SOFTWARE DISTRIBUTION AGREEMENT 

FCMPASS, v3
Release date: September 2020 


Definitions: 

The term SOFTWARE throughout this agreement means the machine readable, binary, object code form, and the related documentation for FCMPASS, v3[0], a software package that is designed to allow flow cytometer calibration for small particles.  The term RECIPIENT means an academic or not-for-profit party that receives the SOFTWARE.  The term RECIPIENTS INVESTIGATOR means the individual affiliated with RECIPIENT who downloads the SOFTWARE. The term PROVIDER means the National Cancer Institute (NCI), a participating institute of the National Institutes of Health (NIH), and an agency of the United States Government.

By downloading or otherwise receiving the SOFTWARE, RECIPIENT may use the SOFTWARE subject to RECIPIENTs and RECIPIENTS INVESTIGATOR agreement to the following terms:

1. THE SOFTWARE SHALL NOT BE USED IN THE TREATMENT OR DIAGNOSIS OF HUMAN SUBJECTS.  RECIPIENT is responsible for compliance with all laws and regulations applicable to the use of the SOFTWARE.

2. RECIPIENT and/or RECIPIENTS INVESTIGATOR shall not distribute the SOFTWARE, in whole or in part to third parties or individuals not under RECIPIENT INVESTIGATORs direct supervision without the express advance written approval of PROVIDER.

3. The SOFTWARE may be used for research, academic, and educational purposes only and not to assess the efficacy of medical drugs or devices. The SOFTWARE may not be used for commercial purposes. RECIPIENT and RECIPIENTS INVESTIGATOR will not license or sell or use the SOFTWARE for commercial purposes or applications for which a commercialization license would be required. For the sake of clarity, commercial purposes shall include uses of the SOFTWARE by any organization, including RECIPIENT, to perform contract research, to screen compound libraries, to produce or manufacture products for general sale, or to conduct research activities that result in any sale, lease, license, or transfer of the SOFTWARE to a for-profit organization. Should RECIPIENT desire to use the SOFTWARE in a manner not permitted under this Agreement, please email joshua.welsh@nih.gov. 

4. The SOFTWARE that is distributed pursuant to this Agreement has been created by United States Government employees. In accordance with Title 17 of the United States Code, section 105, the SOFTWARE is not subject to copyright protection in the United States.  Other than copyright, all rights, title and interest in the SOFTWARE shall remain with PROVIDER.  

5. RECIPIENT and/or RECIPIENTS INVESTIGATOR shall not modify, extend, decompile, make derivatives of, merge, publish, reverse engineer or distribute the SOFTWARE without written permission from PROVIDER.
 
6. RECIPIENT and/or RECIPIENTS INVESTIGATOR may publish or otherwise publicly disclose the results of using the SOFTWARE. RECIPIENT and/or RECIPIENTS INVESTIGATOR agrees to acknowledge PROVIDERs contribution of the SOFTWARE in all written publications containing any data or information regarding or resulting from use of the SOFTWARE. 

7. THE SOFTWARE IS PROVIDED "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE DISCLAIMED. IN NO EVENT SHALL PROVIDER OR THE INDIVIDUAL DEVELOPERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  PROVIDER makes no representations that the use of SOFTWARE will not infringe any patent or proprietary rights of third parties.

8. RECIPIENT may, on an as-needed basis, send to PROVIDER reports regarding the application of the SOFTWARE and the effectiveness and problems encountered in using the SOFTWARE, without disclosing RECIPIENTs confidential information. Information from general reports may be used by PROVIDER to enhance the capabilities of the SOFTWARE. Reports can be forwarded to PROVIDER at one of the following addresses: joshua.welsh@nih.gov or jennifer.jones2@nih.gov

9. No indemnification for any loss, claim, damage, or liability is intended or provided by either Party under this Agreement.  Each Party shall be liable for any loss, claim, damage, or liability that said Party incurs as a result of said Party's activities under this Agreement, except that Provider, as an agency of the United States, assumes liability only to the extent as provided under the Federal Tort Claims Act (28 U.S.C. Chapter 171 Sections 2671-2680).

10. PROVIDER does not endorse the results of any analyses derived from the SOFTWARES use, and RECIPIENT and/or RECIPIENTS INVESTIGATOR agrees not to claim, infer, or imply endorsement of such results and analyses by PROVIDER and the United States Government, or any of its organizational units, contractors or employees.  RECIPIENT agrees not to use any trademarks, service marks, trade names, logos or product names of NCI or NIH to endorse or promote products derived from the SOFTWARE without specific, prior and written permission.

11. Title in the SOFTWARE shall remain with PROVIDER.  It is understood that nothing herein will be deemed to constitute, by implication or otherwise, the grant to either party by the other of any license or other rights under any patent, patent application or other intellectual property right or interest.  PROVIDER reserves the right to distribute the SOFTWARE to others and to use it for PROVIDERs own purposes.   PROVIDER explicitly retains all rights to use the SOFTWARE for any purpose, to have it used on PROVIDERs behalf or to allow others to use it.


