ATHENA PAVEMENT LCA SOFTWARE LICENSE AGREEMENT
The Software is provided by The ATHENA Sustainable Materials Institute ("ATHENA"), 119 Ross Avenue, Suite 100, Ottawa, Ontario, Canada, K1Y 0N6, conditional on your acceptance of the terms and conditions set forth below in this license agreement (the "Agreement"). The "Software" is defined as the ATHENA Pavement LCA, and provided to you in executable form only (i.e., object code), together with any online or electronic documentation (if any) provided by ATHENA. The term "Software" shall also include any upgrades, modified versions, additions, or copies of the Software licensed to you by ATHENA in an executable or other form.
If the end user is an instrumentality of the US Government this agreement is a contract with the US Government and becomes effective when signed by the contractor and the GSA Contracting Officer as addenda to the Contract. This EULA (or TOS) shall bind the government, subject to federal law. This agreement shall not operate to bind a government employee or person acting on behalf of the government in his or her personal capacity.
BY INSTALLING, COPYING, VIEWING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL, COPY, OR USE THE SOFTWARE.
You desire to obtain, and ATHENA is willing to grant, the right to use the software. This Agreement applies to the Software only.
1. LICENSE GRANT FOR THE SOFTWARE. ATHENA grants you, free of charge, and you hereby accept, a perpetual, personal, non-exclusive license to install and use the Software.
The Software is provided to you subject to the following terms and conditions:
(a) You acknowledge that the Software constitutes a release code, and that ATHENA may change or update the Software substantially from time to time, making your copy outdated and possibly unsupported (if you have purchased support pursuant to another agreement with ATHENA);
(b) You may copy the Software to the extent reasonably necessary to exercise the foregoing license, and for backup and archival purposes; provided however that (i) you must reproduce all copyright notices and other proprietary notices on any copies of the Software and you must not remove or alter those notices; (ii) all copies of the Software shall be subject to the terms of this Agreement;
(c) You may not reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Software, convert the Software into human readable form or into another computer language. You may not modify, alter, or create derivative works of the Software in any manner;
(d) You may not rent, lease, loan, sublicense, distribute or transfer the Software to any third party, nor use the Software on a time-sharing or service bureau or similar basis to process data for others; and
(e) You may use the documentation that ATHENA provides with the Software solely for the purposes of assisting you in using the Software and no other reproduction or use of the documentation is permitted.
2. TITLE TO SOFTWARE. You acknowledge and agree that ATHENA shall retain all right, title and interest in and to the Software and all copies thereof, including, without limitation, all worldwide intellectual and industrial property rights, which includes all rights in each country to copyrights, trademarks, service marks, patents, inventions, industrial designs, trade secrets, trade dress and all other proprietary rights, and that nothing herein transfers or conveys to you any ownership right, title or interest in or to the Software or to any copy thereof or any license right with respect to same not expressly granted herein.
3. CONFIDENTIALITY. ATHENA and you agree that material and information of the other which has or will come into the possession or knowledge of each in connection with this Agreement may consist of confidential information ("Confidential Information"), the disclosure of which to or use by unauthorized parties could be damaging. You agree that the Software constitutes such Confidential Information. Each party agrees to hold any Confidential Information of the other which comes into its possession in the strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to employees requiring such material or information in order to perform their duties for you, and not to release or disclose it to any other party at any time, except as may be specifically agreed upon in this or any other Agreement between the parties hereto. Each party will use its best efforts to prevent its employees from using or disclosing such information to any unauthorized party. You may disclose the Software only to your agents or subcontractors that ATHENA approves in writing in advance, such approval not to be unreasonably withheld. Confidential Information does not include information which: (i) was at the time of disclosure to a party, in the public domain; (ii) after disclosure to a party becomes part of the public domain through no fault of the receiving party; (iii) was in the possession of the receiving party prior to the time of disclosure to it without any obligation of confidence or any breach of confidence; (iv) was received after disclosure to a party from a third party who had a lawful right to disclose such information to it; (v) was independently developed by a party without reference to the confidential information of the other party; or (vi) was ordered to be disclosed by a court, administrative agency, or other governmental body with jurisdiction over the parties hereto, provided that the ordered party will first have provided the disclosing party with prompt written notice of such required disclosure and will take reasonable steps to allow the disclosing party to seek a protective order with respect to the confidentiality of the information required to be disclosed. Further, the ordered party will promptly cooperate with and assist the disclosing party in connection with obtaining such protective order.
4. MAINTENANCE AND SUPPORT OF THE SOFTWARE. The Software is provided "as is", and you are not entitled, as part of this Agreement, to any technical, maintenance or interpretative support for the Software. ATHENA has separate support packages available and you may contract under a separate agreement and for a separate fee to receive such support. ATHENA may provide minor technical assistance to you, at ATHENA’s sole option, with respect to the installation of the software. ATHENA may from time to time, and at ATHENA’s sole option, release updates, bug repairs, or routine maintenance patches (collectively, "Minor Updates") to you free of charge. Such Minor Updates shall form part of the Software and your use of the Minor Updates is subject to all the terms and conditions of this Agreement. This Agreement does not give any right whatsoever to you to any new releases of the Software.
5. WARRANTY AND DISCLAIMER. ATHENA PROVIDES NO WARRANTY FOR THE SOFTWARE. ATHENA AND ITS MEMBERS AND SUPPORTERS: (1) DISCLAIM ANY WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, (2) DO NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SOFTWARE, (3) DO NOT REPRESENT THAT USE OF THE SOFTWARE WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS, (4) DO NOT WARRANT THAT THE SOFTWARE WILL FUNCTION UNINTERRUPTED, THAT IT IS ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL ATHENA OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF DATA, FOR ANY REASON WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF ATHENA HAS BEEN WARNED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
7. INDEMNITY. You shall indemnify, defend, and hold harmless ATHENA, the Software developers, the Software sponsors, and their agents, officers, and employees, against any and all claims, suits, losses, damage, costs, fees, and expenses arising out of or in connection with this Agreement. You shall pay all costs incurred by ATHENA in enforcing this provision, including reasonable attorney fees. When the end user is an instrumentality of the US Government the indemnity requirement of this paragraph shall not apply. Recourse against the United States for any alleged breach of this agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable.
8. ASSIGNMENT. You may not assign this Agreement without ATHENA’s consent. ATHENA may delegate to Affiliates (for the purpose of this Section, the term "Affiliate" shall have the meaning given to it in the Canada Business Corporations Act) of ATHENA and to agents, suppliers, contractors and resellers of ATHENA any of the obligations herein imposed upon ATHENA and ATHENA may disclose to any such persons any information required by them to perform the duties so delegated to them, but such delegation shall not relieve ATHENA of its performance obligations hereunder.
9. TERMINATION. If you breach any term of this Agreement, and fail to cure such breach within thirty (30) days of the date of written notice, this Agreement shall immediately terminate. Furthermore, ATHENA may terminate this Agreement at any time, in its sole discretion, upon written notice to you. Upon any such termination, you shall immediately cease using the Software, return to ATHENA, or destroy, all copies of the Software, and provide ATHENA with written certification of your compliance with the foregoing. Termination shall not relieve you from your obligations arising prior to such termination, including but not limited to the responsibility to pay previously accrued fees. Notwithstanding any provision of this Agreement to the contrary, Sections 2 through 8 shall survive termination of this Agreement. When the end user is an instrumentality of the US Government, the termination provisions of paragraph 10 shall not apply. Recourse against the United States, if any, must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.
10. GENERAL. This Agreement shall be governed by the laws of the Province of Ontario. No provision in either party's purchase orders, or in any other business forms employed by either party will supersede the terms of this Agreement, and no modification or amendment of this Agreement is binding, unless in writing signed by a duly authorized representative of each party. This Agreement is binding upon and shall inure to the benefit of ATHENA, its successors and assigns. This Agreement represents the entire understanding of the parties, and supersedes all previous communications, written or oral, relating to the subject of this Agreement.