BY CLICKING ON THE “ACCEPT” OR “CONTINUE” BUTTON, YOU “LICENSEE” REPRESENT AND WARRANT THAT YOU FULLY UNDERSTAND AND AGREE TO COMPLY WITH ALL OF THE FOLLOWING TERMS AND CONDITIONS, AND THAT FAILURE TO ABIDE BY THESE TERMS AND CONDITIONS MAY RESULT IN LEGAL ACTION AGAINST YOU “LICENSEE”. IF YOU “LICENSEE” HAVE ANY QUESTIONS AS TO THESE TERMS AND CONDITIONS, WE ENCOURAGE YOU “LICENSEE” TO SEEK INDEPENDENT COUNSEL PRIOR TO CLICKING ON THE “ACCEPT” OR “CONTINUE” BUTTON.
These terms and conditions constitute a legally binding agreement (“Agreement”) between (a) you, the “Licensee”, and (b) Carnegie Mellon University acting through its Software Engineering Institute (“SEI”) with respect to the terms and conditions under which CMU is willing to grant Licensee permission to use those certain materials known as the “SMART Materials” which are made available for download after agreeing to this Agreement.
Upon clicking on the “Accept” or “Continue” button, Licensee is granted a non-exclusive, world-wide right to use the SMART Materials and to create and use for commercial purposes derivative works of the SMART Materials, all in accordance with the terms specified in this Agreement.
This work was created in the performance of Federal Government Contract Number F19628-00-C-0003 with Carnegie Mellon University for the operation of the Software Engineering Institute, a federally funded research and development center. The Government of the United States has a royalty-free government-purpose license to use, duplicate, or disclose the work, in whole or in part and in any manner, and to have or permit others to do so, for government purposes pursuant to the copyright license under the clause at 252.227-7013.
ANY LICENSED MATERIAL IS PROVIDED ON AN “AS IS” BASIS. SEI MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY, EXCLUSIVITY OR RESULTS OBTAINED FROM LICENSEE’S USE OF ANY INTELLECTUAL PROPERTY DEVELOPED UNDER THIS AGREEMENT, NOR SHALL ANY PARTY HERETO BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES SUCH AS LOSS OF PROFITS OR INABILITY TO USE SAID INTELLECTUAL PROPERTY OR ANY APPLICATIONS AN/OR DERIVATIONS THEREOF. SEI MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO FREEDOM FROM PATENT, TRADEMARK, OR COPYRIGHT, INFRINGEMENT, OR THEFT OF TRADE SECRETS AND DO NOT ASSUME ANY LIABILITY HEREUNDER FOR ANY INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT ARISING FROM THE USE OF THE DELIVERABLES, INFORMATION, INTELLECTUAL PROPERTY, OR OTHER PROPERTY OR RIGHTS GRANTED TO IT OR PROVIDED BY IT HEREUNDER. LICENSEE AGREES THAT IT WILL NOT MAKE ANY WARRANTY ON BEHALF OF SEI EXPRESSED OR IMLIED, TO ANY PERSON CONCERNING THE APPLICATION OF OR THE RESULTS TO BE OBTAINED WITH THE SOFTWARE UNDER THIS AGREEMENT.
Indemnification. Licensee hereby agrees to defend, indemnify, and hold harmless Carnegie Mellon University, its trustees, officers, employees, and agents from all claims or demands made against them (and any related losses, expenses, or attorney's fees) arising out of, or relating to Licensee’s and/or its sublicensees' negligent use or willful misuse of or negligent conduct or willful misconduct regarding Intellectual Property, facilities, or other rights or assistance granted by SEI under this Agreement, including, but not limited to, any claims of product liability, personal injury, death, damage to property, or violation of any laws or regulations.
Term. This Agreement is effective until terminated. Licensee may terminate this Agreement by ceasing use of the SMART Materials and deleting any and all copies and/or derivative works made in whole or in part of the SMART Materials. SEI may terminate this Agreement if Licensee breaches any of the terms and conditions contained in this Agreement. Upon termination for any reason, Licensee shall delete the SMART Materials and any and all copies and/or derivative works. The provisions that would naturally survive termination of this Agreement will do so, including but not limited to the “no warranty,” “indemnification,” dispute procedures, and choice of law.
Disputes. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflicts of laws provisions. All claims and/or controversies of every kind and nature arising out of or relating to this Agreement, including any questions concerning its existence, negotiation, validity, meaning, performance, non-performance, breach, continuance or termination shall be settled (1) at CMU’s election, by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and, in such case (a) the arbitration proceedings shall be conducted before a panel of three arbitrators, with each party selecting one disinterested arbitrator from a list submitted by the AAA and the two disinterested arbitrators selecting a third arbitrator from the list, (b) each party shall bear its own costs of arbitration, (c) all arbitration hearings shall be conducted in Allegheny County, Pennsylvania, and (d) the provisions hereof shall be a complete defense to any suit, action or proceeding instituted in any Federal, state or local court or before any administrative tribunal with respect to any claim or controversy arising out of or relating to this Agreement and which is arbitrable as provided in this Agreement, provided that either party may seek injunctive relief in a court of law or equity to assert, protect or enforce its rights in any intellectual property and/or proprietary or confidential information as described in this Agreement, or (2) in the event that CMU does not elect binding arbitration as permitted in point (1) above, exclusively in the United States District Court for the Western District of Pennsylvania or, if such Court does not have jurisdiction, in any court of general jurisdiction in Allegheny County, Pennsylvania and each party consents to the exclusive jurisdiction of any such courts and waives any objection which such party may have to the laying of venue in any such courts.