULA as related to Your license to the App, and that, upon Your acceptance of this EULA, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to Your license of the App against You as a third-party beneficiary thereof; (vii) You represent and warrant that (a) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties; and (viii) You must also comply with all applicable third party terms of service when using the App.

 

11.              MISCELLANEOUS

11.1.          Independent Contractors. The relationship of Atom Power and You is that of independent contractors. Nothing in this EULA will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between the parties. Except as otherwise provided in this EULA, neither party will have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.

 

11.2.          Export and Applicable Law Compliance. This EULA is subject to any export laws, regulations, orders, or other restrictions imposed by the U.S. government (including the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State) or by any other governmental entity on the Products or any related information. You will comply with all laws, rules, and regulations applicable to You and the performance of Your obligations under this EULA including all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITA.

 

11.3.          Choice of law; Jurisdiction. This EULA is to be construed in accordance with and governed exclusively by the internal laws of the State of North Carolina without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of North Carolina to the rights and duties of the parties. Any legal suit, action, or proceeding arising out of or relating to this EULA will be commenced exclusively in a federal court or state court with jurisdiction over Charlotte, North Carolina, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding. EACH OF ATOM POWER AND CUSTOMER HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT.

 

11.4.          Assignment. This EULA may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by You without the prior written consent of Atom Power. Subject to the preceding sentence, the rights and liabilities of the parties hereto will bind, and inure to the benefit of, their respective assignees and successors. Any attempted assignment other than in accordance with this Section 10.4 will be null and void.

 

11.5.          Waiver. The waiver by either party of a breach of or a default under any provision of this EULA will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this EULA, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

 

11.6.          Changes or Modifications to this EULA.  From time to time, we may, in our sole discretion, modify or amend EULA.  We will provide notice to you (either through the Software, via email or posted at www.atompower.com/legal or any successor website) of any such modifications or amendments.  Continued use of the Software after receipt of such notice constitutes your acceptance of the modified or amended EULA.  Notwithstanding the foregoing, if you reasonably believe than any such modifications or amendments will materially impact your use of Software or your rights under this EULA, You may contact us within thirty (30) days of the modifications or amendments taking effect, and Atom Power will cooperate in good faith with you to address your concerns with the modifications or amendments to the EULA.

 

11.7.          Severability. If the application of any provision of this EULA to any particular facts or circumstances is held invalid or unenforceable by a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of the other provisions of this EULA will not in any way be affected or impaired thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

 

11.8.          Force Majeure. Except for the payment of amounts due under this EULA, neither party will be liable for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, pandemics and epidemics, utility or power outages, riots, war, and acts of civil and military authorities; provided, however, that such party gives the other party prompt written notice of the delay or failure and the reason for the delay or failure, and uses its reasonable efforts to limit the resulting delay or failure.

 

11.9.          Notices. Any notice, request, demand, or other communication required or permitted hereunder will be in writing, will reference this EULA and will be deemed to be properly given: (a) when delivered personally; or (b) upon acceptance or rejection if delivered by nationally-recognized overnight courier. All notices will be sent to the address set forth on the cover page of this EULA and to the notice of the person executing this EULA (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section 10.8).

 

11.10.        Counterparts. This EULA (including the exhibits to this EULA, which are incorporated by reference) may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.

 

11.11.        Entire Agreement. This EULA constitutes the entire agreement between the parties with respect to the subject matter of this EULA and supersedes all prior agreements, oral or written, regarding such subject matter. This EULA may not be modified or amended except in writing signed by a duly authorized representative of each party. In the event of any conflict between the provisions of this EULA, a purchase order, and a mutually executed agreement which incorporates this EULA by reference, the following order of precedence will apply (i) the EULA (solely in connection with the Software); (ii) a mutually executed agreement which incorporates this EULA by reference; and (iv) a purchase order (except to the extent to which a purchase order specifically states that it supersedes this EULA by Section number, in which case it shall control to the extent identified).