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Definitions: The term “SOFTWARE” throughout this agreement means the machine readable, binary, object
code
form, and the related documentation for RPSPASS, a software package that is designed to allow flow
cytometer calibration for small particles. The term “RECIPIENT” means the party that downloads the
software. The term “PROVIDER” means the National Cancer Institute (NCI), a participating institute of
the
National Institutes of Health (NIH), and an agency of the United States Government.By downloading or
otherwise receiving the SOFTWARE, RECIPIENT may use the SOFTWAREsubject to RECIPIENT’s agreement to
the
following terms:
- THE SOFTWARE SHALL NOT BE USED IN THE TREATMENT OR DIAGNOSIS OF HUMAN SUBJECTS. RECIPIENT is
responsible for compliance with all laws and regulations applicable to the use of the SOFTWARE.
- RECIPIENT shall not distribute the SOFTWARE, in whole or in part without express advance written
approval of PROVIDER.
- The SOFTWARE may be used for research, academic, and educational purposes only. The SOFTWARE may
not
be used for commercial purposes. RECIPIENT will not license or sell or use the SOFTWARE for
commercial
purposes or applications.
- The SOFTWARE that is distributed pursuant to this Agreement has been created by United
StatesGovernment employees. In accordance with Title 17 of the United States Code, section 105, the
SOFTWARE isnot subject to copyright protection in the United States. Other than copyright, all
rights,
title and interest in the SOFTWARE shall remain with the PROVIDER.
- RECIPIENT shall not modify, extend, decompile, make derivatives of, merge, publish, reverse
engineer
or distribute the SOFTWAREwithout written permission from PROVIDER.
- RECIPIENT may publish or otherwise publicly disclose the results of using the SOFTWARE. RECIPIENT
agrees to acknowledge PROVIDER’s contribution of the SOFTWARE in all written publications containing
any data or information regarding or resulting from use of the SOFTWARE.
- THE SOFTWARE IS PROVIDED "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT
ARE DISCLAIMED. IN NO EVENT SHALL THE PROVIDER OR THE INDIVIDUAL DEVELOPERS BE LIABLE FOR ANY
DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO,
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS
INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PROVIDER makes no representations that the use of
SOFTWARE
will not infringe any patent or proprietary rights of third parties.
- RECIPIENT may, on an as-needed basis, send to PROVIDER reports regarding the application of the
SOFTWARE and the effectiveness and problems encountered in using the SOFTWARE, without disclosing
RECIPIENT’s confidential information. Information from general reports may be used by the PROVIDER
to
enhance the capabilities of the SOFTWARE. Reports can be forwarded to the PROVIDER at one of the
following addresses: joshua.welsh@nih.gov or jennifer.jones2@nih.gov
- No indemnification for any loss, claim, damage, or liability is intended or provided by either
Party
under this Agreement. Each Party shall be liable for any loss, claim, damage, or liability that said
Party incurs as a result of said Party's activities under this Agreement, except that Provider, as
an
agency of the United States, assumes liability only to the extent as provided under the Federal Tort
Claims Act (28 U.S.C. Chapter 171 Sections 2671-2680).
- RECIPIENT agrees not to claim, infer, or imply endorsement by the United States Government, or any
of its organizational units, contractors or employees. RECIPIENT agrees not to use any trademarks,
service marks, trade names, logos or product names of NCI or NIH to endorse or promote products
derived from the SOFTWARE without specific, prior and written permission.
- Title in the SOFTWARE shall remain with the PROVIDER. It is understood that nothing herein will be
deemed to constitute, by implication or otherwise, the grant to either party by the other of any
license or other rights under any patent, patent application or other intellectual property right or
interest. PROVIDER reserves the right to distribute the SOFTWARE to others and to use it for
PROVIDER’s own purposes. The United States Government explicitly retains all rights to use the
SOFTWARE for any purpose, to have it used on the Government’s behalf or to allow others to use it.