This Agreement ("Agreement"), effective as of the date on which the LICENSEE accesses the WEBSITE and/or the PROGRAM ("Effective Date"), and is by and between you as the user ("LICENSEE," as this term is further defined herein below); and the Board of Regents of the University of Oklahoma, a constitutional state entity of the State of Oklahoma, by and through the Office of Technology Development located at 301 David L. Boren Boulevard, Suite 3120, Norman, Oklahoma, 73019 ("UNIVERSITY"); and User Centric IP, LP ("IP LICENSOR") located 385 Science Park Road, State College, Pennsylvania 16803 [(405) 359-0773]. LICENSEE, UNIVERSITY and IP LICENSOR may be referred to herein in the singular as a "Party" and collectively as the "Parties."
NOW THEREFORE, the Parties expressly agree as follows:
"PROGRAM" shall mean the mPING generated data set which is capable of being accessed by the LICENSEE from and through the WEBSITE and which is embodied and disclosed in UNIVERSITY Disclosure No. 13NOR039 entitled "mPING; Meteorological Phenomena Identification Near the Ground (mPING)." The PROGRAM, and certain technologies related thereto, are being made available to LICENSEE as a result of that certain Non-Exclusive License Agreement ("IP LICENSE AGREEMENT"), dated April 7, 2016, by and between UNIVERSITY and IP LICENSOR. The terms and conditions of the IP LICENSE AGREEMENT take precedence over this Agreement.
"LICENSEE" shall mean a person accessing, installing, downloading, copying, or otherwise using PROGRAM;
"WEBSITE" shall mean without limitation, https://mping.ou.edu/, as well as www.ou.edu and any and all UNIVERSITY website subdomains and/or any website(s) in which the PROGRAM is capable of being accessed and/or used.
By accessing, installing, downloading, copying, and/or otherwise using the PROGRAM, LICENSEE understands, acknowledges, and expressly agrees to be bound by this Agreement, including, but not limited to, any and all provisions, terms, restrictions, and warranties set forth herein.
UNIVERSITY and IP LICENSOR hereby grants to LICENSEE a non-exclusive, non-commercial, non-transferable, non-sublicensable, revocable right to access and/or otherwise use the PROGRAM in accordance with and subject to the provisions, terms, restrictions and warranties set forth in this Agreement. Such rights may become commercial in nature only with the express written permission of IP LICENSOR, including but not limited to the execution of a separate license agreement between LICENSEE and IP LICENSOR for rights to IP LICENSOR's related IP portfolio for commercial use.
LICENSEE warrants, covenants, and represents that he/she shall not (nor attempt to), distribute, reverse engineer, decompile, and/or disassemble the PROGRAM or create derivative works from and/or based upon PROGRAM for the purpose of distribution without the express written permission of IP LICENSOR, including but not limited to the execution of a separate license agreement between LICENSEE and IP LICENSOR for rights to IP LICENSOR's related IP portfolio for commercial use. Furthermore, LICENSEE warrants, covenants, and represents that he/she will no be:
generating any form of a revenue stream that makes use of, depends upon, or requires the mPING data, API, and/or coding in any manner, shape, or form;
charging fees for access to the mPING data from third parties or for access to any product derived from or containing mPING data;
bartering or exchanging the mPING data or any product created from the data for revenue or any other goods or services; and
using any code from the mPING application or the API code in any new application wherein LICENSEE will be charging fees or generating revenue in any form for access or use of LICENSEE&aspos;s application.
If at any time following the Effective Date of this Agreement any of the conditions set for in Section 2.c. should change LICENSEE is required to contact IP LICENSOR and make them aware of such changes. Failure to do so is a material violation of this Agreement and may make them responsible for additional penalties.
LICENSEE acknowledges, understands, and expressly agrees that any data generated by their report submissions or provided by UNIVERSITY is the sole and exclusive property of the UNIVERSITY.
LICENSEE acknowledges, understands, and expressly agrees that UNIVERSITY and/or IP LICENSOR has no obligation to provide to LICENSEE any maintenance, support, update services, and/or materials of and/or related to the PROGRAM.
ASSIGNMENT AND SECURITY
LICENSEE shall not assign this Agreement to any other party, and any attempt by LICENSEE to assign it shall be void ab initio. LICENSEE agrees to implement and maintain adequate and commercially reasonable security measures to ensure LICENSEE's compliance with the provisions, terms, restrictions, and warranties set forth in this Agreement.
This Agreement does not grant the LICENSEE ownership rights of any kind in and/or to the PROGRAM.
At all times, UNIVERSITY does and shall solely and exclusively retain the entire and full right, title, and interest in and to the PROGRAM.
Except for the rights expressly granted herein to LICENSEE under this Agreement, all rights, title and interests in and to the licensed technologies used in the PROGRAM shall at all times remain with and be vested in IP LICENSOR.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
UNIVERSITY AND IP LICENSOR MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE PROGRAM, OUTPUTS OF THE PROGRAM, AND/OR THIS AGREEMENT.
LICENSEE UNDERSTANDS, ACKNOWLEDGES, AND EXPRESSLY AGREES THAT UNIVERSITY MAKES NO REPRESENTATION OR WARRANTY TO THE OPERABILITY, QUALITY, ACCURACY, FITNESS FOR ANY USE, MERCHANTABILITY, SAFETY, AND/OR BREADTH OF THE PROGRAM. LICENSEE HEREBY ACCEPTS FULL AND COMPLETE RESPONSIBILITY FOR ANY AND ALL CONCLUSIONS, USES, AND ANALYSES RESULTING FROM LICENSEE'S ACCESS TO AND/OR USE OF THE PROGRAM.
LICENSEE understands, acknowledges, and expressly agrees that UNIVERSITY makes no representation in this Agreement as to whether there is any intellectual property, including, but not limited to, patents and/or copyrights, now held, or which may be held, by a third party(-ies) or by UNIVERSITY related to the PROGRAM, nor does UNIVERSITY make any representation and/or warranty that the PROGRAM does not infringe any intellectual property rights, including, but not limited to patents and/or copyrights, now held or that will be held by a third party(-ies) or by UNIVERSITY.
LICENSEE acknowledges, covenants, and expressly agrees that he/she has not been induced in any way by UNIVERSITY (its Regents, directors, officers, employees, students, agents, or representatives), or IP LICENSOR (its officers, directors, employees, agents, and/or representatives); to enter into this Agreement, and further warrants and represents that: (1) LICENSEE has conducted sufficient due diligence with respect to all items and issues pertaining to this Agreement and all other matters pertaining to this Agreement; (2) LICENSEE has adequate knowledge and expertise, or, where such knowledge is inadequate, has retained the guidance and/or advice of knowledgeable and expert consultants to adequately conduct the due diligence with respect to this AGREEMENT and the subject matter contained herein; and (3) LICENSEE expressly agrees to accept any and all risks inherent in this Agreement.
IN NO EVENT SHALL UNIVERSITY (ITS REGENTS, DIRECTORS, OFFICERS, EMPLOYEES, STUDENTS, AGENTS, AND/OR REPRESENTATIVES) AND/OR IP LICENSOR (ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES) BE LIABLE IN ANY WAY FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, AND/OR PUNITIVE DAMAGES OF ANY KINDS, INCLUDING ECONOMIC DAMAGES, FOR INJURY TO PERSON OR PROPERTY AND LOST PROFITS, RESULTING FROM LICENSEE'S ACCESS AND/OR USE OF THE PROGRAM AND/OR FROM ANY DAMAGES ARISING OUT OF AND/OR RELATED TO THIS AGREEMENT.
LICENSEE acknowledges, understands, and expressly agrees that the limitations and exclusions of liability and the disclaimers of warranty set forth in this Agreement form an essential basis of the bargain by and between the Parties.
TERMINATION AND EFFECTS OF TERMINATION
UNIVERSITY and IP LICENSOR may terminate this Agreement for any reason at its sole and exclusive discretion upon providing LICENSEE three (3) days prior written notice. Such notice may be transmitted electronically, including, but not limited to, via email, to LICENSEE.
If LICENSEE at any time fails to abide by the terms, provisions, and/or restrictions set forth in this Agreement, UNIVERSITY and IP LICENSOR shall, in addition to any other rights and/or remedies to which UNIVERSITY and IP LICENSOR may be entitled, either in law or equity, have the right to immediately terminate this Agreement without prior notice to LICENSEE.
Upon termination of this Agreement, LICENSEE shall, and hereby warrants and represents that LICENSEE shall, immediately cease accessing and/or using the PROGRAM in any and all manner(s) and shall, at the request of UNIVERSITY and IP LICENSOR, provide a written certification attesting to LICENSEE's cessation of access and/or use of the PROGRAM.
LICENSEE shall indemnify, defend and hold harmless UNIVERSITY (its Regents, officers, directors, employees, students, agents, and/or representatives) and IP LICENSOR (its officers, directors, employees, agents, and/or representatives) from any liability and against any claims, demands, suits, or causes of action whatsoever arising out of and/or related to the exercise of any of the rights granted by this Agreement.
UNIVERSITY and/or IP LICENSOR shall not be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or in connection with this Agreement, the PROGRAM (including, but not limited to, use and/or access thereof), analyses and/or outputs of the PROGRAM and/or which are generated by the PROGRAM, and/or the WEBSITE (including, but not limited to, use and/or access thereof), regardless of whether the University knows or should know the possibility of such damages.
In the event any legal action is commenced against UNIVERSITY and/or IP LICENSOR, UNIVERSITY and/or IP LICENSOR shall promptly notify LICENSEE of the action, request LICENSEE defend UNIVERSITY and/or IP LICENSOR as per its duty under this Section, and shall cooperate with LICENSEE's defense of the claim as reasonably required by LICENSEE so long as LICENSEE shall reimburse UNIVERSITY and/or IP LICENSOR for all of the costs and expenses reasonably incurred by UNIVERSITY and/or IP LICENSOR to provide any such cooperation and assistance in accordance with LICENSEE's request.
LICENSEE shall bear all costs and expenses incurred by LICENSEE in connection with the defense or satisfaction of any claim, and, shall pay any amounts required by any judgment or order of any court to be paid by UNIVERSITY and/or IP LICENSOR, so long as UNIVERSITY and/or IP LICENSOR shall fulfill its obligation as outlined in this section of this Agreement.
This Agreement shall be construed in accordance with the laws of the State of Oklahoma, without giving force and effect to its choice of law provision or to which party drafted particular provisions of this Agreement. Any legal action in connection with this Agreement shall be filed in a court of competent jurisdiction in the State of Oklahoma, to which jurisdiction and venue the Parties expressly agree.
LICENSEE may not use and shall not use or otherwise export and/or re-export the PROGRAM except as authorized by United States laws and the laws of the jurisdiction in which the PROGRAM was obtained. In particular, but without limitation, the PROGRAM may not be and shall not be exported and/or re-exported: (a) into (or to a national or resident of) any country subject to U.S. embargoes or trade sanctions that would prohibit such an export or re-export; or (b) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person&aspos;s List or Entity List. By using the PROGRAM, LICENSEE represents and warrants that LICENSEE is not located in, under the control of, or a national or resident of any such country or on any such list.
LICENSEE hereby warrants and represents that he/she/it shall comply with all applicable laws, rules, and/or regulations that apply to this Agreement and the PROGRAM.
If any provision of this Agreement is found to be illegal, invalid, and/or unenforceable by a court of competent jurisdiction, the legality, validity, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
LICENSEE shall be responsible for and pay all applicable taxes, if any, that may be levied by any taxing authority which are or may be payable pursuant to this Agreement and/or LICENSEE's access to and/or use of the PROGRAM.
This Agreement has been mutually negotiated by the Parties hereto and represents their voluntary agreement. No presumption of interpretation shall be imposed against the Party who constructed this Agreement.
This Agreement is intended by the parties to state the entire agreement between them with respect to the subject matter hereof, and to supersede all prior agreements, understandings, discussions and representations between the parties, except as may be otherwise noted herein. This Agreement may not be amended or modified in any way other than by express written agreement executed by both parties.
This Agreement may be executed in two or more fully executed counterparts, each of which shall be deemed an original and shall bind the executors, but all of which together shall constitute one and the same integrated agreement.
Should it become necessary for either party to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred in connection with that enforcement, such as but not limited to, reasonable court costs and attorney&aspos;s fees. Each party to this Agreement agrees to bear its own costs and professional fees incurred in relation to the negotiation and consummation of this Agreement.
The captions, headings and arrangements used in this Agreement are for the convenience of the parties only, and do not in any way limit or amplify the terms and conditions of this Agreement.