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VIZSWAT License Agreement

This Agreement is between you (LICENSEE) and the Texas AgriLife Research, a member of The Texas A&M University System and an agency of the State of Texas, with principal offices in College Station, Texas, collectively referred to as “Parties” and individually as “Party.”

Background

A.

W. F. Baird & Associates, Ltd. (BAIRD) has developed software (VIZSWAT) for the purposes of assisting in the analysis and understanding of engineering projects that uses AgriLife Research’s Soil and Water Assessment Tool (SWAT).

B.

BAIRD has granted AgriLife Research the exclusive right to sublicense VIZSWAT for the benefit of the public.

C.

AgriLife Research is willing to grant, and LICENSEE is willing to accept, a license to use VIZSWAT upon the terms below.

The Parties agree as follows:

ARTICLE I - DEFINITIONS

1.01

“SOFTWARE” means VIZSWAT, proprietary software in executable form used to assist in the analysis and understanding of engineering projects that uses AgriLife Research’s Soil and Water Assessment Tool (SWAT) and any UPGRADES or ENHANCEMENTS provided by AgriLife Research to LICENSEE.

1.02

“EFFECTIVE DATE” shall mean the date this Agreement has been executed by the last Party.

1.03

“DOCUMENTATION” means the manuals, user documentation, and other related materials about SOFTWARE which are furnished to LICENSEE by AgriLife Research.

1.04

“ENHANCEMENTS” means minor version upgrades (e.g. version 1.0 to 1.1), minor modifications, features, or functionalities of SOFTWARE made available by AgriLife Research without additional fees.

1.05

“UPGRADES” means major version upgrades (e.g., version 1.X to 2.0), major modifications, new features, or new functionalities of SOFTWARE for which AgriLife Research requires a separate license agreement.

1.06

“DONGLE” shall mean a hardware device that plugs into a parallel or a USB port, allowing for a floating license for VIZSWAT.

ARTICLE II - LICENSE GRANT

2.01

Grant. Subject to the terms of this Agreement, AgriLife Research grants LICENSEE a nonexclusive and nontransferable license limited to internal use of SOFTWARE only at the specified SITE.

2.02

Upgrades. UPGRADES require a separate one-time payment of $100.00. AgriLife Research has sole discretion in the release of ENHANCEMENTS and UPGRADES and in designating whether each version upgrade is an ENHANCEMENT or an UPGRADE.

2.03

License to DOCUMENTATION. Subject to the terms of this Agreement, AgriLife Research grants LICENSEE a nonexclusive license to use, reproduce, and translate DOCUMENTATION for its internal purposes only.

2.04

Ownership. This Agreement does not provide LICENSEE with title or ownership to SOFTWARE or DOCUMENTATION, but only a right of limited use. LICENSEE may not remove any copyright notices or trademarks of AgriLife Research or BAIRD from SOFTWARE or DOCUMENTATION.

ARTICLE III - CONSIDERATION

3.01

Annual license fee. In order to maintain the license granted above, LICENSEE must pay AgriLife Research an annual license fee in the amount shown in Exhibit A, attached and made part of this Agreement. This license fee is due upon each anniversary of the EFFECTIVE DATE during the term of this Agreement. Payments must be in U.S. dollars.

3.02

Floating License Fee. LICENSEE must make a one-time payment in the amount shown in Exhibit A, attached and made part of this Agreement.

ARTICLE IV – LICENSEE RESPONSIBILITIES

4.01

Use of SOFTWARE. LICENSEE may not knowingly distribute, sublicense, provide access to or otherwise transfer SOFTWARE or DOCUMENTATION to any third party, or make any copies, except for normal backups for recovery purposes, without the advance written consent of AgriLife Research. LICENSEE may use SOFTWARE solely for activities associated with its research and/or educational activities, and not in any commercial endeavor. SOFTWARE is confidential and trade secret and is the exclusive property of BAIRD.

4.02

Modifications. LICENSEE may not modify, translate, reverse engineer, disassemble, or generate derivative works of SOFTWARE without the advance written consent of AgriLife Research.

4.03

Notices. LICENSEE must retain all original copyright and similar notices of ownership in every copy of SOFTWARE.

ARTICLE V – AgriLife Research RESPONSIBILITIES

5.01

Support. AgriLife Research does not warrant that it will provide technical maintenance and support to SOFTWARE during the term of this Agreement.

5.02

SOFTWARE Licensed "As Is." SOFTWARE is supplied "as is" without any accompanying services. AgriLife Research DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

5.03

Error Corrections. AgriLife Research may, in its sole discretion, provide LICENSEE with error corrections, bug fixes, or patches to SOFTWARE in executable form to the extent available.

ARTICLE VI – TERM AND TERMINATION

6.01

Expiration. This Agreement, unless sooner terminated as provided below or extended by mutual agreement of the Parties, will remain in effect for a period of five years.

6.02

Termination. If either Party materially breaches this Agreement, the other may give written notice of termination to the breaching Party. If termination is due to a material breach of Article II or IV, termination will be effective on notice. In all other cases, the breaching Party will have a period of 90 days from receipt of notice to cure the breach. If the breaching Party does not cure the breach within this period, the termination of this Agreement will become effective without further notice.

6.03

Obligation on Termination. Within 10 days after termination of this Agreement, LICENSEE must cease and desist all use of SOFTWARE and DOCUMENTATION and return to AgriLife Research all full or partial copies of SOFTWARE and DOCUMENTATION in LICENSEE’s possession or under its control.

6.04

Matters Surviving Termination. All accrued obligations and claims, or causes of action for breach of this Agreement will survive termination of this Agreement. Obligations of confidentiality will survive termination of this Agreement. This section controls in the case of a conflict with any other section of this Agreement.

ARTICLE VII - REPRESENTATIONS AND INDEMNIFICATIONS

7.01

Indemnification. LICENSEE MUST DURING AND AFTER THE TERM OF THIS AGREEMENT INDEMNIFY, DEFEND, AND HOLD HARMLESS BAIRD AND AgriLife Research, THE TEXAS A&M UNIVERSITY SYSTEM, ITS REGENTS, OFFICERS, AND EMPLOYEES AGAINST ANY CLAIM, PROCEEDING, DEMAND, LIABILITY OR EXPENSE (INCLUDING LEGAL EXPENSES AND REASONABLE ATTORNEYS' FEES) WHICH RELATES TO INJURY TO PERSONS OR TO PROPERTY, ANY ACTION BROUGHT BY A THIRD PARTY ALLEGING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR AGAINST ANY OTHER CLAIM, PROCEEDING, DEMAND, EXPENSE, OR LIABILITY OF ANY KIND RESULTING FROM LICENSEE’S USE OF SOFTWARE OR DOCUMENTATION OR ARISING FROM ANY OBLIGATION OF LICENSEE UNDER THIS AGREEMENT.

7.02

Representation and Disclaimer of Warranties. AgriLife Research represents that it has been granted an exclusive right to license SOFTWARE from BAIRD, and has the full right and power to grant the license in paragraph 2.01, and that there are no outstanding agreements, assignments, or encumbrances inconsistent with this Agreement. SOFTWARE IS PROVIDED “AS-IS.” BAIRD AND AgriLife Research MAKE NO OTHER REPRESENTATIONS AND EXTEND NO OTHER WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BAIRD AND AgriLife Research DO NOT ASSUME ANY OBLIGATIONS REGARDING INFRINGEMENT OF COPYRIGHTS OR OTHER RIGHTS OF THIRD PARTIES DUE TO LICENSEE’S ACTIVITIES UNDER THIS AGREEMENT, OR REGARDING ANY USE OF DERIVATIVE WORKS OR ANY PORTION OR WITH RESPECT TO DAMAGES WHICH MAY RESULT.

7.03

Exclusive Remedy and Waiver of Damages. THE AGGREGATE LIABILITY OF BAIRD, ITS SUPPLIERS, AND AgriLife Research FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH SOFTWARE OR THIS AGREEMENT MAY NOT EXCEED THE AMOUNT ACTUALLY RECEIVED FROM LICENSEE FOR SOFTWARE, WITHOUT REGARD TO WHETHER A CLAIM IS BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL BAIRD, ITS SUPPLIERS, OR AgriLife Research BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, OR BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF BAIRD OR AgriLife Research HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

ARTICLE VIII - NOTICES

8.01

Notices. Notices or other communications required by this Agreement will be sufficiently made or given if mailed by certified First Class United States mail, postage pre-paid, or by commercial carrier (e.g., FedEx, UPS, Airborne, etc.) when the carrier maintains receipt or record of delivery, addressed to the address stated below, or to the last known address of the intended recipient.
If to AgriLife Research:

Executive Director
Technology Licensing Office
3369 TAMU
College Station, Texas, USA 77843-3369

ARTICLE IX - MISCELLANEOUS PROVISIONS

9.01

Export Controls. LICENSEE must abide by the export control laws and regulations of the United States. Failure to obtain an export control license or other authority from the Government may result in criminal liability under U.S. laws.

9.02

Non-Use of Names. LICENSEE may not use the names or any adaptations of the names of BAIRD, AgriLife Research, The Texas A&M University System or of any of its employees or members in any advertising, promotional or sales literature without the advance written consent of BAIRD or AgriLife Research in each case, except that LICENSEE may state that the SOFTWARE is licensed to LICENSEE by AgriLife Research.

9.03

Assignment. This Agreement, with the rights and privileges it creates, is assignable only with the written consent of both Parties.

9.04

Entire Agreement. This Agreement contains the entire understanding of the Parties regarding the SOFTWARE, and supersedes all other written and oral agreements between the parties regarding the SOFTWARE. It may be modified only by a written amendment signed by the Parties.

9.05

Governing Law. The Constitution and laws of the State of Texas, USA, govern this Agreement.

9.06

Headings. Headings are solely for convenience of reference and are not part of, and may not be used to construe, this Agreement.

9.07

Severability. If any provision of this Agreement is invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.

9.08

Non-Waiver. AgriLife Research is an agency of the State of Texas and nothing in this Agreement waives or relinquishes the right of AgriLife Research to claim any exemptions, privileges, and immunities as may be provided by law.

LICENSEE indicates its intent to agree to the terms of this Agreement by downloading SOFTWARE.