(Q)SAR APPLICATION TOOLBOX: The OECD (Q)SAR Toolbox for Grouping Chemicals into Categories
END USER LICENCE AGREEMENT
Version 4.4 (9 October 2020)
PLEASE READ AND REVIEW THIS END USER LICENCE AGREEMENT (HEREINAFTER “THE AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE (Q)SAR APPLICATION TOOLBOX SOFTWARE AND/OR RELATED PRODUCTS. BY DOWNLOADING, USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE (Q)SAR APPLICATION TOOLBOX SOFTWARE AND/OR RELATED PRODUCTS, YOU (“LICENSEE”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; THESE INCLUDE THE LIMITATIONS ON: USE CONTAINED IN ARTICLE 2; TRANSFERABILITY IN ARTICLE 2; WARRANTY IN ARTICLE 6; AND LIABILITY IN ARTICLE 6. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.
YOU, THE LICENSEE, FURTHER ACCEPT THAT ANY PERSON WHO DOWNLOADS THE (Q)SAR APPLICATION TOOLBOX SOFTWARE AND/OR RELATED PRODUCTS ON YOUR BEHALF HAS THE AUTHORITY TO DO SO. BREACH OF THIS AGREEMENT MAY RESULT IN YOU BEING DENIED ACCESS TO THE (Q)SAR APPLICATION TOOLBOX SOFTWARE AND YOUR LICENSE TO USE THE (Q)SAR APPLICATION TOOLBOX SOFTWARE BEING REVOKED.
1. DEFINITIONS
1.1. “Licensor” or “OECD” shall mean the Organisation of Economic Co-operation and Development (OECD) having its seat at 2, rue André Pascal 75775 Paris CEDEX 16.
1.2. “Licensee” shall mean you, the natural persons or legal entities represented, identified as such by downloading the Software. If you download or Use the Software not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “Licensee” means your entity and you are binding your entity to this Agreement.
1.3. “Software” shall mean the computer software system named “(Q)SAR APPLICATION TOOLBOX” or “(Q)SAR TOOLBOX” to facilitate the identification of similar chemicals with the aim to make reliable predictions reports on toxicological, ecotoxicological and environmental fate properties, or any portion thereof. The Software also means all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media with which this Agreement is provided, as well as any future versions, improvements, developments, programming fixes, updates, and upgrades of the Software. The Software includes the Donated Modules and Donated Databases.
1.4. “Chassis” shall mean the part of the Software that controls the interfaces and interactions with the (Q)SAR APPLICATION TOOLBOX end-users, and the sequential execution of specific Modules that apply QSAR methods to the task of filling data gaps, as well as any future versions, improvements, developments, programming fixes, updates and upgrades of the Software.
1.5. “Database” shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means, included in the Software.
1.6. ““Source Code” shall mean the Software’s computer programming code in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation, meaning the preferred form of the covered code for making modifications to it, including all Modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an executable Object Code, or source code differential comparisons against the original code
1.7. “Object Code” shall mean each element of the Software in binary form, resulting from the compilation of Source Code by computer or compiler into machine executable code and which is in a form of computer program not convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by a computer.
1.8. “Module” shall mean the Object Code of the Software which performs specific computational functions.
1.9. “Donated Modules” and “Donated Databases” shall mean Modules or Databases which have been made available by Licensor or third parties for inclusion and use as part of the Software. This does not include Databases or Modules that are made available by the “Toolbox Repository of Extensions”.
1.10. “Derivative Works” shall mean any software program and any support materials, including but not limited to manuals, flow charts, and specifications, derived from, written and/or produced by, or incorporating any part of the Software.
1.11. “Use” or “Used” in connection with the Software, shall mean storing any portion of the Software in a machine, and/or transmitting any portion of the Software to a machine for processing and/or compiling, executing or interpreting any machine instructions contained in the Software, and/or displaying any portion of the Software in connection with the processing of such machine instructions.
1.12. “Permitted Purpose” shall mean the purpose of developing software or code to interface and connect a Licensee software application with the Software using the Chassis.
1.13. “Software Extensions” shall mean the individual, separate Database, calculator, profiler, (Q)SAR model, software program or application created, designed and developed by a third party developer (the “Developer”) or Licensor to interface and work with the Software and made available on the “Toolbox Repository of Extensions” or connected to the Software via the web Application Programme Interface (API).
1.14. “Toolbox Repository of Extensions” shall mean the public website made available for digital distribution of Software Extensions.
2. RIGHTS AND OBLIGATIONS REGARDING THE SOFTWARE
Subject to Licensee’s compliance with the terms of this Agreement, Licensor grants Licensee a non-exclusive, non-transferable, non-sublicensable, revocable and royalty-free licence to Use the Software.
The Software may include one or more Donated Databases and Modules, libraries, files or other items, for which Licensor grants Licensee a right of use, subject to Article 6.7 below.
Licensor reserves the right to discontinue access to one or more Donated Databases and Modules, libraries or other items and/or limit or remove the use of certain features or parts of Donated Databases and Donated Modules, libraries or other items at any time without notice or liability. As far as the rest of the Software is concerned, see Article 5 below.
2.1. Licensee may:
a) Use the Software for itself or on behalf of a third party to profile chemicals, gather data, identify similar chemicals, apply data gap filling techniques and produce reports. The Use of the Software is not restricted to a specific national, regional or international legal requirement;
b) Use the Software through a server or a network;
c) Use and promote the Software in relation to services provided to third parties, such as:
i. Preparing and executing training sessions to teach and promote the proper Use of the Software;
ii. Offering support in relation to the Software;
iii. Providing consultancy on the adequate deployment, configuration and Use of the Software;
d) Implement synchronous interfaces to the Software, using only the Chassis;
e) Use the Software or screenshots of it in demonstrations, presentations, trade shows, publications or similar audience targeted events or artefacts to promote its widespread use.
2.2. Licensee shall not itself nor allow any third party to:
a) Derive profits from the Software by including, modifying or interfacing the Software, particularly in relation to other software, electronic files or data processing equipment, and more particularly by implementing a synchronous interface to the Software;
b) Rent, lease, sublicense, assign, transfer or grant any kind of rights regarding the Software in any form to any third party;
c) Modify, translate, reverse engineer, decompile, disassemble, create Derivative Works based on, or copy the Software and/or the Chassis (except for one back-up and archival copy mentioned under f) below) ;
d) Remove or alter any Software identification, proprietary notices, labels or trademarks which appear on or in the Software;
e) Use the back-up and archival copy for any purpose other than to replace the original copy in the event it is destroyed or becomes defective;
f) Provide to any third parties electronic files, including back-up files, archive files, electronic identification files, copies of the Software;
g) Transfer directly or indirectly the Software or any element thereof to any country to which such transfer would be prohibited by any applicable export control laws.
3. RIGHTS AND OBLIGATIONS REGARDING THE CHASSIS
3.1. Subject to Licensee’s compliance with the terms of this Agreement, Licensor grants to Licensee a limited, revocable, non-exclusive, non-assignable, non-sublicensable, non-transferable right to use the Chassis for a Permitted Purpose, provided that Licensee’s use does not adversely affect the functionality or performance of the Software or any other services provided by Licensor.
3.2. Licensee shall not use the Chassis in any software application that is actually or potentially fraudulent or inappropriate, or contrary to the Agreement.
3.3. Licensee shall not remove or hide, modify, take over or otherwise alter the Chassis. Licensee shall comply with the requirements and specifications relating to application design, use and presentation of look and feel of the Software.
3.4. Licensee shall not distribute the Chassis online through website(s) that is/are in any way similar to Licensor’s website, or infringe the intellectual property rights of Licensor or any third party or use Licensor’s trademarks or words describing Licensor’s Software, products or services as the registered URL for website(s).
4. OWNERSHIP, LOGOS AND CONFIDENTIALITY
4.1. Licensee shall not acquire any right, title or interest (including without limitation, copyright or any other right in the nature of copyright or any other intellectual property right whatsoever) in the Software and/or the Chassis. Licensor reserves all rights that it does not expressly grant to Licensee in this Agreement.
4.2. The Software and the Chassis are and remain the intellectual property of Licensor and its licensors. No right or licence under any patent application, issued patent, know-how or other proprietary information is granted or shall be granted by implication to Licensee.
4.3. Licensee understands and agrees that the Donated Databases or Donated Modules contained in the Software and controlled by the Chassis may be owned either by Licensor and/or third parties, and that they might be subject to separate terms and conditions and/or disclaimers (see Article 6.7). The present Agreement will not, in any event, restrict in any way the separate sale or use of the Donated Modules or Donated Databases by their owners.
4.4. Trademarks, logos and trade names quoted on or in the Software and/or the Chassis are and remain the property of Licensor and/or its licensors. Any right under the Agreement is only granted on the absolute condition that all the legal specifications of the Software and/or the Chassis are properly complied with and properly referred to.
4.5. Nothing in this Agreement will give Licensee any right to use Licensor’s trademarks and logos, or make references to Licensor or Licensor’s products or services other than those explicitly stated below.
4.6. The structure, the organisation, the performances of the Software and/or the Chassis are valuable trade secrets and/or confidential information of Licensor and/or its licensors. Licensee agrees to hold these trade secrets and/or confidential information in confidence and use the information within the limits of this Agreement.
4.7. Licensee shall, at all times, maintain the value and reputation of the Software, Chassis and Licensor’s name.
4.8. Licensee may only use the following references to Licensor’s Chassis and Software:
i. “works with (Q)SAR APPLICATION TOOLBOX Software” or “works with (Q)SAR APPLICATION TOOLBOX”
ii. “uses (Q)SAR APPLICATION TOOLBOX Software” or “uses (Q)SAR APPLICATION TOOLBOX”
iii. “for (Q)SAR APPLICATION TOOLBOX Software” or “for (Q)SAR APPLICATION TOOLBOX”
iv. “works with QSAR TOOLBOX Software” or “works with QSAR TOOLBOX”
v. “uses QSAR TOOLBOX Software” or “uses QSAR TOOLBOX”
vi. “for QSAR TOOLBOX Software” or “for QSAR TOOLBOX”
4.9. The Chassis shall only use icons from Licensor’s archive of application icons in reference to Licensor.
4.10. Any feedback provided by Licensee to Licensor in respect of the Software and/or the Chassis may be freely used, copied, disclosed, licensed, assigned, distributed and exploited in any manner whatsoever by Licensor without any restriction or royalty based on intellectual property rights or otherwise. Feedback means any requirements, inputs, comments, responses, opinions and suggestions for modification or improvement in relation to the Software and/or the Chassis.
5. REVISIONS AND UPDATES OF THE SOFTWARE AND/OR THE CHASSIS
5.1. Licensor does not guarantee that it will offer any version enhancement and/or updates. Additionally, it does not guarantee the continuous availability of the Software and/or the Chassis.
5.2. Licensor may revise, modify or cease to provide the Software and/or the Chassis at any time without prior notice, and require Licensee to immediately cease using the Software and/or the Chassis.
5.3. If the Software and/or the Chassis are an update to a previous version of the Software and/or the Chassis, Licensee must possess a valid licence to such previous version in order to Use such update, where applicable. All updates are provided to Licensee on a licence exchange basis. Licensee agrees that by using an update, it voluntarily terminates its right to Use any previous version of the Software and/or the Chassis. Licensee acknowledges that Licensor does not have any obligation to support the previous versions of the Software and/or the Chassis.
6. DISCLAIMER OF WARRANTY AND LIABILITY
6.1. The Software and/or the Chassis and any services, support or assistance provided in respect thereof are provided “as is” without warranty of any kind, either express or implied, including, but not limited to, any implied warranty against infringement of third parties property rights, of merchantability and fitness for a particular purpose. Licensor has no obligation to provide technical support, maintenance, warranties or remedies for the Software and/or the Chassis. Licensor disclaims all guarantees as to the compatibility of the Software and/or the Chassis with any hardware, operating system, web browser, or other means of accessing the Software and/or the Chassis. Use of the Software and/or the Chassis, or any component thereof, is at Licensee’s sole risk.
6.2. Licensee agrees that Licensee is solely responsible for, and that Licensor has no responsibility to Licensee or to any third party for, any services, products and/or reports Licensee provides through the Software, and/or the Chassis. The entire risk as to the use, quality, and performance of the Software and/or the Chassis is with Licensee. Should the Software and/or the Chassis prove defective, Licensee, and not Licensor, assumes the entire cost of any consequences. In no event will Licensor be liable for any incidental, consequential, direct or indirect damages, including, but not limited to, any inaccuracies or errors in the Software and/or Chassis’s reports, loss of data, loss of opportunities, loss of profits, loss of revenues, interruption of business, or any other loss or injury, whether financial or non-pecuniary and howsoever caused, arising from the use of or inability to use the Software and/or the Chassis, irrespective of whether Licensor knew or should have known of the possibility of such damages.
6.3. Licensee agrees to indemnify and hold Licensor harmless from any claims, liabilities, costs, losses or damages, including legal fees, arising from or relating the use by Licensee of the Software and/or the Chassis and/or any breach by Licensee or any employees or agents under the control of Licensee of the terms of this Agreement herein.
6.4. Licensor is not responsible for any risks related to the use of the Internet. Thus, at the time of submitting the data, Licensee must be aware that other users of the Internet can possibly manage to visualise the data, and holds harmless Licensor for any breach in the security of the data.
6.5. Any dedicated terms and conditions and/or disclaimers governing the use of Donated Databases or Donated Modules are without prejudice to the terms of this Agreement covering Licensor’s disclaimer of warranty and liability and Licensor’s privileges and immunities.
7. SOFTWARE EXTENSIONS
By downloading, installing, reinstalling or using any Software Extensions created by a Developer or Licensor and made available to Licensee from the Toolbox Repository of Extensions or via the web Application Programming Interface, Licensee agrees to the same terms and conditions of this Agreement as those applicable to the Software, which will apply mutatis mutandis. This is unless the Software Extension is provided with a separate end user licence agreement and/or disclaimer, in which case that separate end user licence agreement and/or disclaimer will apply to and govern Licensee’s use of the Software Extension, subject to the limitations of Article 6.5.
8. PERSONAL DATA
Licensee is informed that, for the purpose of Use or access to the Software, the Chassis and the Toolbox Repository of Extensions, any personal data provided by Licensee is collected and processed by the European Chemical Agency in accordance with the Personal Data Protection Notice which can be consulted here.
9. CO-OPERATION BETWEEN THE PARTIES
9.1. Licensee agrees to promptly notify Licensor (ehs.contact@oecd.org of any Use of the Software by any third party which Licensee considers might be in breach (or abuse) of a patent, copyright, trade secret or any other proprietary right of Licensor or its licensors.
9.2. Licensor shall have the sole right to decide whether or not proceedings shall be brought in respect of such infringement.
9.3. Licensee agrees to reasonably cooperate with Licensor to prosecute any action brought by Licensor, all expenses being borne by Licensor and all damages which may be recovered being solely for the account of Licensor.
10. DURATION, AMENDMENT AND TERMINATION
10.1. This Agreement shall enter into force through acceptance of this Agreement by Licensee when downloading the Software either directly or indirectly via its representative. Licensee’s affirmative act of downloading the Software constitutes its full and unreserved acceptance of this Agreement.
10.2. Licensor reserves the right to modify the Agreement at any time. Any amendment made by Licensor will be notified via the Q(SAR) Toolbox Website (www.qsartoolbox.org) and/or the OECD website and will be effective immediately.
If such changes are not acceptable to Licensee, Licensee’s exclusive remedy shall be to immediately stop using the Chassis and/or the Software.
10.3. Licensor may terminate this Agreement at any time without cause upon written notice to Licensee.
10.4. This Agreement shall automatically terminate at Licensor’s sole discretion upon written notice to Licensee if Licensee is in breach of this Agreement. This termination shall not prevent Licensor from claiming any damages or exercising any further remedies against Licensee in respect of such breach.
10.5. Upon termination for any reason, Licensee shall cease using the Chassis and the Software and shall delete the Software as well as the backup and archival copy from Licensee’s systems. Upon termination for any reason, Licensee shall certify by means of a written document duly signed by a legal representative that the provisions of the present Article have been respected – this shall be done within a time limit of eight (8) days as from the date of termination.
10.6. Termination shall not relieve Licensee from its liability to respect all the obligations claimable before the termination date. In particular the provisions relating to the Disclaimer of Warranty and Liability shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Software after termination of this Agreement. Equally, any provisions of this Agreement that are intended to survive termination, including but not limited to those dealing with confidentiality, shall survive.
11. APPLICABLE LAW AND DISPUTE RESOLUTION
Given the status of Licensor as an international organisation, Licensee and Licensor (“the parties”) specifically agree that their rights and obligations shall be governed exclusively by the terms and conditions of this Agreement.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the PCA Arbitration Rules 2012. The number of arbitrators shall be one. The language to be used in the arbitral proceedings shall be English. The place of arbitration shall be Paris (France). The parties expressly renounce their right to seek the annulment or setting-aside of any award rendered by the arbitral tribunal, or if this renunciation is not legally possible, the parties expressly agree that if an award rendered by the arbitral tribunal is annulled, the jurisdiction ruling on the annulment proceedings cannot rule on the merits of the case. The dispute will therefore be settled by new arbitral proceedings in accordance with this Article.
12. PRIVILEGES AND IMMUNITIES
Nothing in this Agreement shall be construed as a waiver of any privileges and immunities to which Licensor or any related body or entity is entitled under international or national law, including any privileges and immunities agreement.
13. EMPLOYEES, AND OTHER AGENTS
Licensee warrants that all its employees and other agents having access to the Software and/or Chassis shall comply with the obligations of this Agreement. Licensee shall be responsible for the acts or omissions of the aforementioned third parties as for its own.
If you are an agent or an employee downloading the Software for Use by or on behalf of a legal entity, you represent and warrant that you have the authority to bind such legal entity to this Agreement.
14. MISCELLANEOUS PROVISIONS
14.1. Without prejudice to Article 6.5, this is the entire Agreement between Licensor and Licensee relating to the Software and/or the Chassis and cancels all previous agreements and statements, verbal or written, regarding any dealings between the parties with respect to the subject matter hereof.
14.2. If any provision of this Agreement is held to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
14.3. No failure or delay by Licensor or any related body or entity to exercise any right or remedy provided under this Agreement shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any right or remedy. No single or partial exercise of such right or remedy shall constitute a waiver of the further exercise of that or any other right or remedy.