LeachXS Lite™, Leach PRO™ and LeachXS CBP™

Copyright 2018 by the Energy Research Centre of the Netherlands and Vanderbilt University

 All Rights Reserved.

END USER LICENSE AGREEMENT

This End User License Agreement (the “Agreement”) by and between the ENERGY RESEARCH CENTRE OF THE NETHERLANDS (“ECN”) and VANDERBILT UNIVERSITY (“VU”), a Tennessee non-profit corporation (ECN and VU hereinafter referred to herein collectively as “Licensors”) and You (“Customer”) constitutes a legally binding agreement and governs you and your organization’s use of the Software (as defined below).  

1.   Definitions.  

1.1 “Confidential Information” means the object code, documentation and functionality of the Software.

1.2 “Software” means the version of the LeachXS software tool developed by the Licensors which is a database/expert system which provides (i) data management for leaching tests and materials characterization, (ii) models and simulation of leaching from soils, sediments, wastes, secondary materials and construction materials, including future releases and updates and all associated documentation, for which the Customer desires to obtain the license and has designated on the Registration Page.  

1.3 “Hardware” means the computer workstations, peripherals, modems and other equipment for operating the Software which must meet the following minimum requirements:

(i)      1.8 GHz or higher Intel® Pentium processor or similar;

(ii)     Windows 7 or Windows 10;

(iii)   Microsoft Excel;

(iv)    8 GB of RAM;

(v)     2 GB of available hard disk space; and

(vi)    a screen resolution of at least 1024x768 pixels.

Recommended requirements are: 2 GHz processor; Windows 7 operating system, 2 GB of RAM, 1Gb of available hard disk space, and a screen resolution of 1920x1080 pixels.

1.4 "Registration Page" means the portion of the web site used by Customer to enter information requesting the licensing of the Software.

2.   Software License; Restrictions.  

2.1   License.  

Subject to the terms and conditions of this Agreement, Licensors hereby grant to Customer, and Customer hereby accepts, a limited, non-transferable, non-exclusive right and license to use the Software subject to the restrictions set forth in this Agreement and for the term of the Agreement.   The Software provided hereunder is proprietary to Licensors and title thereto remains in Licensors.   Other than the rights in and to the Software granted to Customer hereunder, Customer acquires no rights in the Software, including patents, copyrights, trademarks and trade secrets, if any, embodied therein.   Customer acknowledges and agrees that Licensors claim that the Software contains valuable proprietary information and trade secrets developed or acquired by Licensors.   Customer shall secure and protect the Software in a manner consistent with the maintenance of Licensors’ rights therein and take reasonable action by instruction or agreement with its employees or independent contractors who are permitted access to the Software to satisfy its obligations hereunder.   Licensors have not provided Customer with a copy of, and Customer acquires no rights of any kind with respect to, the Software source code.  

2.2   Restrictions on Use.  

Customer shall only use the Software for the purpose as listed below:

LeachXS Lite™ version: Data management from leaching tests and material or waste characterization and evaluation of leaching from solid materials, such as coal combustion residues, contaminated soil, sediment, sludge, waste and construction material.  

LeachXS CBP ™ version: (i) Data management from leaching tests and material or waste characterization, (ii)  modeling and simulation of leaching from wastes and waste forms associated with nuclear waste management under laboratory and field scenarios, and (iii) modeling performance of  cementitious materials used in nuclear systems and nuclear waste applications.  

Leach PRO™ version: (i) Data management from leaching tests and materials or waste characterization, (ii)  modeling and simulation of leaching from wastes, secondary materials and construction materials under laboratory and field use and disposal scenarios.

The License shall permit one (1) person to use the Software on one (1) computer.   Additional users shall be required to obtain additional licenses.

Customer shall not do or attempt to do any of the following:

(i)      modify, adapt, merge, decompile, disassemble or reverse engineer the Software or any part thereof (or otherwise attempt to create or divulge any related source code);

(ii)     create derivative works based on the Software;

(iii)    make copies of the Software or share or disclose any applicable passwords or access codes to the Software, except as otherwise permitted herein;

(iv)    sublicense, rent, lease, lend, export or otherwise transfer the Software to any third party or to use in any country where prohibited by applicable law;

(v)     provide remote processing or service bureau services utilizing the Software;

(vi)    allow any unauthorized third party to implement, access, or operate the Software;

(vii)   remove or permit to be removed any labeling required by applicable law or other proprietary, confidential, or copyright notices, markings, or legends; or

(viii)  copy or use the database or the data included in the Software in software other than the Software.  

Customer shall only use the Software in accordance with applicable federal, state and local laws and regulations.   Customer agrees and acknowledges that the Software requires the Customer to exercise independent and professional judgment in its use.   Customer further agrees that nothing in the Software or anything else provided pursuant to this Agreement constitutes or is intended to be professional advice or a substitute for professional knowledge or judgment.   Licensors assume no liability or responsibility for decisions made by Customer and its employees authorized to use the Software.   Customer shall defend, indemnify and hold Licensors and their respective officers, trustees, faculty, staff, employees, students, agents and their respective successors or assigns harmless from and against all claims, liabilities and expenses (including reasonable attorneys’ fees) related to any third-party claims against Licensors and its successors or assigns with respect to the matters set forth in this Section 2.2.   This indemnification obligation shall survive the termination or expiration of this Agreement.  

3.   Limited Support; Updates.

This license entitles Customer to assistance by email which Licensors may make available within their sole discretion (“Limited Support”).   Limited Support is provided by email queries to the e-mail address provided by Licensors for that purposes or other contact point as may be designated by Licensors from time to time.  In order for Customer to receive the Limited Support set forth herein, Customer must be using the latest version and all current releases and updates of the Software on the Hardware.   If Licensors develop new versions of the Software, the new versions will be available to Customer on public website.   Limited Support does not include responding to Customer if, in Licensors’ reasonable opinion, Customer fails to provide sufficient information, as reasonably requested by Licensors, to enable Licensors to identify, reproduce and analyze the reported problem.   Licensors reserves the right to charge additional fees for such support.  

4.   Limited Warranty; Disclaimers; Limitations of Liability.  

4.1   Limited Warranty.  

EXCEPT AS STATED IN THIS SECTION 4.1, THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY.  

Licensors warrant that they have the authority to grant the licenses contained in this Agreement.   These warranties shall remain in effect provided:

(i)      Customer has not altered or improperly used the Software;

(ii)     Customer has complied with all configuration requirements; and

(iii)    Customer is not in breach of any provision of this Agreement (whether or not such breach is material).  

4.2   Disclaimer.  

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN SECTION 4.1 IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS.   LICENSORS DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER LICENSORS KNOWS OR HAD REASON TO KNOW OF CUSTOMER’S PARTICULAR NEEDS.   NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF LICENSORS IS AUTHORIZED TO MODIFY THE LIMITED WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES.   SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.   THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE.  

4.3   Limitation of Liability.  

Licensors’ entire liability and Customer’s exclusive remedy for a breach of this Agreement shall be termination of this Agreement.   Licensors shall have no liability for any direct, consequential, exemplary, indirect, special or incidental damages whether based on contract, tort or any other legal theory, arising out of or related to this Agreement or the inability to use the Software or Limited Support, nor shall Licensors be liable for any loss of data or lost profits of Customer, even if Licensors are apprised of the likelihood of such damages occurring. Licensors’ total liability under this Agreement for any reason shall not exceed the amount of the License Fees paid under this Agreement.  Customer acknowledges and agrees that licensing the Software for the License Fees under this Agreement reflects the allocation of risks expressed by (but not limited to) the above limitations of liability.  Modification of such allocation would affect the License Fees charged by Licensors, and in consideration of Licensors charging the License Fees, Customer agrees to such allocation of risks.  SOME COUNTRIES OR STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.

5.   Confidentiality.  

Customer may only use the Confidential Information solely for the purposes of using the Software.   Customer shall not disclose the Confidential Information except to those persons having a need to know for purposes authorized in this Section 5.   Customer shall take appropriate action, by instruction to or agreement with its employees, agents and subcontractors, to maintain the confidentiality of the Confidential Information.

Customer shall promptly notify Licensors in the event that the Customer learns of an unauthorized release or use of Confidential Information.   The parties acknowledge that monetary remedies may be inadequate to protect rights in Confidential Information and that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights.   Customer shall provide reasonable assistance and cooperation upon the reasonable request of Licensors in connection with any litigation against third parties to protect the Confidential Information, provided that Licensors shall reimburse the Customer for its reasonable out-of-pocket expenses.  

6.   Assignment.

Customer shall not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Licensors.   Licensors may assign their rights or obligations hereunder without the consent of or notice to Customer.   This Agreement shall inure to the benefit of and bind successors and permitted assigns of Licensors and Customer.  

7.   Term; Termination; Survival.  

7.1   Term; Termination.  

This Agreement takes effect upon Customer’s download of the interface which permits the Customer to operate the Software and remains effective until terminated as provided in this Agreement.  The license to use the Software is for the period of time specified when the license is granted, for which time is of the essence. This Agreement will also automatically terminate if Customer fails to comply with any term or condition of this Agreement (whether or not such failure or the specific term or condition is material).  

7.2   Obligations upon Termination.  

Upon termination of this Agreement, the license granted to Customer shall immediately terminate and Customer shall:

(i)   promptly return to Licensors all copies of the Software and all documentation associated therewith;

(ii)  immediately discontinue any and all use of the Software;

(iii)  immediately erase, remove or destroy from any and all equipment all electronic or machine-readable copies of the Software;

(iv) certify in writing to Licensors that Customer has completed the foregoing and that no copies of the Software exist in Customer’s possession or control and Customer has complied with Customer’s obligations set forth in this Agreement if so requested by Licensors; and

(v)  comply with its obligations set forth in this Agreement.

Termination of this Agreement shall not limit either party from pursuing other remedies available to it (to the extent such other remedies are not expressly limited hereunder), including injunctive relief.

7.3   Survival.  

Sections 4.2, 4.3, 5 7.3 and 8 and any provision of this Agreement related to confidentiality or which by its terms provides for survival shall survive the expiration or termination of this Agreement.  

8.   General Provisions.  

8.1   Notices.  

All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to:

(i)         if to the Customer: the address provided by Customer when ordering the Software and

(ii)        if to Licensors:  the address provided by Licensors when providing the Software.  

Either party may substitute their address from time to time by written notice to the other and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery.   All Limited Support or other notices relating to the usage of the Software will be provided by Licensors via either telephone or e-mail.  

8.2.   Governing Law; Severability.  

This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the U.S. and of the State of Tennessee, without giving effect to provisions thereof regarding conflict of laws.  Each party hereto hereby submits to the exclusive jurisdiction of the United States District Court for the Middle District of Tennessee and of any Tennessee state court sitting in Nashville, Tennessee, for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby.   Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.   All agreements, clauses and covenants contained herein are severable, and in the event any of them shall be held to be unconstitutional, invalid, illegal, or unenforceable, the remainder of this Agreement shall be interpreted as if such unconstitutional, invalid, illegal or unenforceable agreements, clauses or covenants were not contained herein.  

8.3.   Integration; Waiver; Modification.  

The parties hereto acknowledge and agree that they have read this Agreement in its entirety and understand and agree to be bound by all of its terms and conditions, and further agree that this Agreement and any exhibits or schedules hereto constitute a complete and exclusive statement of the understanding between the parties with respect to the subject matter hereof, which supersede any and all other communications between the parties, whether written or oral.   Any prior agreements, promises, negotiations or representations related to the subject matter hereof not expressly set forth in this Agreement, or any exhibits or schedules hereto, are of no force and effect.   The failure by either party to exercise any right provided hereunder shall not be deemed a waiver of such right.   This Agreement may be amended, modified or supplemented only by a writing signed by the parties to this Agreement.   Such amendments, modifications or supplements shall be deemed as much a part of this Agreement as if so incorporated herein.  

8.4.   Independent Contractor.  

Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the Customer and Licensors.  

8.5.   Force Majeure.  

Neither party hereto shall be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation, acts of God, war, terrorism, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers.  

8.6   Import/Export Restrictions.  

Customer shall comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and shall not export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals.   If this Software is or is deemed to be exported from the United States, it shall be exported in accordance with the requirements of the U.S. Export Administration Regulations.   Diversion contrary to U.S. law is prohibited.   Neither the Software nor the underlying information or technology may be downloaded or otherwise exported or re-exported

(i)   into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or

(ii)  to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Denied Persons List, or the U.S. Commerce Department’s Entity List.

Customer agrees to the foregoing and represents and warrants that it complies with these conditions.  

8.7   U.S. Government End-Users.  

The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein.  

8.8   Licensee Outside the U.S.  

If Customer is located outside the U.S., then the provisions of this Section 8.8 shall apply:

(i)   Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattache, soient rediges en langue anglaise.   (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and

(ii)  Customer is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and Customer represents that it has complied with any applicable laws and regulations or registration procedures required by applicable law to make this Agreement enforceable.