Revised Date: March 16th, 2023
PLEASE READ THIS ATMOSIC SDK SOFTWARE LICENSE AGREEMENT ("AGREEMENT"). BY CLICKING THE "ACCEPT" OR "AGREE" BUTTON, OR OTHERWISE ACCESSING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THE AGREEMENT ON BEHALF OF YOURSELF AND YOUR COMPANY (“LICENSEE”) AND LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LEGALLY BINDING AGREEMENT.
IF YOU ARE NOT SO AUTHORIZED OR LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT" OR "AGREE" BUTTON OR ACCESS, DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The software development kit (SDK) and related materials available for download to Licensee includes software in both source code ("Source Code") and object code ("Object Code") versions, documentation and other materials (collectively, source code, object code, documentation and other materials will be referred to herein as the "Licensed Software"). Except as separately noted herein, all terms and conditions of this Agreement apply to all of the Licensed Software.
Except as expressly set forth herein, Atmosic owns all of the Licensed Software and makes it available to Licensee only under the terms and conditions set forth in this Agreement.
Subject to the terms and conditions of this Agreement, Atmosic hereby grants to Licensee a royalty-free, non-exclusive, non-transferable, revocable, limited license to possess and to use the Licensed Software in a secure location in accordance with the applicable terms herein. Licensee may make back-up copies and install and use multiple copies of the Licensed Software on a shared computer or concurrently on different computers, solely for Licensee’s use within Licensee’s Business. “Business” shall mean individual use by Licensee and its subsidiaries that it owns by more than 50 percent. The following terms apply to the specific type of Licensed Software:
Licensee shall have the right to use, copy, modify and prepare and have prepared derivative works of the Source Code for internal development and testing purposes only for execution or operation with applicable Atmosic products. Licensee shall own any modification it makes directly to the Source Code that optimizes quality or performance with Licensee’s product ("Modification(s)") subject to Atmosic’s ownership of the underlying Source Code and all intellectual property rights therein.
Licensee may distribute the Object Code (in object code form only) and compiled Source Code (in object code form only) with Modifications solely for execution or operation with applicable Atmosic products for which Source Code and Object Code was designed and as incorporated in Licensee’s products with a form of end user license agreement that is as protective of Atmosic’s Licensed Software as this Agreement. Licensee agrees not to disassemble, decompile or reverse engineer the Object Code.
Certain code, documentation or other materials distributed in connection with the Licensed Software may originate from third-party licensors and be licensed to Licensee pursuant to separate terms and conditions that appear upon installation, acceptance or activation of the Licensed Software or are contained or described in the corresponding release notes or other documentation or header or source files. Such third party code, documentation or other materials may be subject to the terms of open source or free software licenses. Licensee agrees to carefully review and abide by the terms and conditions of these licenses to the extent that they govern such third party code, documentation or other materials. Notwithstanding the foregoing, as between Atmosic and Licensee, to the maximum extent permitted by applicable law and if not prohibited by any such third-party licenses, all such third party code, documentation or other materials shall be deemed covered under the terms set forth in the paragraphs entitled No Warranty, Limitation of Liability and Applicable Law and Jurisdiction under this Agreement.
Licensee agrees to comply with and reproduce any and all copyright and other attribution notices/instructions of Atmosic as included in the Licensed Software in connection with Licensee’s distribution rights pursuant to the Agreement.
No Other Rights
Notwithstanding any other provision in this Agreement, any license to the Licensed Software specifically does not include the granting to Licensee of any license or right to use any other Atmosic intellectual property rights, express or implied, by estoppel or otherwise and Atmosic reserves all rights not specifically granted under this Agreement. For clarity, Atmosic is not prohibited or otherwise restricted from independently developing new features or functionality with respect to the Licensed Software.
Intellectual Property Rights
The Licensed Software is licensed, not sold, to Licensee and can only be used in accordance with the terms of this Agreement. Atmosic and its licensors’ own all right, title, and interest in and to the Licensed Software, including all copies thereof. If Licensee provides to Atmosic any ideas, feedback, suggestions or recommendations regarding the Licensed Software, including without limitation bug fix feedback, (the “Feedback”), Licensee acknowledge and agree that all such Feedback is provided by Licensee on a non-proprietary and non-confidential basis and Licensee grants to Atmosic a perpetual, non-exclusive, worldwide, fully paid-up, irrevocable license, with the right to sublicense through multiple levels of sub-licensees, to incorporate, disclose and use without limitation the Feedback in the Licensed Software and any future versions of the Licensed Software or for any other purpose; provided however, Modifications marked in writing as “Proprietary Licensee Source Code Modifications” and disclosed to Atmosic by Licensee shall not be considered Feedback under this Section. All inventions, modifications and improvements to the Licensed Software conceived of or made by Atmosic that are based, either in whole or in part, on Licensee’s Feedback are the exclusive property of Atmosic, and all right, title and interest will vest solely in Atmosic.
Term and Termination
This Agreement is effective until (i) automatically terminated if Licensee fails to comply with any of the terms and conditions of this Agreement; or (ii) terminated by Atmosic. Atmosic may terminate this Agreement (and with it, all of Licensee’s right to the Licensed Software) immediately upon written notice (which may include email) to Licensee, with cause for Licensee’s material breach of the Agreement. If Licensee commences any litigation against Atmosic, then Atmosic may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this Agreement during the pendency of such litigation. Upon termination, Licensee shall immediately stop using and destroy all copies of the Licensed Software.
Unless covered by separate non-disclosure agreement executed by the Parties covering the specific subject matter of this Agreement, each party acknowledges that all information and materials which come into the receiving Party’s possession or knowledge in connection with this Agreement and which is marked, identified, or accepted as confidential or proprietary, or may be deemed confidential or proprietary by its nature or by the circumstances of its disclosure (“Confidential Information”), consists of confidential or proprietary information the improper disclosure or use of which will be damaging to disclosing party. Specifically and without limitation, the Licensed Software shall constitute Confidential Information, whether or not so marked and whether or not provided under this Agreement. The receiving Party agrees to hold all Confidential Information in confidence, using the same amount of diligence in preserving its secrecy as the diligence used in preserving the secrecy of the receiving Party’s own valuable confidential information, but in no event less than reasonable diligence. The receiving Party agrees to disclose Confidential Information only to those of its employees and third party suppliers having a need to know and who are parties to nondisclosure agreements containing terms at least as stringent as those contained herein. The receiving Party shall not disclose Confidential Information to any third party or use Confidential Information other than for the performance of this Agreement. Licensee agrees that, to the fullest extent permissible under applicable law, Licensee will not modify, reverse engineer, reverse-compile, reverse assemble, synthesize or in any way use the Licensed Software or other Confidential Information to facilitate or aid in the design or debugging of, a component, chip, reference system, semiconductor device, or integrated circuit whether for internal consumption or open market sale, or for any other purpose inconsistent with this Agreement.
Atmosic has no obligation to support or to continue providing or updating any of the Licensed Software.
THE LICENSED SOFTWARE PROVIDED BY ATMOSIC TO LICENSEE HEREUNDER IS PROVIDED "AS IS." ATMOSIC DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Limitation of Liability
ATMOSIC SHALL NOT BE LIABLE TO LICENSEE, LICENSEE’S CUSTOMERS, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH OR UNDER LICENSEE FOR ANY LOSS OF PROFITS, INCOME, SAVINGS, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, DIRECT OR INDIRECT DAMAGES (WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY), EVEN IF ATMOSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL ATMOSIC’S AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH OR UNDER LICENSEE EXCEED THE AMOUNT OF MONEY ACTUALLY PAID BY LICENSEE TO ATMOSIC FOR THE LICENSED SOFTWARE.
Governing Law and Jurisdiction
This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California. The state and/or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
Restricted Rights Notice
The Licensed Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Licensed Software - Restricted Rights" and DFARS 227.7202, “Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Licensed Software by the U.S. Government shall be solely in accordance with the terms of this License Agreement.
Licensee acknowledges that the Licensed Software and related technical data and services (collectively "Controlled Technology") are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Licensee agrees to comply with all relevant laws and will not export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required.
If any provision of this Agreement is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This Agreement is the complete and exclusive agreement between the parties relating to the Licensed Software and supersedes any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. There are no third party beneficiaries, express or implied, to this Agreement. This Agreement may only be modified in writing signed by an authorized officer of Atmosic. This Agreement, and Licensee’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Licensee without Atmosic’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
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