END-USER LICENSE AGREEMENT FOR SPRAY DRIFT TASK FORCE SOFTWARE
IMPORTANT-READ CAREFULLY: This End-User License Agreement (‘LICENSE AGREEMENT’) is a legally binding agreement between you (whether an individual and/or an entity) as the ‘Licensee’ and the Spray Drift Task Force (‘Task Force’) as the ‘Licensor’ concerning installation and use of the AgDRIFT® model, which includes the computer software release specified therein, associated media, printed materials, incorporated data, ‘online’ or electronic documentation, and output generated by or from the AgDRIFT® model (collectively, ‘SOFTWARE PRODUCT’). Your installation and use of the SOFTWARE PRODUCT is subject to the terms and conditions of this LICENSE AGREEMENT and all applicable laws.
By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this LICENSE AGREEMENT. If you do not agree to the terms of this LICENSE AGREEMENT, do not install or use the SOFTWARE PRODUCT and delete the SOFTWARE PRODUCT from your computer or return it to the Task Force.
SOFTWARE PRODUCT LICENSE
The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights granted to you by this LICENSE AGREEMENT constitute a license, not a transfer of title.
1. GRANT OF LICENSE. Except as otherwise provided herein, this LICENSE AGREEMENT grants you a limited, royalty-free, revocable and non-transferable license for the right to use the SOFTWARE PRODUCT including the object code of the software release specified therein during the term hereof as an educational, governmental, and management tool for assessing and mitigating pesticide spray drift and for educating applicators of pesticides in pesticide spray drift reduction. As a Licensee, you shall not decompile, reverse engineer or otherwise attempt to discover the source code of the SOFTWARE PRODUCT nor authorize or permit others to do so.
Non-governmental Licensees shall not use the SOFTWARE PRODUCT in any litigation, including without limitation judicial and administrative proceedings. To install or use the SOFTWARE PRODUCT in a manner not expressly licensed by the terms and conditions of this LICENSE AGREEMENT, you must seek a modification of the LICENSE AGREEMENT as provided for herein, which modification the Task Force in its sole discretion may agree to provide.2. PESTICIDE REGISTRATION DATA. Notwithstanding the foregoing GRANT OF LICENSE, the SOFTWARE PRODUCT shall not be used to support directly or indirectly the registration, continued registration, or amended registration of a pesticide product - including without limitation pesticide registration, reregistration, tolerance exemption, tolerance setting, and any related risk or exposure assessments, whether in the United States or any of its states, territories, or other subdivisions or in any jurisdiction outside the United States - to benefit a person or entity unless such person or entity is expressly authorized in writing by the Task Force to rely upon Task Force data. In addition to the foregoing, governmental entities performing the above-described pesticide-related regulatory purposes may use the SOFTWARE PRODUCT for such pesticide-related regulatory purposes for the benefit of a person or entity entitled to rely upon Task Force data by virtue of a binding offer to pay compensation for such use under § 3(c)(1)(F)(iii) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136a(c)(1)(F)(iii), or other provisions of law that provide identical protections to owners and submitters of data. You recognize that the SOFTWARE PRODUCT is based upon, and validated for the foregoing pesticide-related regulatory purposes by data owned by the Task Force.
3. INTELLECTUAL PROPERTY; CONFIDENTIALITY. The SOFTWARE PRODUCT is the intellectual property of the Task Force and is licensed to each Licensee only as expressly provided by this LICENSE AGREEMENT. All other rights are reserved. The Task Force’s intellectual property rights in the SOFTWARE PRODUCT include, without limitation, all data incorporated into and all output generated by or from the SOFTWARE PRODUCT and each reference herein to the SOFTWARE PRODUCT includes, without limitation, such data and output. You shall not remove any copyright or other proprietary notices contained in the SOFTWARE PRODUCT and may not distribute, transfer or publish the SOFTWARE PRODUCT without the express written permission of the Task Force. AgDRIFT® is a registered trademark of the Spray Drift Task Force. Each end user is responsible for maintaining the confidentiality of their own account number and/or password, if applicable.
4. GOVERNING LAW AND JURISDICTION. By installing or using this SOFTWARE PRODUCT, you agree that all matters relating to such installation or use shall be governed by the statutes and laws of the District of Columbia, without regard to the conflicts of law principles thereof. You and the Task Force agree and hereby submit to the personal jurisdiction of, and exclusive venue in, the Superior Court of District of Columbia and the United States District Court for the District of Columbia with respect to such matters, except that - for matters regarding the amount of compensation owed to the Task Force arising from use of the SOFTWARE PRODUCT - you or the Task Force may initiate binding arbitration in the District of Columbia under the terms of this LICENSE AGREEMENT. Notwithstanding the foregoing, in the event that Task Force finds, in its sole discretion, that it might suffer irreparable loss or harm to any of its intellectual property rights as a result of your breach of this LICENSE AGREEMENT, then the Task Force may, but shall not be required to, pursue any and all equitable or legal remedies in any court of competent jurisdiction pending outcome of the arbitration proceedings as otherwise provided for herein.
5. ARBITRATION OF COMPENSATION CLAIMS. If the Task Force loses any data compensation rights in the SOFTWARE PRODUCT as the result of breach of this LICENSE AGREEMENT by you or any person or entity for which you are responsible under this LICENSE AGREEMENT, you offer and agree to compensate the Task Force for such loss (including attorneys fees) and agree to submit such matter to binding arbitration in the same manner provided by FIFRA § 3(c)(1)(F)(iii), 7 U.S.C. § 136a(c)(1)(F)(iii).
6. INDEMNIFICATION. You are responsible for any and all use of the SOFTWARE PRODUCT that you install, and you agree to indemnify, defend, and hold harmless the Task Force from any liability or expense arising from such use or misuse. You further agree to immediately notify the Task Force of any unauthorized use of the SOFTWARE PRODUCT that you install or any other breach of this LICENSE AGREEMENT known to you.
7. U.S. GOVERNMENT RESTRICTED RIGHTS. The Cooperative Research and Development Agreement (CRADA) between the U.S. Environmental Protection Agency (EPA) Office of Research and Development, the U.S. Department of Agriculture (USDA) Agricultural Research Service (ARS), USDA Forest Service, and the Task Force establishes certain rights and duties with respect to the SOFTWARE PRODUCT, including a nonexclusive, irrevocable, paid-up, worldwide Government-Purpose license for the U.S. Government, the terms of which are incorporated herein by reference. FIFRA and the Federal Food, Drug and Cosmetic Act (‘FFDCA’) establish certain U.S. Government rights and duties with respect to data, such as the SOFTWARE PRODUCT, submitted in support of certain pesticide-related regulatory actions. This LICENSE AGREEMENT does not affect or alter U.S. Government rights and duties under the CRADA, FIFRA, or FFDCA. In addition to the foregoing rights, the U.S. Government may distribute or disclose the SOFTWARE PRODUCT within the U.S. Government pursuant to subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR § 52.227-19, provided that the rights granted hereby under such subparagraphs shall not extend to distribution or disclosure in a manner - including without limitation posting on an Internet host server or Internet site - accessible to persons not expressly included under such subparagraphs. Except as otherwise expressly provided by the CRADA, FIFRA, FFDCA, or this LICENSE AGREEMENT, the SOFTWARE PRODUCT is licensed to U.S. Government end users with only those rights granted to all other end users pursuant to the terms and conditions herein.
8. TASK FORCE MEMBER RIGHTS. The Task Force Joint Data Development Agreement establishes certain rights and duties with respect to the SOFTWARE PRODUCT on the part of Task Force members and certain affiliated entities. This LICENSE AGREEMENT does not affect or alter such rights and duties.
9. OTHER THIRD-PARTY RIGHTS. This SOFTWARE PRODUCT is licensed subject to all intellectual property ownership and other rights held by the Task Force's licensors, suppliers, and other providers, including without limitation Task Force members, government agencies, and software vendors. No rights or duties under this LICENSE AGREEMENT affect or alter such third-party ownership or rights.
10. EXPORT RESTRICTIONS. You agree that you do not intend to and will not, directly or indirectly, export, transmit, or permit the exportation or transmission of the SOFTWARE PRODUCT to any country to which or person to whom such export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission. You agree that you do not intend to and will not, directly or indirectly, post or permit the posting of the SOFTWARE PRODUCT on an Internet host server or Internet site.
11. TERM AND TERMINATION. This LICENSE AGREEMENT enters into effect immediately and automatically upon your first installation or use of the SOFTWARE PRODUCT and continues in effect until the Task Force discontinues the release licensed hereunder; PROVIDED, however, that your obligations as a Licensee herein survive the expiration or termination of your license to install or to use the SOFTWARE PRODUCT. Without prejudice to any other rights, Task Force may terminate this LICENSE AGREEMENT if you fail to comply with the terms and conditions of this LICENSE AGREEMENT. In such event, you must destroy all copies of the SOFTWARE PRODUCT.
12. MODIFICATIONS. This LICENSE AGREEMENT cannot be modified to extend the terms or conditions of the license except by written agreement between you and the Task Force that expressly supercedes or modifies this LICENSE AGREEMENT.
13. MISCELLANEOUS. Should you have any questions concerning this LICENSE AGREEMENT or desire to license additional rights not granted by this LICENSE AGREEMENT, to publish any information protected by copyright laws and/or this LICENSE AGREEMENT, or to contact Task Force for any reason, please write the Spray Drift Task Force, care of McKenna & Cuneo, L.L.P. / 1900 K Street, NW, Suite 100 / Washington, DC 20006-1108.
14. WARRANTY DISCLAIMER:
TASK FORCE (INCLUDING ITS OFFICERS, MEMBERS, AND AGENTS) EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE PRODUCT. THE SOFTWARE PRODUCT AND ANY RELATED DOCUMENTATION IS PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OR OF THE QUALITY, ACCURACY, SUITABILITY OF THE RESULTS GENERATED FROM THE USE OF THE SOFTWARE PRODUCT FOR PREDICTING SPRAY DRIFT, WHICH DEPENDS ON ACTUAL USE CONDITIONS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE PRODUCT REMAINS WITH YOU.
15. NO LIABILITY FOR DAMAGES. In no event shall Task Force (including its Officers, Members, or agents) be liable for any damages whatsoever (including, without limitation, indirect or consequential damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use this Task Force product, even if it has been advised of the possibility of such damages. Without limiting the above, the Task Force (including its Officers, Members, or agents) specifically disclaims any responsibility or liability for the reliability or accuracy of the results generated through use of the SOFTWARE PRODUCT to determine or control spray drift or for updating or supporting the SOFTWARE PRODUCT. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
Rev. December 14, 2005
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