UMD JIFSAN and IAFNS Heavy Metal Screening Tool
CLICK-THROUGH AGREEMENT
THIS CLICK-THROUGH AGREEMENT (THIS “AGREEMENT”) IS BETWEEN THE INSTITUTE FOR THE ADVANCEMENT OF FOOD AND NUTRITION SCIENCES AND THE UNIVERSITY OF MARYLAND ON BEHALF OF ITS JOINT INSTITUTE FOR FOOD SAFETY (JIFSAN) (COLLECTIVELY, THE “LICENSOR” AS DEFINED IN SECTION 1.e.), AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS TO YOU, AND YOU MUST CLICK ON THE “ACCEPT” BUTTON BELOW.
IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE LICENSOR (DEFINED IN SECTION 1.e BELOW) IS UNWILLING TO LICENSE THE SOFTWARE (AS DEFINED IN SECTION 1.f BELOW) TO YOU, AND YOU MUST CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “ACCEPT” BUTTON BELOW.
1. DEFINITIONS:
a. “IAFNS” means the Institute for the Advancement of Food and Nutrition Sciences, a nonprofit corporation headquartered at 740 15th Street, N.W. Suite 600, Washington, D.C. 20005
b. “UMD” means the University of Maryland, College Park, a constituent institution of the University System of Maryland, itself a public agency and instrumentality of the State of Maryland with an address at 3112 Lee Bldg. 7809 Regents Drive, College Park, MD 20742.
c. “Documentation” means print and/or electronic media and certain technical and user documentation describing the use and operation of the Software including any minimum hardware and software requirements necessary for the recommended operational performance of the Software.
d. “End-User” or “You” means the person or entity that has accepted the terms of this Agreement by click the “I ACCEPT/AGREE” button upon downloading the Software.
e. “Licensor” means IAFNS and UMD collectively or individually.
f. “Software” means the user-interface, User Application, and any applicable or related Documentation.
h. “User Application” means the IAFNS and UMD tool used to evaluate the heavy metal (arsenic, cadmium, chromium, lead, and mercury) content for raw materials that are used in the processing of food accessible through the Website.
i. “Website” means the UMD website identified by the URL https://metaltool.jifsan.org as may be updated from time to time.
2. GRANT OF LICENSE.
Subject to the terms of this Agreement and solely in connection with End-User’s internal business operations in the United States without the right to sell, license, sublicense, assign to a third party, reproduce, re-use, alter, edit, or modify (except as permitted in the next sentence), Licensor grants to End-User a revocable, limited, non-exclusive, non-transferable, royalty free license to use, download and display the Software, to add new data points to the executable application portion of the user-interface, to permit the End-Users to display and reproduce (including by printing the electronic version) the Documentation as reasonably required for internal use to permit the End-Users to exercise the rights expressly granted in this Section 2.
3. OWNERSHIP.
As between Licensor and End-User, Licensor exclusively retains all rights not expressly granted to End-User herein including but not limited to: all intellectual property rights (including patents, trademarks and copyrights), proprietary rights (including trade secrets) and moral rights (including, rights of attribution and authorship) throughout the world in and to the Software, and all of their derivative works and improvements. No right, title or interest is granted or otherwise transferred to End-User. This license is not a sale of the Software or any copy. Unauthorized use, reproduction, modification, distribution or display of the Software is expressly prohibited. End-User is responsible for any copyright infringement that is caused or encouraged by End-User’s failure to abide by the terms of this Agreement.
4. LICENSE CONDITIONS AND RESTRICTIONS
As a condition of the rights granted by Licensor to End-User under this Agreement, End-User is prohibited from: (a) reverse engineering, decompiling or otherwise attempting to create human readable materials from the object code of the Software; (b) allowing use of the Software for any purpose not expressly permitted in this Agreement; (c) removing proprietary rights notices, asset tags, brand labels, or marks placed on the Software; (d) attempting to circumvent or compromise the security features of the Software or introducing any viruses, worms or other disabling code into the Software and/or Website; or (e)exporting the Software in violation of any U.S. export law or regulation. If End-User is required by law to provide any governmental or regulatory body with use or access to the Software, then such use and access shall be subject to this Section 4 and the confidentiality obligations of End-User and all items so provided or accessed shall bear the “Restricted Rights” legend in addition to all other notices. End-User shall be responsible for all acts and omissions in connection with its use of the Software. End-User is solely responsible for obtaining the proper hardware and software necessary to operate the Software as further described in the Documentation. Licensor shall, in its sole discretion, be free to modify, change, or enhance the Software, including, but not limited to, changing the computer system requirements needed to use the Software without any obligation to the End-User.
5. SUBMISSION OF INFORMATION.
Licensor has no responsibility or liability for the content, accuracy, or completeness of any such information submitted by the End-User or any vendor, licensee, customer, or provider of goods or services to End-User. End-User is solely responsible for any and all information submitted to or through the user-interface. This sole liability shall extend to all transactions included in the user-interface and to End-User Data (as defined below). Without limiting the foregoing, End-User shall assure that all information submitted or provided to the user-interface by End-User is: (i) accurate, complete, and correct; (ii) does not violate any applicable federal, state, local or international statute, law or regulation to which any transaction shall be applicable; and (iii) does not infringe upon or violate the proprietary or intellectual property rights including trade name, trademark, copyrights, or patent interests of any third party. End-User further represents and warrants that it possesses all rights, title and interest including applicable intellectual property rights to submit such information to or through the Software and to act as agent on behalf of any person(s) on whose behalf End User is submitting information into the Software.
6. END-USER INDEMNIFICATION.
Licensor shall have no liability for, and End-User, at its own expense, shall defend, indemnify, and hold harmless, Licensor, its affiliates, officers, directors, employees, agents, successors, and assigns with respect to any claims, actions, damages, liabilities, proceedings, injuries, losses, costs and expenses, including reasonable legal and accounting fees, brought or asserted against Licensor, its agents, affiliates, successors, and assigns by any party derived in whole or in part from any claims or liabilities: (i) arising in any manner under federal, state, or local statutes, laws, or regulations; (ii) attributable to the content, structure, format or quality of any data or information delivered to the Software by End-User or its clients, or any other party; (iii) arising from any act or omission of End-User, its agents, contractors, licensees, servants, or employees; (iv) resulting from or arising out of the use or non-use of and/or reliance on the output data or information derived from the Software; or (v)resulting from or arising out of exercise of this license.
7. CONFIDENTIALITY.
“Confidential Information” will mean all information, data and software transmitted inwriting, orally, visually, tangibly, intangibly, or on magnetic media, including, organizational information, system architecture, software, graphics, programs, designs, ideas, concepts, flow charts, diagrams, computer programs, methods research, and any other personal or intellectual property relating to a party, its respective parent, subsidiaries, or affiliates by one party to the other in connection with this Agreement. Without limiting the generality of the foregoing, the parties stipulate and agree that “Confidential Information” will specifically include:(i) the Software; and (ii) any data provided by End-User to Licensor or input into the Software by End-User in connection with End-User’s use of Software hereunder (collectively, “End-User Data”). Notwithstanding the foregoing, “Confidential Information” will not include information which: (i) is publicly disclosed by the party disclosing the information either prior to or subsequent to the receipt of such information by the receiving party; (ii)is or becomes generally known in the trade through no fault of the receiving party; (iii) is lawfully disclosed to the receiving party by a third person to this Agreement who has lawfully acquired the Confidential Information; or (iv)was independently developed by the receiving party; provided, however, that the receiving party hereby stipulates and agrees that, if it seeks to disclose, display, divulge, reveal, report, publish or transfer, for any purpose whatsoever, any Confidential Information, such receiving party will bear the burden of proving that any such information was independently developed or is or became publicly available without any such breach. A party’s failure to mark any Confidential Information as confidential, protected or proprietary will not affect its status as Confidential Information under this Agreement. Each party acknowledges that, in performing its obligations and exercising its rights hereunder, a party may acquire the Confidential Information of the other party. As a material inducement to the other party to disclose such Confidential Information, each party represents and agrees that it will not, except with the prior written consent of the other party, at any time directly by itself or indirectly through any agent or employee: (i) reproduce, distribute, transmit, publicly display, modify, create derivative works based upon, or disclose, deliver, display, divulge, reveal, report, publish or transfer to any person or entity, for any purpose whatsoever, any Confidential Information of the other party or (ii) use Confidential Information of the other party for any purpose other than in connection with the performance of its obligations or the exercise of its rights hereunder. Each party further represents and agrees to handle the Confidential Information of the other party in the same manner that the party handles its own most confidential information and, in any event, to take all steps reasonably necessary to preserve the confidentiality of Confidential Information, including without limitation adopting appropriate confidentiality policies, inserting appropriate confidentiality terms in agreements with all employees and subcontractors, and maintaining Confidential Information in a manner designed to assure that it will not be used or disclosed improperly. A party will promptly notify the other party if it becomes aware of any unauthorized use or disclosure of any Confidential Information of another party and, at the other party’s request, will take such action as may be reasonably necessary and legally permissible to terminate or remedy any unauthorized use or disclosure that results from any act or omission of the party or any of its employees, subcontractors or agents. If a receiving party is compelled by a court or other body of competent jurisdiction to disclose the Confidential Information, including under the Maryland Public Information Act, the receiving party shall (to the extent legally permissible) inform the disclosing party by written notice of the Confidential Information required to be disclosed prior to making such a disclosure so that the disclosing party may take appropriate action. The receiving party is obligated to produce the Confidential Information in order to comply with applicable laws or regulations, including the Maryland Public Information Act, or pursuant to an order of a court of competent jurisdiction or a valid administrative or congressional subpoena provided the receiving party notifies the disclosing party prior to making such a disclosure so that the disclosing party may take appropriate action.
8. NO MAINTENANCE OR SUPPORT.
The Licensor shall be under no obligation whatsoever to: (i) provide maintenance or support for the Software; or (ii) to notify End-User of bug fixes, patches, or upgrades to the Software (if any). If, in its sole discretion, the Licensor makes a Software bug fix, patch or upgrade available to End-User and the Licensor does not separately enter into a written license agreement with End-User relating to such bug fix, patch or upgrade, then it shall be deemed incorporated into the Software and subject to this Agreement.
9. DISCLAIMER OF WARRANTY.
THE SOFTWARE ALONG WITH ANY SERVICES, MATERIALS OR OTHER PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY CUSTOM OR TRADE USAGE), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, DESIGN ANDFITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS AGENTS OR EMPLOYEES IN PERFORMING ITS OBLIGATIONS HEREUNDER WILL CREATE ANY WARRANTY. FURTHER, LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF ANY SOFTWARE OR WITH RESPECT TO THE CORRECTNESS, ACCURACY, AVAILABILITY, RELIABILITY OF SUCH SOFTWARE OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT END-USER HAS RELIED ON NO WARRANTIES.
10. LIMITATION ON DAMAGES.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER LICENSOR NOR ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS AND SUPPLIERS WHO HAVE BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE SUCH SOFTWARE EVEN IF LICENSOR HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S LIABILITY RELATED TO THE SOFTWARE EXCEED FIVE DOLLARS (US$5.00). THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. PUBLICITY.
No party shall, in connection with its activities under this Agreement, use the name, trade name, trademark or service mark of the other party in any way without the prior written consent of the other party, which consent may be withheld in the sole discretion of the party.
12. FORCE MAJEURE.
Licensor shall not be liable to End-User or deemed in breach of this Agreement for its failure or delay in performing any of its obligations under this Agreement during any period in which such performance is rendered impracticable or impossible due to circumstances beyond Licensor’s reasonable control, including, but not limited to, acts of God, fire, explosion, flood, drought, riot, sabotage, terrorism, war, invasion, embargo, strikes or other labor trouble, failure in whole or in part of suppliers to deliver materials, equipment or machinery, public health emergency, pandemic, interruption of or delay in transportation or telecommunications or compliance with any order or regulation of any government entity acting with color of right, whether similar or dissimilar to any of the foregoing.
13. THIRD PARTY SUPPLIERS.
The Software may include software or other code distributed under license from third party suppliers. End-User acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to the Software or any portion thereof and assume no liability for any claim that may arise with respect to the Software or End-User’s use or inability to use the same.
14. EXPORT CONTROLS.
You shall comply with all applicable U.S. export control laws and regulations including, but not limited to, the Arms Export Control Act, 22 U.S.C. §§ 2751-2794, and its implementing regulations, the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Part 120 et seq.; the Export Administration Act, 50 U.S.C. App. §§ 2401-2420, and its implementing regulations, the Export Administration Regulations, 15 C.F.R. §§ 730-774, and all embargo and sanction laws and regulations that control the export of technologies, commodities, software and technical data to foreign countries and foreign persons (collectively, “Export Control Laws”) wherever they are located.
15. TERMINATION.
This Agreement may be terminated by Licensor at any time on fifteen(15) days’ notice (which may be posted to the Website) and by End-User on thirty (30) days written notice. Notwithstanding the foregoing, Licensor shall have the right, in addition to any other rights and remedies available to Licensor, to terminate this Agreement effective immediately upon written notice to End-User if End-User violates Licensor’s intellectual property rights, the restrictions in Section 3, or the obligations of Sections 4 and 7. End-User agrees that in the event this Agreement is terminated, in whole or in part, End-User shall cease using and remove, destroy, or return to Licensor the Software and all parts thereof, including all copies, modifications and merged portions, regardless of form. In the event that End-User fails to remove, destroy or return the Software as set forth above, Licensor shall have the right to enter the End-User’s premises to the extent allowed by law to access the End-User’s computer systems for the purpose of removing or destroying the Software. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 15, 16 and 17.
16. SEVERABILITY
Should any section or any part of a section within this Agreement be rendered void, invalid or unenforceable by any court or law for any reason, such invalidity or unenforceability shall not void or render invalid or unenforceable any other section or part of a section to this Agreement.
17. GOVERNING LAW.
This Agreement will be governed by the laws of the State of Maryland without regard to its principles of conflicts of laws. The parties stipulate and agree that any litigation arising from or relating to this Agreement will be filed and prosecuted before a court of competent subject matter jurisdiction in the State of Maryland. The parties consent to the jurisdiction of such courts over them, stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts based on the alleged inconvenience, inefficiency or unfairness of such courts.
18. ENTIRE AGREEMENT.
This Agreement is the complete and exclusive statement of the agreement between Licensor and End-User, superseding all prior agreements, representations, proposals, oral or written, and all other communications between the parties relating to the subject matter hereof. All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. This Agreement may be modified by Licensor from time to time, and any changes will be posted to the Website.
This tool is a joint initiative of the University of Maryland's Joint Institute for Food Safety and Applied Nutrition (UMD JIFSAN) and the Institute for the Advancement of Food and Nutrition Sciences (IAFNS). The tool is not a product of or endorsed by the United States Food and Drug Administration. The levels calculated by this tool are not regulatory levels or limits under consideration by FDA; nor should this tool be used to determine compliance with any FDA guidance or regulations.
