BETWEEN NATIONAL RESEARCH COUNCIL OF CANADA 1200 Montreal Road, Ottawa, Ontario, K1A 0R6, Canada (called "NRC"), OF THE FIRST PART
AND you (the "Licensee"), OF THE SECOND PART
1. NRC has developed a Hydraulic Modelling Framework identified as “Blue Kenue” (formerly identified as “EnSimTelemac”) (called “the Software”) which NRC is willing to make available in executable format to run on a Windows XP personal computer. The term “Software” includes both original and modified versions of computer programs and computer data, and includes printed matter intended to explain or assist the use of parts of the Software.
2. The Licensee desires to use this Software under licence from NRC.
IN CONSIDERATION OF the preceding recitals and of the following terms and conditions, the Parties agree as follows:
1.0 DELIVERY BY NRC AND GRANT OF LICENCE
1.1 NRC grants at no cost to the Licensee a non-exclusive, non-transferable licence touse the Software for the Licensee’s own internal use and to provide services to its clients. All proprietary interest, right, copyright, translation, registered trademark, intellectual property and possible patents filed in relation with the Software are and remain definitely owned by NRC.
2. 0 OBLIGATIONS OF THE LICENSEE
2.1 In all reports, publications and presentation materials related to the studies carried out using the Software, the Licensee shall report both the name and the origin of the software. The name used shall be “Blue Kenue”. The origin shall be stated as “Canadian Hydraulics Centre of the National Research Council Canada”.
2.2 If a component of the Software is not provided by NRC in source code, the Licensee must not attempt disassembly or reverse engineering to obtain the source code.
3.0 PAYMENT OF LICENSE FEE
3.1 There is no fee for the license to the Software granted by this Agreement. However, future upgrades or derivative works, if any, may be subject to a license fee.
4.0 ENTRY INTO FORCE AND TERMINATION
4.1 This Agreement enters into force when the Software is installed by the Licensee.
4.2 This Agreement continues indefinitely unless it is terminated by the provisions of this Article 4.
4.3 This Agreement terminates forthwith if the Licensee takes the benefit of any statute relating to winding up, bankruptcy, insolvency, or orderly payment of debts, or if a receiver is appointed for the Licensee.
4.4 Termination does not prejudice accrued rights of either party.
5.0 LIMITED WARRANTY
5.1 NRC does not warrant the Software to be correct, free from defects, suitable for any purpose, or compatible with any model of computer.
5.2 Because software is inherently complex, it is the Licensee’s responsibility to verify the Software and any work produced using the Software. NRC rejects all liability and responsibility relating to the consequences of using the Software. In no event will NRC be liable for indirect, incidental, economic or consequential damages arising out of the use of the Software, including, without limitation, damages or costs relating to loss of revenue or profits, business, goodwill, data or computer programs, or claims by a third party. Except for representations and warranties expressly made in this Agreement, the Software is provided on an “as is” basis, and there are no representations or warranties, express or implied by statute, including, without limitation, any with respect to:
(a) Merchantability or fitness for any purpose;
(b) Operational state, character, quality or freedom from defects.
5.3 The Licensee shall indemnify and save harmless NRC, their employees and agents from and against, and be responsible for:
(a) All claims, demands, losses, damages, costs including solicitor and client costs, actions, suits or proceedings brought by any third party, that are in any manner based upon, arising out of, related to, occasioned by, or attributable to the use of the Software
(b) Other costs, including extra-judicial costs, of NRC defending any such action or proceeding, which NRC shall have the right to defend with counsel of their choice.
5.4 NRC has not knowingly infringed on any copyright. If the Licensee receives or becomes aware of any claim or assertion by a third party that the software licensed under this Agreement constitutes an infringement or other violation of third party’s patents or other intellectual property, the Licensee shall notify NRC and shall provide NRC with all the details relating to the allegation, within 15 days of its knowledge of the allegation. NRC shall promptly enter into discussions with the third party to obtain any additional rights required, such as may arise if a third party’s patent emerges. If necessary rights are not obtainable on commercially reasonable terms, NRC agrees to cancel the licensing agreement if requested by the Licensee.
6.0 LIMITED RELATIONSHIP BETWEEN PARTIES
6.1 This Agreement does not create the relationship of principal and agent, partnership, or joint venture between the Parties. This Agreement does not create any relationship other than that of Licenser and Licensee.
7.0 GENERAL TERMS AND CONDITIONS
7.1 This Agreement supersedes all prior communications, negotiations and agreements, written or oral, concerning the same subject matter.
7.2 No amendment or waiver of this Agreement is effective unless it is in writing, signed by both Parties, and specifically states the intention to affect this Agreement.
7.3 It is a condition of this Agreement that no member of the House of Commons shall be admitted to any share or part of this Agreement or to any benefit to arise from it.
7.4 The Licensee warrants
(a) That no bribe, gift, or other inducement has been paid, given, promised or offered to any person for, or with a view to, the obtaining of this Agreement by the Licensee, and
(b) That the Licensee has not employed any person to solicit or secure this Agreement upon any agreement for commission, percentage, brokerage or contingent fee.
7.5 No person will receive a direct benefit from this contract if that person is subject to, and not in compliance with, a federal Conflict of Interest and Post-Employment Code, either the one for Public Office Holders, or for the Public Service, or for NRC Employees.
7.6 Any notice required or permitted by this agreement, unless a different address is herein specified or is subsequently notified to the other Party in writing, must be sent by registered mail to the address stated at the beginning of this Agreement where the Parties are identified.
7.7 This Agreement is made in Ontario, Canada and construed according to the laws of Ontario, Canada.