ATLASWARE™ SOFTWARE AND DOCUMENTATION LICENSE
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, CONDITIONS AND PRICING, YOU MAY NOT ACCESS OR USE ATLASWARE, LLC’S SOFTWARE.
BY YOUR CLICKING ON THE BUTTON MARKED “I AGREE” BELOW OR YOUR ACCESS OR USE OF THE SOFTWARE CONTAINING ATLASWARE™ SOFTWARE AND/OR DOCUMENTATION, YOU INDICATE YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE EXCLUSIVE TERMS AND CONDITIONS AND ARE LEGALLY AUTHORIZED TO ENTER INTO THIS LICENSE AGREEMENT AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.
Atlasware, LLC, a Texas limited liability company
(“Atlasware, LLC”), with an office at 1616 San Pedro, San Antonio, Texas 78212-3613 U.S.A., and the Licensee (defined below) hereby agrees that the following terms and conditions shall exclusively govern
the relationship between Atlasware, LLC and the Licensee:
(a) “Agreement” means the terms and conditions of this license agreement as set forth herein.
(b) “Documentation” means the ATLASWARE™ user’s manual and/or other information provided by Atlasware, LLC that relates to the Software (defined below).
(c) “Licensee” means the purchaser or end-user of the Software whose authorized representative agrees to these terms and conditions on behalf of the purchaser or end-user by clicking the “I AGREE” button below. Only an authorized representative of the purchaser or end-user may click the “I AGREE” button below.
(e) “ATLASWARE” is a trademark of Atlasware, LLC.
(f) “Open Source Software” means third party open source software incorporated in the Software or otherwise provided by Atlasware, LLC.
2. SCOPE OF LICENSE
(a) Subject to the provisions of this Agreement, Atlasware LLC grants
to Licensee a non-exclusive non-transferable license to use the Software including any future versions, improvements, updates or enhancements that Atlasware, LLC may supply in the future in its sole discretion, in connection with the Software.
(b) No copies may be made of any Software or Documentation.
(c) Licensee may not: (i) reverse engineer, de-compile, disassemble, or otherwise translate any Software; or (ii) use the Software to prepare other works.
(d) Licensee shall use the Software in accordance with the Documentation and all applicable laws, ordinances, rules and regulations and agrees to defend, indemnify and hold Atlasware, LLC harmless from and against any claim, lawsuit or proceeding and pay all losses, damages, liabilities, costs and reasonable attorney’s fees and expenses as they are incurred arising from or related to the use of the Software by Licensee other than as expressly provided in this Agreement.
(e) In the event the Software are licensed to a United States Department of Defense (“DOD”) agency, the Government’s rights in the Software, Documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015
(Nov. 1995) and subpart DFARS 227.7202-3. Atlasware, LLC provides the Software and Documentation to non-DOD agencies with RESTRICTED RIGHTS and Documentation are provided with LIMITED RIGHTS. Use, duplication, or disclosure by the U.S. Government of the Software and/or Documentation is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 (June 1987).
(f) Licensee shall not disclose the results of any benchmark test of any Software to any third party or publish reviews of the Software without first providing Atlasware, LLC with a full and final copy of such results or review and a reasonable opportunity to respond, not to exceed sixty (60) days from Atlasware, LLC’s receipt.
(g) Licensee grants Atlasware, LLC the right to, with or without notice, monitor Licensee’s Internet-accessible activities for the purpose of verifying Software performance and/or Licensee’s compliance with this Agreement, including, but not limited to, the remote monitoring and verification of Licensee’s implementation and use of the Software.
(h) Licensee affirmatively acknowledges and understands that the Software contains cryptographic software subject to export controls under the United States Export Administration Regulations (“U. S. Regulations”) and that Licensee cannot export or re-export the Software (including any documentation or technical data related thereto) without a license issued by the United States Government. Licensee shall comply with all laws and regulations of the United States of America with regard to the Software and shall secure any export license or other authorization(s) required, including, but not limited to, those applicable to cryptographic products subject to export controls under U. S. Regulations.
3. LICENSEE SOFTWARE SELECTION AND USE RESPONSIBILITIES
Licensee represents and warrants to Atlasware, LLC that Licensee possesses all necessary expertise to properly select, install and/or use the Software or that Licensee has secured the services of a competent professional with respect to the foregoing. Licensee agrees to be responsible for all claims, losses, expenses, fines, penalties, damages, demands, judgments, actions, causes of action, suits and liability caused by Licensee’s improper selection, use, installation or dealings with the Software.
4. CONFIDENTIAL INFORMATION/OWNERSHIP
Licensee acknowledges that the Software contains copyrighted proprietary property of Atlasware, LLC, including, but not limited to, all Software and Documentation. Licensee acknowledges that the Software, including without limitation, the code, algorithms, logic, design, procedures, internal databases, structure, and organization of the Software, and all prior versions of the Software (collectively, “Confidential Information”) constitute and contain valuable trade secrets and confidential business and technical information belonging exclusively to Atlasware, LLC. Licensee agrees to hold the Confidential Information in confidence and to safeguard all Confidential Information with the same degree of care with which it protects its own most valuable confidential information, but in no event less than reasonable care. Licensee further acknowledges that all right, title and ownership interests in the Confidential Information and all prior versions thereof remain exclusively with Atlasware, LLC, and no right (other than the limited right to use the Software granted under this Agreement), title or ownership interest are conveyed to Licensee in this Agreement or otherwise. Atlasware, LLC reserves all rights with respect to the Confidential Information under all applicable laws for the protection thereof, including but not limited to laws relating to trade secrets, copyrights and patents. Licensee shall not assert, directly or by implication, to any person, that it has any ownership interest whatsoever in the Confidential Information. Atlasware, LLC reserves the right to raise prices upon a two week notice to buyers.
5. TECHNICAL SUPPORT
The following provisions will apply when Atlasware, LLC performs technical support (“Technical Support”). The fees for Technical Support will be separately stated. Technical Support shall be available from Atlasware, LLC to Licensee via Atlasware, at 210-923-1234 (9:00 a.m. to 5:00 p.m. Central Time,Monday through Friday, U.S.A., national holidays excepted) for minor problems and technical assistance. Technical Support is also available by e-mail to support@Atlasware.com
. Situations caused by improper use or configuration, untrained Licensee’s personnel, failure to conform to applicable specifications or which are determined to not have been caused by the Software(s) are billable at Atlasware, LLC’s then current support rates.
6. SOFTWARE MAINTENANCE
The following provisions will apply when Atlasware, LLC provides Software maintenance (“Software Maintenance”). The fees for Software Maintenance will be separately stated. Atlasware™ Software Maintenance includes revisions and new releases to the Software but does not include future Software having differing functionality or features. Such future Software will be made available to Licensee in accordance with Atlasware, LLC’s then existing terms, conditions and fees. From time to time The Social Security Administration may change the format of it’s disability file download. Such a change may adversely affect how Atlasware works. Should that happen, Atlasware will endeavor to alter the software to adapt to the change as soon as discovered and practicable. The end user agrees that Atlasware is not liable for work stoppage of the software because of changes made by the Agency.
7. EXCLUSIVE LIMITED WARRANTY AND REMEDY – DISCLAIMER
Atlasware, LLC’s exclusive limited warranty is that the Software, when properly installed and used in accordance with the Documentation, will substantially perform all of the functions described in the specifications for the Software contained in the Documentation. Any download voucher purchased may be returned for a full refund up to thirty days after the purchase of same if the software fails to perform as advertised, with the exception of a Social Security Administration change to the format or availability of the download product in effect at the time of the purchase and Atlasware, LLC fails to fix the problem in a reasonable period of time. A voucher is one client download to be redeemed in the future. In the event Atlasware, LLC breaches this warranty, Licensee’s exclusive remedy shall be, at Atlasware, LLC’s option and expense, (a) to have Atlasware, LLC correct any discrepancy in performance that materially impairs the functionality of the Software which may be corrected via a download, or (b) to have Atlasware, LLC refund the price paid Atlasware, LLC for the Software provided that Licensee notifies Atlasware, LLC, in writing, of the discrepancy within thirty (30) days of the discovery of the discrepancy during the Warranty Period. The express warranties set forth in this Agreement will not apply to discrepancy in the Software caused: (A) through no fault of Atlasware, LLC during the download to Licensee; (ii) by the use of software other than that provided with or installed in the Software; (B) by the use or operation of the Software in an application or environment other than that intended or recommended by Atlasware, LLC; or (C) by modifications, alterations, or repairs made to the Software other than by Atlasware, LLC. Any Open Source Software provided by Atlasware, LLC will be provided pursuant to such Open Source Software license terms and conditions. Atlasware, LLC has the right to replace software provided to Licensee as part of Open Source Software with software that has similar functionality.
With respect to Technical Support, Software Maintenance and other services (collectively, “Services”), Atlasware, LLC’s exclusive warranty is that the Services shall be performed in a workmanlike fashion. In the event Atlasware, LLC breaches this warranty, Licensee’s exclusive remedy shall be, at Atlasware, LLC’s option and expense to have Atlasware, LLC correct such Services.
THE FOREGOING STATES THE EXCLUSIVE LIMITED WARRANTY OF ATLASWARE, LLC. ATLASWARE, LLC EXPRESSLY DISCLAIMS ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, RELIABILITY, AVAILABILITY, SUITABILITY, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. ATLASWARE, LLC DOES NOT MAKE ANY REPRESENTATION OR OTHER WARRANTY WITH RESPECT TO THE SOFTWARE, THE USE THEREOF NOR DOES ATLASWARE, LLC MAKE ANY REPRESENTATION AS TO PRODUCING ANY RESULTS. ALL OPEN SOURCE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL LICENSEE CLAIM, NOR WILL ATLASWARE, LLC BE LIABLE FOR, DAMAGES TO ANY COMPUTER IT IS DOWNLOADED ON, END USER, OR CLIENT OF END USER, UNDER ANY CIRCUMSTANCES, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER INCLUDING FAILURE OF THE SOFTWARE TO CONVERT ANY ONE FILE EXACTLY OR COMPLETELY) EVEN IF EITHER OF THEM HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SHOULD THE AFOREMENTIONED LIMITATION FAIL FOR ANY REASON, THE LIABILITY OF ATLASWARE, LLC SHALL NOT EXCEED THE THE PURCHASE PRICE OF THE PARTICULAR DOWNLOAD VOUCHER OR THE ACTUAL DAMAGES OF THE LICENSEE (WHICHEVER IS LESS WHICH CAUSED THE DAMAGE).
9. TERM AND TERMINATION
The licensed use of the Software shall commence on the date that the Software is downloaded and paid for by Licensee or until this License is terminated. This Agreement will terminate upon the earlier of (a) the date Licensee no longer possesses the Software; or (b) upon Licensee’s breach of any of the provisions of this Agreement. Upon termination of this Agreement, Licensee will immediately cease use of the Software.
Licensee agrees to promptly provide written notice by certified mail return receipt requested to Atlasware, LLC at 13750 San Pedro, Suite 820, San Antonio, Texas 78232, of any suspected breach by Atlasware, LLC of this Agreement, including the specifics of any claim of breach or for damages and to provide Atlasware, LLC with a reasonable opportunity to investigate and cure any curable matter. In order to bring an action against Atlasware, LLC for damages, Licensee must give notice to Atlasware, LLC of any claim for damages within three (3) months of the date the particular voucher is redeemed for a download. No claim of breach of these terms and conditions shall be made by Licensee unless and until all uncontested amounts owed by Licensee have been paid to Atlasware, LLC.
(a) No waiver of rights under this Agreement by Atlasware, LLC shall constitute a subsequent waiver of any other right under this Agreement.
(b) Atlasware, LLC shall not be liable for any delay or failure to perform its obligations due directly to any cause beyond its reasonable control, including, without limitation, lack of cooperation or assistance by Licensee, labor difficulties, fire, accident, act of the public enemy, war, public disturbances, sabotage, transportation delay, shortage of raw material, energy, or machinery, or act of God, government or the judiciary or information or telecommunications systems disruption caused by a third party that materially impairs Atlasware, LLC’s performance hereunder.
(c) The parties agree that any controversy or claim (whether such controversy or claim is based upon or sounds in statute, contract, tort or otherwise) arising out of or relating to this Agreement, any performance or dealings between the parties, or any dispute arising out of the interpretation or application of this Agreement or any dealings between the parties and/or their respective directors, officers, employees or agents, which the parties are not able to resolve, will be settled exclusively by arbitration in San Antonio, Texas U.S.A. by a single arbitrator pursuant to the American Arbitration Association’s Commercial Arbitration Rules, including the Optional Rules for Emergency Measures of Protection, then in effect and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof and such arbitrator will have the authority to grant injunctive relief in a form similar to that which a court of law would otherwise grant. The arbitrator will be mutually chosen from a panel of licensed attorneys familiar with the subject matter of this Agreement having at least fifteen (15) years of professional experience and will be appointed within thirty (30) days of the date the demand for arbitration was sent to the other party. Discovery shall be conducted in accordance with the Federal Rules of Civil Procedure of the United States. If an arbitration proceeding is brought pursuant to this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees, costs and necessary disbursements incurred in addition to any other relief to which such party may be entitled. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the award or to comply with legal or regulatory requirements. Before making any such disclosure, the party intending to make the disclosure shall give the other party written notice of such intention and shall afford the other party a reasonable opportunity to protect its interests, which such period shall not be less than twenty (20) days from the non-disclosing party’s receipt of the aforementioned written notice. The parties expressly agree that this Agreement and any award rendered pursuant to it shall be governed by the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. All proceedings and filings will be in the English language.
(d) If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws during the term hereof, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid, and enforceable provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible.
(e) THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, THE UNIFORM ELECTRONIC TRANSACTIONS ACT, AND ANY STATUTORY ADOPTIONS OR EQUIVALENTS OF THE AFOREMENTIONED ACTS AND CONVENTIONS, AND ANY OTHER LAWS OR REGULATIONS OF ANY STATE OR COUNTRY RELATED TO ELECTRONIC CONTRACTS, ELECTRONIC SIGNATURES, OR ELECTRONIC RECORDS SHALL NOT APPLY TO THE PARTIES OR THIS AGREEMENT.
(f) The parties mutually agree that all matters arising in connection with this Agreement or the enforcement or construction thereof will be governed by (without regard to conflict-of-laws provisions) and resolved in accordance with the Uniform Commercial Code and other laws of the State of Texas and the United States of America with respect to contracts made in and to be performed exclusively within the State of Texas, U.S.A. As part of the bargained for consideration for Atlasware, LLC and Licensee to enter into this Agreement and to agree to the aforementioned choice of law, Atlasware, LLC and Licensee each hereby irrevocably: (i) agrees that any suit, action or other legal proceeding arising out of or relating to this Agreement to enforce the arbitration clause shall be brought in a court of competent jurisdiction in Bexar County, Texas, U.S.A. which court shall have exclusive jurisdiction over any dispute, controversy or claim (whether such dispute, controversy or claim is based upon this Agreement, any statute, contract, tort or otherwise) arising out of or related to this Agreement; (ii) consents to the jurisdiction of such court in any such suit, action or proceeding, and (iii) irrevocably waives any objection which it may have to the laying of venue of any such suit, action or proceeding in such court and waives any claim that any such suit, action or proceeding has been brought in an inconvenient forum. Service of process in any suit, action or proceeding may be made in any manner permitted by applicable law.
(g) This Agreement constitutes the entire agreement between the parties and may only be modified by a written document (not an electronic communication) executed by an authorized officer of Atlasware, LLC. All proposals, negotiations and representations (if any) made prior to this Agreement, with reference to the subject matter of this Agreement, are merged herein. The parties shall not be bound by any oral statement, agreement and/or representation and/or agreement, irrespective of by whom or when made.