License Terms

NON-COMMERCIAL END USER SOURCE CODE & BINARY LICENSE AGREEMENT Software: PHENIX (LBNL Ref. CR-1770) Version: 1 Alpha, Beta and General IMPORTANT - READ CAREFULLY: This License Agreement ("Agreement") is a legal agreement between you (in your capacity as an individual and as an agent for your company, institution or other entity) and The Regents of the University of California, Department of Energy contract-operators of the Ernest Orlando Lawrence Berkeley National Laboratory ("Berkeley Lab"). Downloading, installing, using, or copying of the Software (as defined below) by you or by a third party on your behalf indicates your agreement to be bound by the terms and conditions of this Agreement. If you do not agree to these terms and conditions, do not download, install or use the Software. 1. LICENSE GRANT. Berkeley Lab grants you, and you hereby accept, a non-exclusive, royalty-free perpetual license to install, use, modify, and prepare derivative works the version noted above of the computer software program noted above, in binary and source code format, or any derivative work thereof, together with any associated media, printed materials, and on-line or electronic documentation (if any) provided by Berkeley Lab (collectively, the "Software") FOR INTERNAL, NON-COMMERCIAL, RESEARCH AND DEVELOPMENT PURPOSES ONLY, subject to the following terms and conditions: (i) you may not distribute, rent, lease, loan, or sublicense the Software to any third party, nor may you distribute the Software as incorporated into any derivative work you may create. This version of the Software constitutes a research prototype and may be changed substantially. The license grant set forth above is subject to receipt by Berkeley Lab of any required U.S. Department of Energy approvals. 2. COPYRIGHT; RETENTION OF RIGHTS. The above license grant is conditioned on the following: (i) you must reproduce all copyright notices and other proprietary notices on any copies of the Software and you must not remove such notices; and (ii) in the event you compile the Software, you will include the copyright notice with the binary in such a manner as to allow it to be easily viewable. All copies of the Software shall be subject to the terms of this Agreement. Subject to approval by the U.S. Department of Energy: (a) you hereby acknowledge that the Software is protected by United States copyright law and international treaty provisions; (b) Berkeley Lab, and its licensors (if any), hereby reserve all rights in the Software which are not explicitly granted to you herein; (c) without limiting the generality of the foregoing, Berkeley Lab and its licensors retain all title, copyright, and other proprietary interests in the Software and any copies thereof, and you do not acquire any rights, express or implied, in the Software, other than those specifically set forth in this Agreement. Subject to Berkeley Lab's underlying copyright in the Software pursuant to the above, you retain all title, copyright, and other proprietary interests in any derivative works of the Software that you create and any copies thereof, and Berkeley Lab does not acquire any rights, express or implied, in such derivative works. 3. NO MAINTENANCE OR SUPPORT; TREATMENT OF ENHANCEMENTS YOU CHOOSE TO PROVIDE TO BERKELEY LAB. Berkeley Lab is under no obligation whatsoever to: (i) provide maintenance or support for the Software; or (ii) notify you of bug fixes, patches, or upgrades to the features, functionality or performance of the Software ("Enhancements") (if any), whether developed by Berkeley Lab or third parties. If, in its sole discretion, Berkeley Lab makes an Enhancement available to you and Berkeley Lab does not separately enter into a written license agreement with you relating to such bug fix, patch or upgrade, then it shall be deemed incorporated into the Software and subject to this Agreement. You are under no obligation whatsoever to provide any Enhancements to Berkeley Lab that you may develop over time; however, if you choose to provide your Enhancements to Berkeley Lab in source code form without contemporaneously requiring Berkeley Lab to enter into a separate written license agreement for such Enhancements, then you hereby grant Berkeley Lab a non-exclusive, royalty-free perpetual license to install, use, modify, prepare derivative works, incorporate into the Software or other computer software, distribute, and sublicense your Enhancements or derivative works thereof, in binary and source code form. 4. U.S. GOVERNMENT RIGHTS. The Software was developed under funding from the U.S. Department of Energy and the U.S. Government consequently retains certain rights as follows: the U.S. Government has been granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable, worldwide license in the Software to reproduce, prepare derivative works, and perform publicly and display publicly. Beginning five (5) years after the date permission to assert copyright was granted by the U.S. Dept. of Energy, and subject to any subsequent five (5) year renewals, the U.S. Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable, worldwide license in the Software to reproduce, prepare derivative works, distribute copies to the public, perform publicly and display publicly, and to permit others to do so. 5. CONFIDENTIALITY. You agree to take appropriate steps to ensure that the source code form of the Software remains confidential and is protected against unauthorized disclosure, use, or release, and will treat it with at least the same level of care as you would use to protect and secure your own confidential information, but in any event using no less than a reasonable standard of care. 6. WARRANTY DISCLAIMER. THE SOFTWARE IS SUPPLIED "AS IS" WITHOUT WARRANTY OF ANY KIND. BERKELEY LAB, ITS LICENSORS, THE UNITED STATES, THE UNITED STATES DEPARTMENT OF ENERGY, AND THEIR EMPLOYEES: (1) DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, 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. 7. LIMITATION OF LIABILITY. IN NO EVENT WILL BERKELEY LAB 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 BERKELEY LAB HAS BEEN WARNED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL BERKELEY LAB'S LIABILITY FOR DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. 8. INDEMNITY. You shall indemnify, defend, and hold harmless Berkeley Lab, the U.S. Government, 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 Berkeley Lab in enforcing this provision, including reasonable attorney fees. 9. TERM AND TERMINATION. The license granted to you under this Agreement will continue perpetually unless terminated by Berkeley Lab in accordance with this Agreement. 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. Upon such termination, you shall immediately cease using the Software, return to Berkeley Lab, or destroy, all copies of the Software, and provide Berkeley Lab with written certification of your compliance with the foregoing. Termination shall not relieve you from your obligations arising prior to such termination. Notwithstanding any provision of this Agreement to the contrary, Sections 5 through 12 shall survive termination of this Agreement. 10. EXPORT CONTROLS. You shall observe all applicable United States and foreign laws and regulations (if any) with respect to the export, re-export, diversion or transfer of the Software, related technical data and direct products thereof, including, without limitation, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. 11. NO ENDORSEMENT. In accordance with California Education Code Section 92000, you shall not use in advertising, publicity or other promotional activities any name, trade name, trademark, or other designation of the University of California, nor shall you so use "Ernest Orlando Lawrence Berkeley National Laboratory" or "United States Department of Energy" (including any contraction, abbreviation, or simulation of any of the foregoing) without Berkeley Lab's prior written consent. 12. GENERAL. This Agreement shall be governed by the laws of the State of California, excluding its rules governing conflicts of laws. 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 Berkeley Lab, 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. If you have any questions concerning this license, contact Lawrence Berkeley National Laboratory, Technology Transfer Department, One Cyclotron Road, MS 90R1070, Berkeley, CA 94720, Attn: Software Licensing or via e-mail at TTD@lbl.gov. (rev 010903)