End User License Agreement (EULA)
BY DOWNLOADING SOFTWARE AVAILABLE ON THE XRAYTOOLKIT WEBSITE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR USE THE SOFTWARE.
This Software License Agreement (hereinafter “Agreement”) is made for the Sandia Software on the xraytoolkit website and is by and between Sandia Corporation, a Delaware Corporation (“SANDIA”), operator of Sandia National Laboratories under Contract Number DE-AC04-94AL85000 for the U.S. Department of Energy (“DOE”), with principal offices located in Albuquerque, New Mexico and You (“LICENSEE”). The LICENSEE is the person or company that is being granted a license to the SANDIA SOFTWARE (defined below). Usage of the SANDIA SOFTWARE other than under the terms of this Agreement is prohibited. This Agreement is not assignable. If you are downloading SANDIA SOFTWARE for use by your company that you work for, you represent and warrant that you have the authority to bind your company to the terms of this Agreement. This Agreement is effective upon the date of acceptance of this Agreement (hereinafter “Effective Date”).
Article I: Definitions
1.1 SANDIA and LICENSEE shall have the meanings set forth above, and each may be referred to herein as a PARTY or, collectively, as PARTIES to this Agreement.
1.2 SANDIA SOFTWARE shall mean any software available for download on the xraytoolkit website, including but not limited to: (1) Mobile X-Ray Toolkit 1.0 (SCR 2097.0), (2) X-Ray Toolkit (XTK) v. 2.4.x.x (SCR 1245.2), and (3) X-Ray Toolkit (XTK) Touch (v. 1.0.x.x) (App) (SCR 1710.0) as well as any technical information, documentation, or data relating to the software available for download on the xraytoolkit website that Sandia, in its sole discretion, decides to make available to LICENSEE, and any update or version upgrade delivered or provided to LICENSEE pursuant to this Agreement.
1.3 GOVERNMENT shall mean the United States of America government and agencies thereof.
1.4 DOE shall mean the United States Department of Energy, an agency of the GOVERNMENT.
Article II: Grant of License and Ownership
2.1 Subject to the terms and conditions of this Agreement and to the extent of its rights, SANDIA hereby grants to LICENSEE a non-transferable, non-exclusive right and license to access and use, in executable format only and for internal purposes, the SANDIA SOFTWARE under the following terms and conditions:
2.1.1 SANDIA SOFTWARE is licensed, not sold to LICENSEE. All right, title and interest in and to SANDIA SOFTWARE and any copies thereof which may be made by LICENSEE shall remain the exclusive property of SANDIA. No ownership interest in SANDIA SOFTWARE is transferred to LICENSEE under this Agreement;
2.1.2 SANDIA shall retain ownership of SANDIA SOFTWARE at all times;
2.1.3 Use of the SANDIA SOFTWARE is limited to one (1) concurrent user.
LICENSEE may reproduce SANDIA SOFTWARE only as necessary for exercise of the use by a single concurrent user;
2.1.4 Sublicensing or distribution of the SANDIA SOFTWARE is prohibited;
2.1.5 Use or installation of the SANDIA SOFTWARE on a server is prohibited;
2.1.6 Use of the SANDIA SOFTWARE as part of a software-as-a-service offering is prohibited; and
2.1.7 Use of the SANDIA SOFTWARE as part of a paid consulting service is prohibited.
2.2. Portions of the SANDIA SOFTWARE include third party software. Such third party software is provided to LICENSEE in accordance with the terms of license agreements associated with such third party software. Required attributions and notices are provided as part of the SANDIA SOFTWARE. Licensee acknowledges that the SANDIA SOFTWARE includes software that has been provided by third parties. Use of third party code included in or accessed through the SANDIA SOFTWARE (including, but not limited to open source code) may be subject to other terms and conditions found in a separate license agreement, terms of use, or “Help/Legal” directory located within the SANDIA SOFTWARE. Sandia has the right to include such third party code within SANDIA SOFTWARE.
2.3. LICENSEE shall not disassemble, decompile, or otherwise reverse engineer the SANDIA SOFTWARE or attempt to access the source code for the SANDIA SOFTWARE.
2.4 LICENSEE shall not create any derivative work based upon the SANDIA SOFTWARE.
2.5 The right and license to use the SANDIA SOFTWARE automatically expires (a) three (3) years from the date of acceptance of this Agreement, or (b) upon notice of termination to LICENSEE under Article VII, whichever occurs first.
2.6 Express or implied rights outside of the scope of Article II are expressly excluded.
Article III: Duties of the Parties
3.1 SANDIA shall not be obligated to LICENSEE to support or maintain the SANDIA SOFTWARE or supply any updates, enhancements, and modifications of the SANDIA SOFTWARE to LICENSEE. SANDIA may, at its own discretion, provide to LICENSEE updated copies of the SANDIA SOFTWARE.
3.2 LICENSEE agrees not to remove copyright notices, markings or otherwise modify SANDIA SOFTWARE.
3.3 LICENSEE agrees to provide attribution to SANDIA for any use of the SANDIA SOFTWARE that brings attention to the SANDIA SOFTWARE or the use of the SANDIA SOFTWARE. In any attribution, LICENSEE shall indicate that the SANDIA SOFTWARE was created by Sandia National Laboratories and that the SANDIA SOFTWARE is licensed from Sandia Corporation.
3.4 The DOE may require SANDIA to report on the utilization or the effect of obtaining SANDIA SOFTWARE in the commercial marketplace. In this regard, LICENSEE agrees to reasonably cooperate with and assist SANDIA in making all such reports.
Article IV: Statements and Payments
4.1 There is no charge for the internal use of the SANDIA SOFTWARE as long as the SANDIA SOFTWARE is utilized in accordance with the rights and license granted in this Agreement.
4.2 Any taxes, assessments, or charges assessed or imposed by an entity or government other than by the GOVERNMENT or any state or local government in the United States of America, which SANDIA or LICENSEE or any other party shall be required to pay with respect to LICENSEE’S use or possession of the SANDIA SOFTARE shall be borne by LICENSEE.
Article V: Nondisclosure
RESERVED
Article VI: Duration and Termination
6.1 SANDIA may terminate or reduce the rights and licenses granted LICENSEE under Article II of this Agreement at its sole discretion for any reason at any time.
6.2 If rights and licenses granted to LICENSEE under this Agreement are terminated in accordance with Article VI of this Agreement, LICENSEE shall have no further right and license to the SANDIA SOFTWARE as provided in Article II of this Agreement. Upon termination or expiration of this Agreement, LICENSEE shall delete the SANDIA SOFTWARE from its systems and if requested, verify such deletion in writing.
6.3 All clauses intended by their nature to survive termination including, but not limited to, Article III, Article VII and Article VIII shall survive termination of this Agreement.
Article VII: Warranty, Liability, and Indemnification
7.1 LICENSEE shall notify SANDIA of any known infringement of the SANDIA SOFTWARE.
7.2 SANDIA makes no warranty, express or implied, as to the accuracy or utility of SANDIA SOFTWARE and makes no warranty, express or implied, that the use of any SANDIA SOFTWARE will not infringe any United States or foreign patents, copyrights, or intellectual property. SANDIA SOFTWARE is made available hereunder to LICENSEE on an “AS-IS” basis.
7.3 EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED HEREUNDER.
7.4 SANDIA makes no warranty, express or implied, as to any output, results or data from use of the SANDIA SOFTWARE. LICENSEE is solely responsible for usage of any output, results or data from the SANDIA SOFTWARE for its internal purposes or if such output, results or data is used in any kind of engagement with a third party or LICENSEE product.
7.5 Neither SANDIA, the GOVERNMENT, third party co-owners nor their agents, officers and employees shall be liable for any loss, damage (including, incidental, consequential and special), injury or other casualty of whatsoever kind, or by whomsoever caused, to the person or property of anyone, including LICENSEE, its successors, and assigns, arising out of or resulting from the licenses granted to LICENSEE herein, or the accuracy and validity of SANDIA SOFTWARE. LICENSEE agrees for itself, its successors and assigns, to defend SANDIA and to indemnify and hold each of SANDIA and the GOVERNMENT harmless from and against all claims, demands, liabilities, suits or actions (including all reasonable expenses and attorney's fees incurred by or imposed on SANDIA or the GOVERNMENT in connection therewith) for such loss, damage (including incidental, consequential and special), injury or other casualty.
7.6 The GOVERNMENT is neither a party to nor assumes any liability for activities of SANDIA in connection with this Agreement.
7.7 NEITHER THE GOVERNMENT, THE DOE, NOR ANY OF THEIR EMPLOYEES, MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT, OR PROCESS DISCLOSED, OR REPRESENTS THAT ITS USE WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS.
Article VIII: General Provisions
8.1 LICENSEE shall not, without the express written consent of SANDIA, make any verbal or written statements or perform any act indicating that SANDIA endorses or approves, or has endorsed or approved, any LICENSEE product or service.
8.2 Nothing contained in this Agreement shall be construed as conferring any right to LICENSEE to use in advertising, publicity or other promotional activities any name, trade name, trademark or other designation of SANDIA, including the use of the names Sandia, “Sandia Corporation”, “Sandia National Laboratories”, the Sandia Thunderbird Logo, or any other SANDIA mark (including any contraction, abbreviation or simulation of any of the foregoing), except to the extent expressly permitted in Articles III and VIII of this Agreement.
8.3 Notices under this Agreement shall be sufficient if mailed by certified or registered mail, return receipt requested, if sent by facsimile, if personally delivered to the PARTIES, if emailed to email addresses provided by PARTIES or if deposited in a nationally recognized overnight carrier. Notices by mail shall be deemed received three days after being deposited in the U.S. mail, certified or return receipt requested or the third business day following the deposit of such notice in a nationally recognized overnight carrier. Faxes shall be deemed received on the day following successful transmission when followed by written confirmation by U.S. mail, certified or return receipt requested or the third business day following the deposit of such notice in a nationally recognized overnight carrier, by the sender. Notices to the LICENSEE shall be sent to the address of LICENSEE provided during registration for the SANDIA SOFTWARE. Notices to SANDIA shall be sent to:
Sandia Technical Contact (Express mail):
Sandia National Laboratories
Attn: Bryce Eldridge
Reference: XTK Mobile License
1515 Eubank SE/Mailstop 1125
Albuquerque, NM 87123
Telephone: (970) 222-6545
Facsimile: (505) 844-5946
Email: bdeldri@sandia.gov
Statements and notices (Express mail):
Sandia National Laboratories
Attn: Licensing Administration
Reference: XTK Mobile License
1515 Eubank SE/Mailstop 0114
Albuquerque, NM 87123
Telephone: 505-844-0236
Facsimile: 505-844-8011
Statements and notices (U.S. mail):
Sandia National Laboratories
Attn: Licensing Administration
Reference: XTK Mobile License
P.O. Box 5800/Mailstop 0114
Albuquerque, NM 87185
Telephone: 505-844-0236
Facsimile: 505-844-8011
For Payments
Sandia National Laboratories
Reference: XTK Mobile License
P.O. Box 5520
Albuquerque, NM 87185-5520
8.4 The waiver of a breach of this Agreement or the failure of SANDIA or LICENSEE to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
Article IX: Assignment
9.1 LICENSEE shall not assign this Agreement or any right granted nor delegate any duties under this Agreement without the prior written consent of SANDIA.
Article X: U.S. Competitiveness
10.1 LICENSEE agrees that any design and development resulting from use of SANDIA SOFTWARE will be performed in the United States and that products resulting from use of SANDIA SOFTWARE will be substantially manufactured in the United States.
Article XI: Government Sponsorship
11.1 The United States Government is neither a party to nor assumes any liability for activities of SANDIA in connection with this Agreement.
11.2 The GOVERNMENT is granted for itself and others acting on its behalf a paid-up, nonexclusive, nontransferable, irrevocable, worldwide license in SANDIA SOFTWARE for use by or on behalf of the GOVERNMENT.
11.3 For an initial period of five (5) years beginning on the date permission to assert copyright in SANDIA SOFTWARE was granted to SANDIA by DOE, the GOVERNMENT is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable, worldwide license in SANDIA SOFTWARE to reproduce, prepare derivative works, perform publicly and display publicly.
11.4 Beginning five (5) years after permission to assert copyright is granted to Sandia by DOE, the GOVERNMENT is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable, worldwide license in SANDIA SOFTWARE to reproduce, prepare derivative works, distribute copies to the public, perform publicly and display publicly, and to permit others to do so. Subject to DOE approval, the initial period of five (5) years described in Paragraph 11.3 of this Agreement, may be extended for successive five (5) year periods. The DOE approval will be based on the standard that SANDIA SOFTWARE remains commercially available, and the market demand is being met.
11.5 MARCH-IN RIGHTS: The PARTIES agree and understand that the GOVERNMENT retains “march-in” rights, in accordance with the procedures set forth in 37 CFR 401.6 and any supplemental regulations promulgated by the DOE.
11.6 LICENSEE acknowledges that the DOE has audit and inspection rights over all activities conducted at SANDIA’s location. LICENSEE hereby permits the exercise of such rights in conjunction with LICENSEE’S activities which may involve proprietary information disclosed to SANDIA hereunder; provided, however, that any disclosure to DOE is further protected under 18 USC 1905.
Article XII: Export Control
12.1 LICENSEE shall abide by the export control laws and regulations of the United States Department of Commerce and other United States governmental regulations relating to the export of SANDIA SOFTWARE. Failure to obtain an export control license or other authority from the GOVERNMENT may result in criminal liability under U.S. laws.
Article XIII: Controlling Law
13.1 This Agreement is made in Albuquerque, New Mexico, U.S.A., and shall be governed by and construed in accordance with the laws of the State of New Mexico. The PARTIES agree to the exclusive jurisdiction of the courts of New Mexico or the United States District Court for New Mexico.
Article XIV: Force Majeure
14.1 If either PARTY is prevented from or delayed in carrying out any of the provisions of this Agreement by reason of any natural disaster, war, accident, labor disturbance, breakdown of plant or equipment, lack or failure of transportation facilities, sources of supply of labor, raw materials, power or supplies, or by reason of any law, order, proclamation, regulation, ordinance, demand or requirement of any government or any subdivision, authority or representative of any such government, the PARTY so prevented or delayed shall be excused from performance to the extent and during the period of such prevention or delay.
Article XV: Severability
15.1 In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions of this Agreement, and such clause shall be severed only to the extent such clause is invalid, illegal, or unenforceable.
Article XVI: Entire Agreement
16.1 Each PARTY warrants and represents that the execution and delivery of this Agreement, by SANDIA and LICENSEE, has not been induced by any promises, representations, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding between SANDIA and LICENSEE with respect to the SANDIA SOFTWARE. This Agreement supersedes all previous communications, representations, and undertakings, either verbal or written, between SANDIA and LICENSEE with regard to the SANDIA SOFTWARE.
16.2 The Index and Headings used in this Agreement are for reference purposes only and shall not be used in the interpretation or construction of this Agreement.