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The Atomz Software License and Services Agreement

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The Atomz Software License and Services Agreement Powered By Docstoc
					The Atomz Software License and Services Agreement

All users of Atomz's proprietary Software (the "Software") are required to agree to the
following terms and conditions unless they previously signed a software license
agreement in which case the terms of the previously signed agreement shall prevail. This
agreement (the "Agreement") is between you ("Customer") and Atomz Corporation
("Atomz") for use of the Software by Customer.

1. LICENSES

1.1. Access to the Software

Subject to the terms and conditions of this Agreement, Atomz hereby grants to Customer
a limited, non-exclusive and non-transferable right to access and use the Software in
accordance with the specific limitations set forth in this Agreement. The Software shall
be hosted and served and executed solely by a server under the direct supervision and
control of Atomz or its contractor. Customer shall not receive a copy of the Software, nor
have any other rights to the Software other than those granted under this Agreement.

1.2. Restrictions

Customer may use the Atomz Trial Software, as defined in Section 3.1, for personal or
non-profit use as follows:

* for a personal Web site about or for Customer, Customer's family, relatives, or friends
* for a non-commercial organization such as sports club, user group, reading circle, etc.
of which Customer is a member
* for a Web site for a non-profit organization
* for use by an unpaid individual or organization developing a Web site for one of the
entities listed above.

Customer may use the Atomz Trial Software for commercial purposes with no more than
one (1) Trial Software account.

Customer agrees not: (a) to sublicense, transfer or otherwise convey the Software to any
third party; (b) to modify or create derivative works of the Software; (c) to reverse
engineer, disassemble or otherwise reduce the Software to human-readable form; (d) to
use or copy the Software except as expressly authorized under this Agreement; and (e) to
attempt to access any software hosted and served by Atomz or its contractor's computers
except for the Software.

1.3. Promotional Rights

Customer hereby grants to Atomz a non-exclusive, worldwide, royalty-free license to use,
reproduce, distribute, publicly perform, publicly display and digitally perform Customer's
trademarks and service marks on Atomz Web site and customer newsletter stating that
Customer is using Atomz products and/or services. Subject to approval from Customer,
which shall not be unreasonably withheld or delayed, Atomz may issue a press release
stating that Customer is a user of Atomz products.

1.4. Limited Licenses

Atomz grants Customer no other license or right, by estoppel, implication or otherwise,
except for licenses and rights expressly granted in this Section 1.

2. INTEGRATION

2.1 No Integration Assistance

Atomz shall provide online documentation to Customer that can be used by Customer to
integrate the Software into the Customer Web sites. At Customer's request, Atomz may
provide technical support to Customer to assist in such integration at Atomz's then
current hourly rate.

2.2 Access to Web Pages

Customer shall provide Atomz access to the Customer Data. "Customer Data" means the
logical and physical organization and structure of the data and associated files relating to
Web pages of the Customer Web sites. Except as otherwise provided in the Atomz
Privacy Policy, Atomz will not use Customer Data for any purpose other than as
necessary to archive and back-up such data or otherwise perform its obligations herein.

3. FEES

3.1 Trial Software

Atomz may make available a version of the Software that may be used by Customer at no
charge ("Trial Software"). If Customer makes use of the Trial Software, Customer agrees
to display a logo provided by Atomz on pages that display search results generated by the
Trial Software.

3.2 Fee Based Software

For pricing on fee based Software, send an inquiry to sales@atomz.com.

3.3 Payment Terms

All payments shall be due upon receipt of invoice. For amounts paid after the due date,
Atomz reserves the right to charge Customer interest at the rate of one and one-half
percent (1.5%) per month (or the maximum rate permitted by law, if less). All payments
shall be in U.S. dollars. Customer will be responsible for, and will promptly pay, all taxes
of whatever nature (including but not limited to sales and use taxes) associated with this
Agreement on Customer's receipt or use of the Software and/or Support Services, except
for taxes based on Atomz's net income.

3.4 Fee Increases

During the term of this Agreement, Atomz reserves the right to increase the fees for use
of the Software and any Support Services for subsequent terms. Customer acknowledges
its acceptance of a fee increase by use of the Software on the effective date of the
increase.

4. SUPPORT SERVICES

4.1 Trial Software Technical Support

Technical support for Trial Software is available through online help at Atomz's Web site
or via email to support@atomz.com.

4.2 Fee Based Software Technical Support

Technical support for users who pay a fee for the Software is available through online
help at Atomz's Web site, via email to support@atomz.com or by phone. Atomz will
respond to support inquiries Monday through Friday, between 9 am and 5 pm Pacific
Time, excluding Atomz holidays.

5. TERM AND TERMINATION

5.1 Term for Free Software

This Agreement shall commence on the date the Agreement is accepted and shall
continue until terminated in accordance with this Section 5.

5.2 Term for Fee Based Software

This Agreement shall commence on the date an order for the Software is placed on the
Atomz Web site (http://www.atomz.com/) or when a valid order for the Software is
received by Atomz and incorporated as an Exhibit to this Agreement ("Effective Date").
The term for fee based Software shall be from the Effective Date and shall continue for
one (1) year or until terminated in accordance with this Section 5. This Agreement will
automatically renew for successive one (1) year terms at Atomz's then current prices
unless Customer provides Atomz with written notification of Customer's intent not to
renew the Agreement before the end of the current term.

5.3 Termination at Will

This Agreement may be terminated at will by Atomz upon five (5) days notice to the
Customer.
5.4 Termination for Breach

Either party may terminate this Agreement upon written notice if one party breaches a
material term of this Agreement and fails to correct the breach within five (5) days
following written notice from the other specifying the breach. Notwithstanding the
foregoing, Customer's breach of Section 1.1 or 1.2 shall constitute a non-curable breach
of this Agreement, and Atomz may terminate this Agreement following five (5) days
notice of such breach to Customer.

5.5 Rights and Obligations Upon Termination

The obligations of Atomz and Customer in Sections 5, 7, 8, 11 and 12 shall survive
termination or expiration of this Agreement. Upon termination this Agreement, all
licenses granted thereunder shall immediately terminate and each party shall return and
make no further use of Software, equipment, property, materials and other items (and all
copies thereof) belonging to the other party and provided in connection with this
Agreement. Upon termination of this Agreement, Customer shall promptly pay Atomz
any amounts owed.

6. CUSTOMER OBLIGATIONS AND ACKNOWLEDGEMENT

6.1 Usage Restrictions

Customer represents to Atomz that the Customer Web sites shall not contain
pornographic material, sites with links to pornographic sites, sites encouraging illegal
activity or racism, sites providing instructions or discussions about performing illegal
activities, or sites engaged in libelous or harassing activities. Atomz reserves the right, in
its sole discretion, to determine whether sites may use its Software and Support Services.

6.2 Data Transmission Security

Customer acknowledges that Atomz has neither responsibility for nor control of the
communications lines used to access the Software because such lines are provided by a
third party public utility, and that the security of transmissions to and from the Software
is not the responsibility of Atomz.

7. PROPRIETARY RIGHTS

Customer acknowledges that Atomz and/or its licensors own all intellectual property
rights, including goodwill, in the Software, modifications, or changes by either party and
any associated documentation as well as Atomz Marks. Customer hereby irrevocably
transfers to Atomz all rights, title and interest Customer may have in the Software or the
Atomz Marks.
Atomz acknowledges that Customer and/or its licensors own all intellectual property
rights in the Customer Web site and Customer's trademarks, service marks, and logos,
including all components and any associated documentation.

8. CONFIDENTIALITY

8.1 Defined

By virtue of this Agreement, the parties may have access to information that is
confidential to one another ("Confidential Information"). Confidential Information shall
include but not be limited to the Software performance and operation, algorithms,
formulas, methods, know-how, processes, designs, new products, developmental work,
prospective customer names, the terms and pricing under this Agreement, and Customer
Data, and all information clearly identified in writing at the time of disclosure as
confidential.

8.2 Exceptions

A party's Confidential Information shall not include information that (a) is or becomes a
part of the public domain through no wrongful act or omission of the other party; (b) was
in the other party's lawful possession prior to the disclosure and had not been obtained by
the other party either directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on disclosure; or (d) is
independently developed by one party without reference to the other party's Confidential
Information.

8.3 Use and Nondisclosure

The parties agree to hold each other's Confidential Information in confidence during the
term of this Agreement and for a period of five years after termination of this Agreement.
The parties agree, not to make each other's Confidential Information available in any
form to any third party or to use each other's Confidential Information for any purpose
other than the implementation of this Agreement, with the exception that a party may
disclose Confidential Information if required by any judicial or governmental request,
requirement or order; provided, that the party will promptly notify the disclosing party of
such request and cooperate with the disclosing party in its efforts to contest such request,
requirement or order or to obtain confidential treatment of such Confidential Information.
Each party agrees to take all reasonable steps to ensure that Confidential Information is
not disclosed or distributed by its employees or agents in violation of the terms of this
Agreement. Either party may disclose the terms of this Agreement and/or the transactions
contemplated hereby (i) in any filing made pursuant to the Securities Act of 1933 (the
"Securities Act") or the Securities Exchange Act of 1934 (the "Exchange Act"), to the
extent that such party, after consultation with outside legal counsel, determines that such
disclosure is required under the Securities Act or Exchange Act, as applicable or (ii) on a
"need-to-know" basis to its legal counsel, accountants, banks and potential purchasers of
its securities and their legal counsel.
9. WARRANTIES

9.1 Warranty for the Software

Atomz warrants to Customer that the Software will substantially perform the functions
described in the applicable documentation. If the Software does not conform to the
foregoing warranty, Atomz shall, as Atomz's sole and exclusive obligation and at its
option, repair or replace the relevant Software or refund to Customer a prorated portion
of the license fee paid for the relevant Software.

NOTWITHSTANDING THE FOREGOING, ATOMZ DOES NOT WARRANT THAT
CUSTOMER'S USE OF THE SOFTWARE SHALL BE UNINTERRUPTED OR
ERROR-FREE.

9.2 Disclaimers

The above warranties of Section 9 do not cover the results of accident, abuse, neglect,
improper testing, or vandalism caused by anyone other than Atomz or Atomz's authorized
agents, acts of God, use contrary to the applicable specifications or instructions, or repair
or modification to the Software by anyone other than Atomz or Atomz's authorized
agents. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, ATOMZ
FURNISHES, AND CUSTOMER ACCEPTS, THE SOFTWARE AS-IS, WITH NO
WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY
EXCLUDED THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND
ANY IMPLIED WARRANTIES ARISING FROM COURSE OF CONDUCT OR
DEALING. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL
OBLIGATIONS OR LIABILITIES ON THE PART OF ATOMZ ARISING OUT OF,
OR IN CONNECTION WITH, ANY SOFTWARE SUPPLIED UNDER THIS
AGREEMENT. TO THE EXTENT THAT ATOMZ MAY NOT, AS A MATTER OF
APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND
DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED
UNDER APPLICABLE LAW.

10. INDEMNIFICATION

Customer shall, at its own expense, defend, indemnify and hold Atomz and its affiliates,
officers, directors, employees, agents and contractors harmless from (a) any breach of
Customer's obligations under Section 6 and/or (b) and from any claim or suit alleging that
any part of the Customer Web site infringes any patent, copyright or trademark, or that
Customer misappropriated any trade secret of any other entity in connection therewith,
including any losses, damages, or expenses (including, without limitation, reasonable
attorneys' fees) arising from or incurred in connection with any such claim or suit.

11. LIMITATION OF LIABILITY
EXCEPT FOR BREACHES OF OBLIGATIONS SET FORTH IN SECTIONS 1 AND
8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST PROFITS OR REVENUE, LOST SAVINGS, LOSS
OF USE OF THE SOFTWARE OR ANY COMPONENT OF SUBPART THEREOF,
BUSINESS INTERRUPTION, OR COST OF SUBSTITUTED FACILITIES,
EQUIPMENT OR SERVICES, OR OTHER ECONOMIC LOSS ARISING OUT OF
BREACH BY THE OTHER PARTY OF ANY OF ITS REPRESENTATIONS,
WARRANTIES OR AGREEMENTS CONTAINED IN THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, WHETHER OR NOT ANY LIMITED REMEDY FAILED OF
ITS ESSENTIAL PURPOSE, AND WHETHER ANY CLAIM FOR RECOVERY IS
BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING
STRICT LIABILITY).

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO
EVENT SHALL ATOMZ 'S AGGREGATE LIABILITY TO CUSTOMER, AND ANY
OTHER THIRD PARTY, EXCEED THE AMOUNT ACTUALLY PAID TO ATOMZ
UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE
CLAIM OR ACTION, REGARDLESS OF THE FORM OF CLAIM OR ACTION.

12. GENERAL

12.1 Force Majeure

Neither party shall be liable hereunder by reason of any failure or delay in the
performance of its obligations hereunder (except for the payment of money) on account
of strikes, electrical or other shortages, riots, insurrection, fires, flood, storm, explosions,
acts of God, war, governmental action, labor conditions, earthquakes, material shortages,
or any other cause beyond the reasonable control of such party.

12.2 Independent Contractors

Nothing in this Agreement shall be construed as creating an employer-employee
relationship, a partnership, or a joint venture between the parties.

12.3 Governing Law

This Agreement shall be governed by the laws of the State of California, and without
reference to its conflicts of law as though entered into between California residents and to
be performed entirely within the State of California, and both Customer and Atomz
consent to jurisdiction and venue in the state and federal courts sitting in the State of
California and in particular, within San Francisco, California.

12.4 Severability
If for any reason a court of competent jurisdiction finds any provision of this Agreement,
or portion thereof, to be unenforceable, that provision of the Agreement will be enforced
to the maximum extent permissible so as to effect the intent of the parties, and the
remainder of this Agreement will continue in full force and effect. Failure by either party
to enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision.

12.5 Modification and Waiver

No modification to this Agreement, nor any waiver of any rights, will be effective unless
assented to in writing by the party to be charged, and the waiver of any breach or default
shall not constitute a waiver of any other right hereunder or any subsequent breach or
default.

12.6 Notices

All notices required or permitted under this Agreement will be in writing and delivered
by email, confirmed facsimile transmission, by courier or overnight delivery service, or
by certified mail, and in each instance will be deemed given upon receipt. All
communications to Atomz will be sent to the address set forth below; to Customer shall
be to Customer's address for billing; or to such other address as may be specified by
either party to the other in accordance with this Section. Either party may change its
address for notices under this Agreement by giving written notice to the other party.

Atomz Corporation
Attn: Billing
1111 Bayhill Drive, Suite 285
San Bruno, CA 94066
billing@atomz.com

12.7 Assignment

This Agreement may not be assigned or otherwise transferred by either party by
operation of law or otherwise, in whole or in part, without the prior written consent of the
other party, which consent will not be unreasonably withheld. Notwithstanding the
foregoing, either party may, without prior written consent of the other party, assign and
otherwise transfer this Agreement, and all of its rights and obligations hereunder, to a
successor to all or substantially all of its assets whether by way of merger, consolidation,
sale of stock or assets, operation of the law, or the like. Any attempt by either party to
assign this Agreement in breach of this Section 12.7 shall be void and null. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns.

12.8 Government Legend
If Customer is acquiring the Software on behalf of any unit or agency of the United States
Government, the following provisions apply. The Software constitutes a "commercial
item", as that term is defined at Federal Acquisition Regulation (FAR) 2.101 (Oct. 1995),
consisting of "commercial computer software" and "commercial computer software
documentation", as such terms are used in FAR 12.212 (Sept. 1995), and is provided to
the U.S. Government only as commercial software (with "Restricted Rights", if
applicable). Use, duplication, or disclosure by the U.S. Government is subject to
restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and
227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a)
(1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.

12.9 Entire Agreement

This Agreement and any mutually agreed-to terms governing the use of any upgrades to
the Software constitutes the entire and exclusive agreement between the parties hereto
with respect to the subject matter hereof and supersede any prior agreements between the
parties with respect to such subject matter.

ADDITIONAL INFORMATION

Any questions relating to this Web site or regarding the Atomz Software License and
Services Agreement may be directed to info@atomz.com.