THIS AGREEMENT is made through the act of accessing this Web site between The US
Army Corp of Engineers Construction Engineering Research Laboratory (the
“Discloser”) and the Web site User (the “Recipient”).
WHEREAS Discloser owns, possesses or controls certain trade secrets, and
proprietary and confidential information acquired through the expenditure of
time, effort and money, of a technical and business nature relating to
Engineered Management System (EMS) decision-support tools (collectively and
individually described as the “Information”); and
WHEREAS Recipient desires to receive, and Discloser is willing to supply, the Information on the terms and
conditions set out herein, solely for the purpose of evaluating, reviewing and
reporting on the software development progress ( the “Purpose”);
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and the covenants
and agreements herein contained the parties hereto agree as follows:
- Discloser shall at its discretion provide such of the Information to Recipient
as is required for the Purpose, verbally or in writing. Nothing in this
Agreement obligates Discloser to make any particular disclosure of Information.
- All right, title and interest in and to the Information shall remain the
exclusive property of Discloser and the Information shall be held in trust and
confidence by Recipient for Discloser. No interest, licence or any right
respecting the Information, other than expressly set out herein, is granted to
Recipient under this Agreement by implication or otherwise.
- Recipient shall use all reasonable efforts to protect Discloser’s interest in the Information
and keep it confidential, using a standard of care no less than the degree of
care that Recipient would be reasonably expected to employ for his own similar
confidential information. In particular Recipient shall not directly or
indirectly disclose, allow access to, transmit or transfer the Information to a
third party without the Discloser’s prior written consent. Recipient shall
disclose the Information only to those persons who have a need to know the
Information for the Purpose and who have been approved by the Discloser to
receive the Information. Recipient shall, prior to disclosing the Information to
such employees and consultants, issue appropriate instructions to them to
satisfy its obligations herein and obtain their written agreement to receive and
use the Information on a confidential basis on the same conditions as contained
in this Agreement.
- The Information shall not be copied, reproduced in any
form or stored in a retrieval system or data base by Recipient without the prior
written consent of Discloser, except for such copies and storage as may be
reasonably required internally by Recipient for the Purpose.
- The obligations
of the Recipient under paragraphs 3, 4 and 5 shall not apply to Information:
- which at the time of disclosure is readily available to the trade or the public;
- which Recipient can establish, by documented and competent evidence, was in
its possession prior to the date of disclosure of such Information by Discloser;
- any Information which the Recipient is by law required to disclose.
- This Agreement shall not constitute any representation, warranty or guarantee to
Recipient by Discloser with respect to the Information infringing any rights of
third parties. Discloser shall not be held liable for any errors or omissions in
the Information or the use or the results of the use of the Information.
- Recipient shall, upon request of Discloser, immediately return the Information
and all copies thereof in any form whatsoever under the power or control of
Recipient to Discloser, and delete the Information from all retrieval systems
and databases or destroy same as directed by Discloser and furnish to Discloser
a certificate by an officer of Recipient of such deletion or destruction.
- When requested by Discloser, Recipient will promptly provide a list containing
the full name and address of any person having access to or copies of the
Information and the reason such access is necessary.
- Due to the valuable and
proprietary nature of the Information to Discloser the obligations assumed by
Recipient hereunder shall (a) be unlimited in time or territory or (b) if it is
held by a court of competent jurisdiction that this provision is illegal,
invalid or unenforceable, shall apply only within those territories within which
Discloser then carries on business and only up to 10 years after disclosure of
such Information. If any provision of this Agreement is held to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and remaining part of such
provision and all other provisions hereof shall continue in full force and
- The Recipient shall indemnify and save harmless the Discloser from
all damages, losses, expenses and costs whatsoever resulting from the breach of
this Agreement by the Recipient.
- This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and cancels and supersedes any prior understandings and agreements between the
parties hereto with respect thereto. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, express, implied or
statutory, between the parties other than as expressly set forth in this
- This Agreement may not be assigned by either party without the
prior written consent of the other party.
- This Agreement shall endure to the
benefit of and be binding upon the respective heirs, executors, administrators,
successors and permitted assigns of the parties hereto.
- This Agreement shall
be governed by and construed in accordance with the laws of the State of