Subscription License Agreement

Version 1, effective as of June 12, 2017.

THIS IS A LEGAL AGREEMENT. BY CLICKING ON THE “I AGREE” (OR SIMILAR) BUTTON THAT IS PRESENTED TO LICENSEE AT THE TIME OF LICENSEE’S PURCHASE, OR BY DOWNLOADING, INSTALLING, COPYING, SAVING ON LICENSEE’S COMPUTER, OR OTHERWISE USING ATOMI SOFTWARE, SERVICES OR PRODUCTS LICENSEE IS BECOMING A PARTY TO THIS AGREEMENT AND LICENSEE IS CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH BELOW.

Note: In case the terms of this Agreement are conflict with the terms of any agreement individually negotiated and agreed between ATOMI and Licensee, the terms of the latter shall prevail.

1. PARTIES

1.1. “ATOMI” or “We” means ATOMI SYSTEMS, INC., a software company organized and operated under the laws of Vietnam.

1.2. “Licensee” means the individual, sole proprietor or legal entity specified in the Subscription Confirmation. For legal entities, “Licensee” includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, “control” means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.

2. DEFINITIONS

2.1. “Agreement” means this Subscription License Agreement.

2.2. “Product” means Saola Animate or any other software provided by ATOMI under this Agreement.

2.3. “User” means the individual Licensee or any employee, independent contractor or other temporary worker authorized by Licensee to use Software while performing duties within the scope of their employment or assignment.

2.4. “Client” means a computer device used by User for running Product.

2.5. “Product Version” means a release, update, or upgrade of a particular Product that is not identified by ATOMI as being made for the purpose of fixing software bugs.

2.5. “Bug Fix Update” for a particular Product Version means a software update or release that is specifically identified by ATOMI as a bug fix for that Product Version.

2.6. “ATOMI Account” means an account at https://app.atomisystems.com created by Licensee or a single User, having a unique name and password, and enabling User management and Product Subscription administration and/or access to Products in accordance with a Product Subscription.

2.7. “Subscription Confirmation” means an email confirming Licensee’s rights to access and use Products, including Product Subscription plans and number of licenses acquired.

2.8. “Product Subscription” specifies the subscription term, the set of Products covered by this Agreement, subscription fees and payment schedules.

3. GRANT OF LICENSE

3.1. The Product is licensed on a per-seat basis. If Licensee complies with terms of this Agreement, Licensee has the rights identified below in this section for each Product Subscription that Licensee acquires.

3.2. Unless the Product Subscription is expired or this Agreement is terminated in accordance with Section 12, and subject to the terms and conditions specified herein, ATOMI grants Licensee a limited, world-wide, non-exclusive, and non-transferable license to use each Product covered by Product Subscription as follows:

(A) Licensee may:

(i) Install and use any version of the Product covered by Product Subscription on any number of Clients and on any operating system supported by the Product;

(ii) Make reasonable number of backup copies of the Product solely for archival purposes.

(B) Licensee may not:

(i) Allow the same Product Subscription to be used concurrently by more than one (1) User.

(ii) Rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, or transfer the Product, or provide access to the Product or Licensee’s ATOMI Account to a third party;

(iii) Reverse-engineer, decompile, disassemble the Product, unless it is strictly for personal use or to debug such modifications;

(iv) Remove or obscure any proprietary or other notices contained in the Product.

3.3. Products are made available on a limited license or access basis, and no ownership right is conveyed to Licensee, irrespective of the use of terms such as “purchase” or “sale”. ATOMI has and retains all rights, titles, and interests, including all intellectual property rights, in and to the Products, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for ATOMI, including without limitation as they may incorporate Feedback (as defined below).

4. ACCESS TO PRODUCTS

4.1. All deliveries under this Agreement will be electronic. Licensee and its Users must have an Internet connection in order to access ATOMI Account and receive any deliveries. For the avoidance of any doubt, Licensee is responsible for downloading and installing Products. ATOMI will make Products available to Licensee for download on ATOMI’ website at https://atomisystems.com.

4.2. Licensee and its Users may use ATOMI Account in accordance with its documentation. Licensee and its Users are solely responsible for the accuracy of any information provided via and any action taken through ATOMI Account.

4.3. Licensee may enable Users to access Products by sending an invitation from Licensee’s ATOMI Account to a User ATOMI Account. Licensee acknowledges that Product will periodically connect from a User Client to ATOMI’s servers via the Internet to confirm User’s right to use Product or to check for Product updates;

5. FEES

Licensee must pay Product Subscription fees in accordance with the ATOMI Terms of Purchase. If Licensee fails to make the timely payment of Product Subscription fees, this Agreement will be terminated and Licensee may not use Products.

6. FEEDBACK

Licensee has no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if Licensee or Users submit Feedback to us, then Licensee grants us a nonexclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.

7. THIRD-PARTY SOFTWARE

7.1. The Products include code and libraries licensed to us by third parties, including open source software (“Third-Party Software”). The list of Third-Party Software included in each Product is available in Product documentation. All Third-Party Software is licensed to Licensee under the terms of their respective licenses located in the Product documentation.

7.2. ATOMI PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY SOFTWARE AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

8. PRODUCT SUBSCRIPTION TRIAL

8.1. Subject to the terms of this Agreement, Licensee is granted a one-time right to install and use Product for evaluation purposes without charge for a period of thirty (30) days from the date of the Product installation, unless otherwise specified (“Evaluation Period”). Licensee’s use of Product during Evaluation Period shall be limited to the internal evaluation of Product for the sole purpose of determining whether Product meets Licensee’s requirements and whether Licensee desires to continue using Product.

8.2. Licensee may withdraw from using Product at Licensee’s sole discretion any time before expiration of Evaluation Period. Upon expiration of Evaluation Period, Licensee’s right to continue to use Product will terminate, unless Licensee purchases a Product Subscription to the Product. The Product may contain a feature that will automatically disable the Product upon expiration of Evaluation Period.

9. LIMITED WARRANTY

All products are provided to licensee on an “as is” and “as available” basis without warranties. Use of the products is at your own risk. ATOMI makes no warranty as to its use or performance. To the maximum extent permitted by applicable law, ATOMI, and its suppliers and resellers, disclaim all other warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, with regard to the products, and the provision of or failure to provide support services. This limited warranty gives licensee specific legal rights. Licensee may have other rights, which vary from state/jurisdiction to state/jurisdiction. ATOMI (and its affiliates, agents, directors, and employees) does not warrant that the products are accurate, reliable, or correct; that the products will meet your requirements; that the products will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the products are free of viruses or other harmful components. Any content or data downloaded or otherwise obtained through the use of the products are downloaded at your own risk and you will be solely responsible for any damage to your property or loss of data that results from such download.

10. DISCLAIMER OF DAMAGES

10.1. To the maximum extent permitted by applicable law, in no event will ATOMI (or its affiliates, agents, directors, or employees), or ATOMI’s licensors, suppliers or resellers be liable to licensee or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; (b) any loss or damages in connection with termination or suspension of licensee’s access to our products in accordance with this agreement, and (c) any special, incidental, indirect, consequential, exemplary or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, strict liability, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with licensee’s use of or access to the services or products. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

10.2. Our total liability in any matter arising out of or related to this agreement is limited to fifty (50) US Dollars. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.

11. TERM AND TERMINATION

11.1. The term of this Agreement will commence upon acceptance of this Agreement by Licensee as set forth in the preamble above, and will continue for each Product through the end of the applicable subscription period specified in the respective Subscription Confirmation. This Agreement will automatically renew with respect to each Product for a successive Product Subscription term, unless terminated as set forth herein.

11.2. Licensee may terminate this Agreement at any time by cancelling a subscription via ATOMI Account. If such termination occurs during a then-current subscription period, this Agreement will continue to be effective until the end of that subscription period. Such termination does not relieve Licensee of the obligation to pay any outstanding subscription fees owed to ATOMI, and no credits or refunds will be issued to Licensee for prepaid subscription fees (except as specified in ATOMI Terms of Purchase, if applicable).

11.3. ATOMI may terminate this agreement if:

(A) Licensee has materially breached this Agreement and fails to cure such breach within thirty (30) days of written notice thereof;

(B) Licensee fails to make the timely payment of subscription fees;

(C) ATOMI is required to do so by law (for example, where the provision of the ATOMI Product to Licensee is, or becomes, unlawful); or

(D) ATOMI elects to discontinue to provide ATOMI Product, in whole or in part.

11.4. ATOMI will make reasonable efforts to notify Licensee via email as follows:

(A) Thirty (30) days prior to termination of the Agreement in the events specified in Clauses 11.3(C) and 11.3(D) above, and in such events, Licensee will be entitled to refund of unused portion of prepaid subscription fees, if applicable;

(B) Three (3) days prior to termination of the Agreement in the event specified in Clause 11.3(B), and in such event Licensee will not be entitled to any refund of unused portion of prepaid subscription fees.

12. TEMPORARY SUSPENSION FOR NON-PAYMENT

12.1. ATOMI reserves the right to suspend Licensee’s access to ATOMI’s Products in the event that Licensee fails to make payment for its subscription.

12.2. If ATOMI suspends Licensee’s access to ATOMI’s Products for non-payment according to the provision 13.1., Licensee must pay all past due amounts in order to restore its access to ATOMI’s Products.

13. EXPORT REGULATIONS

Licensee shall comply with all applicable laws and regulations with regards to: economic sanctions; export controls; import regulations; and trade embargoes (“Sanctions”), including those of the European Union and United States (specifically the Export Administration Regulations (EAR)). Licensee acknowledges that it is not a person targeted by Sanctions nor is it otherwise owned or controlled by or acting on behalf of any person targeted by Sanctions. Further, Licensee acknowledges that it will not download or otherwise export or re-export ATOMI Products or any related technical data directly or indirectly to any person targeted by Sanctions or download or otherwise use ATOMI Products for any end-use prohibited or restricted by Sanctions.

14. MARKETING

Licensee agrees to be identified as a customer of ATOMI and that ATOMI may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee’s business in ATOMI marketing materials, on the ATOMI website, in public or legal documents. Licensee hereby grants ATOMI a license to use Licensee’s name and any of Licensee’s trade names and trademarks solely pursuant to this marketing section.

15. GENERAL

15.1. Entire Agreement. This Agreement, including the Third-Party Software license terms, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior agreements between Licensee and ATOMI regarding Licensee’s use of any ATOMI software covered by ATOMI Products. No purchase order, other ordering document or any handwritten or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and ATOMI.

15.2. Reservation of Rights. ATOMI reserves the right at any time to cease the support of ATOMI Products and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability, or other characteristics of ATOMI Products.

15.3. Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Licensee’s rights, we will use reasonable efforts to notify Licensee (by, for example, sending an email to the billing or technical contact provided by Licensee to us, posted on our website or blog, through ATOMI Account, or via the Product itself). If we modify the Agreement, the modified version of the Agreement will be effective upon the next Product Subscription term. In this case, if Licensee objects to the updated Agreement terms, as Licensee’s exclusive remedy, Licensee may cancel Product Subscription. Licensee may be required to click through the updated Agreement to show the acceptance. For the avoidance of doubt, any Subscription Confirmation is subject to the version of the Agreement in effect on the Subscription Confirmation date.

15.4. Opportunity to Review. Licensee hereby declares that Licensee has had sufficient opportunity to review this Agreement, understand the content of all of its clauses, negotiate its terms, and seek independent professional legal advice in that respect before entering into it. Consequently, any statutory “form contracts” (“adhesion contracts”) regulations shall not be applicable to this Agreement.

15.5. Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.

15.6. Headings. Headings and titles are for convenience only and do not affect the interpretation of this Agreement.

15.7. No Waiver. Our failure to enforce or exercise any of this Agreement is not a waiver of that section.

15.8. Notice. ATOMI may deliver any notice to Licensee via electronic mail to an email address provided by Licensee, ATOMI Account, registered mail, personal delivery, or renowned express courier (such as DHL, Fedex or UPS). Any such notice will be deemed to be effective (i) on the day the notice is sent to Licensee via email, (ii) upon being uploaded to ATOMI Account (irrespective of when Licensee actually receives it), (iii) upon personal delivery, (iv) one (1) day after deposit by express courier, (v) or five (5) days after deposit in the mail, whichever occurs first.

15.9. Governing Law. This Agreement will be governed by the laws of Vietnam, without reference to conflict of laws principles. Licensee agrees that any litigation relating to this Agreement may only be brought in, and will be subject to the jurisdiction of, any relevant competent court of Vietnam.
Should you have any questions concerning this Agreement, please contact ATOMI at:

ATOMI SYSTEMS, INC.
Headquarters: No. 281 Group 1, Phu Dien, North Tu Liem, Hanoi, Vietnam.
Office : 15F, Viet A Building, 9 Duy Tan Str., Dich Vong Hau, Cau Giay, Hanoi, Vietnam.
Website : https://atomisystems.com
Support : https://atomisystems.com/support/ or support@atomisystems.com
Sales : sales@atomisystems.com
Phone : +844-3755-8373
Fax : +844-3755-8372

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