NASA GODDARD SPACE FLIGHT CENTER SOFTWARE RELEASE AND USAGE AGREEMENT This Agreement shall be used only in the event the Subject Software is not provided to Recipient under any other agreement with the United States, such as contract, grant or cooperative agreement. Where Software is provided by the United States under such other agreement(s), this Agreement shall be void, and all matters concerning the Subject Software will be subject only to the conditions of the other agreement(s). This Agreement may not be used in concert with any other agreement. The United States Government as represented by the National Aeronautics and Space Administration, Goddard Space Flight Center, located at Greenbelt, MD 20771 (hereinafter Goddard), releases the following computer software to Recipient: Name: AIRS/AMSU/HSB Processing Package Version: 5.2 (hereinafter Subject SOFTWARE). Executable modules for the Subject Software are to be released. The Subject Software was developed under NASA Contract. Definitions: For purposes of this Agreement: i) software, as applied to the Subject Software, means a collection of one or more programs or microprograms fixed in any tangible medium of expression that comprises a sequence of instructions (source code) to carry out a process in, or convertible into, a form executable by an electronic computer (object code); ii) data, as used in this Agreement, means recorded information, regardless of form, the media on which it may be recorded, or the method of recording; iii) technical data is defined as any specific information necessary for the development, production or use of the Subject Software; and, iv) Works Based on the Subject Software means either, (a) alone, any derivative work of the Subject Software, as defined in the United States Copyright Act of 1976, as amended, such as a translation or a modification, or, (b) including both the Subject Software and any derivative works thereof but only when both must be combined in order to use the derivative works. Goddard hereby releases the Subject Software under the authority of Section 203 of the National Aeronautics and Space Act of 1958, as amended. NOW THEREFORE, in consideration of Goddard's releasing the Subject Software to Recipient and granting Recipient the right to: (i) Use the Subject Software; (ii) Modify the Subject Software; (iii) Create Works Based on the Subject Software; and (iv) Distribute copies of Works Based on the Software throughout the world, in any medium; subject to all of the terms of this Agreement and to any third party intellectual property rights which may be applicable, the Recipient and all further Recipients agree as follows: 1. Copyright to the Subject Software is held by the United States, which Software may also include third party copyrighted software; all copyright notices shall be included in all copies of the Subject Software as well as in any Works Based on the Subject Software. The Subject Software is not in the public domain and nothing in this Agreement shall be construed as making the Software available to the public without restriction. The Subject Software remains the property of NASA and may be released by Recipient only in compliance with this Agreement. 2. The Subject Software shall not be redistributed apart from a Work Based on the Subject Software. 3. Works Based on the Subject Software shall be offered by Recipient, without charge or other cost, to the United States. Works Based on the Subject Software may be used in contracts or other agreements with the United States, but no charge may be made for such use. 4. The United States, NASA, and NASA affiliates, including but not limited to contractors, subcontractors, grantees and other affiliates, shall neither be liable nor responsible for any maintenance or updating of the Subject Software, or for correction of any errors in the Subject Software. 5. Notwithstanding any provisions contained herein, Recipient is hereby put on notice that export of any goods or technical data from the United States may require some form of export license from the United States. Goddard neither represents that a license shall not be required, nor that, if required, it shall be issued. Nothing granted herein to Recipient provides any such export license. 6. The Subject Software is provided "as is" without any warranty of any kind, either expressed, implied, or statutory, including, but not limited to, any warranty that the Subject Software will conform to specifications, any implied warranties of merchantability, fitness for a particular purpose, and freedom from infringement, and any warranty that the documentation will conform to the software, or any warranty that the Subject Software will be error free. This Agreement does not, in any manner, constitute an endorsement by Goddard of any test results, resulting designs, hardware, or other matters resulting from use of the Subject Software. Recipient shall not file any claim against the United States for any matter concerning the Subject Software, performance of, failure to perform, breach or other matter related to, this Agreement. Recipient's sole remedy for any such matter shall be the immediate, unilateral termination of this Agreement. The United States shall not be liable for any damage or injury suffered by Recipient or its representatives, regardless of cause, and Recipient hereby expressly waives any rights it might otherwise have under the Federal Tort Claims Act or any other authority, in consideration for Goddard's agreement to provide the Subject Software under this Agreement. Recipient under this section includes any further Recipient to which Recipient provides the Subject Software and/or Works Based on the Subject Software. 7. Recipient shall indemnify and hold harmless the United States from any third party liability arising under the Federal Tort Claims Act or any other authority, out of the Subject Software, or out of performance of, or failure to perform, any aspect of this Agreement, whether or not caused by the negligence, gross negligence or willful misconduct of employees of the United States. Recipient under this section includes any further Recipient to which Recipient provides the Subject Software and/or Works Based on the Subject Software. 8. This Agreement does not, in any manner, constitute an exclusive release of the Subject Software to Recipient. NASA's distribution of the Subject Software to other entities is in no manner limited by this Agreement or any other Agreement between the parties. 9. Recipient must meet all of the following conditions with respect to distribution or publication of any Works Based on the Subject Software or any work that contains or is derived from the Subject Software or any part thereof: (i)If Recipient modifies the Subject Software, Recipient must cause the Works Based on the Subject Software to carry prominent notices stating that Recipient has modified the Subject Software's files and the date of any change. In each source file that Recipient has modified, Recipient must include a prominent notice that Recipient has modified the file, including Recipient's name, address, telephone number and e-mail address (if any), and the date and purpose of the change. (ii) If Recipient distributes Works Based on the Subject Software, Recipient must cause the Works Based on the Subject Software to be distributed as a whole and at no charge to all third parties. (iii) If the Work Based on the Subject Software normally reads commands interactively when run, Recipient must cause it, at each time the Work Based on the Subject Software commences operation, to print or display an announcement including an appropriate copyright notice, contract information and developers, and this entire Agreement as a condition of using the Subject Software. (iv) Recipient must insure that all Subject Software and Works Based on the Subject Software it distributes includes the terms of this Agreement and that any further Recipient agrees to the terms of this Agreement as part of any Recipient distribution. Recipient shall provide a written, semi-annual report to Goddard identifying all further Recipients as required by the Goddard representative designated hereunder. (v) If the Subject Software and/or any documentation provided with the Subject Software includes a copyright notice, or other restrictive marking or legend, identifying it as a work of a third party, the third party software or documentation will be governed by the terms and conditions of its copyright, or other restrictive marking. Goddard disclaims all warranties and liabilities regarding third party software, if present in the Goddard-generated Subject Software, and distributes it "as is." (vi) Recipient must accompany any Work Based on the Subject Software with the complete corresponding machine-readable source code, delivered on a medium customarily used for software interchange. The source code for a work means the preferred form of the Work Based on the Subject Software for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable code. If Recipient distributes the Work Based on the Subject Software with any component that is normally distributed (in either source or binary form) with the major components (e.g., compiler, kernel) of the operating system on which the executable runs, Recipient must also distribute the source code of that component if Recipient has it and has the legal authority to do so. (vii) If distribution of executable or object code is made by offering the equivalent ability to copy from a designated place, offering equivalent ability to copy the source code from the same place constitutes distribution of the source code, even though third parties are not compelled to copy the source code along with the object code. (viii) If Recipient distributes any written or printed material at all with the Work Based on the Subject Software, such material must include either a written copy of this Agreement or a prominent written indication that the Work Based on the Subject Software is covered by this Agreement, and must include written instructions for printing and/or displaying the copy of the Agreement on the distribution medium. (ix) Recipient hereby grants the United States an irrevocable, non-exclusive, royalty-free, worldwide license in the modified or enhanced version of the Subject Software to make, use, sell, reproduce, prepare derivative works, distribute copies to the public, and perform and display publicly and have others make use or sell, and reproduce, prepare derivative works, distribute copies to the public, and perform and display publicly, which shall be deemed to be in the public domain for any user. Recipient shall insure that this license grant is applicable to further distribution of the Subject Software and any Works based on the Subject Software. (x) Recipient and further Recipients may not impose any further restrictions on further redistribution of the Subject Software and any Works Based on the Subject Software exercise of the rights granted herein. 10. No rights are granted to the Subject Software except as expressly set forth herein. This Agreement does not, in any manner, constitute the grant of a license to Recipient under any NASA copyright, patent, patent application or other intellectual property. Recipient and any further Recipients may not copy, modify, sublicense, or distribute the Subject Software except as expressly provided under this Agreement. Any attempt otherwise to copy, modify, sublicense or distribute the Subject Software is void, and will automatically terminate Recipient's rights under this Agreement. However, parties who have received copies, or rights, from Recipient under this Agreement will not have their agreements terminated so long as such parties remain in full compliance. 11. Recipient may not make any representation in the Subject Software, Works Based on the Subject Software, or in any promotional, advertising, or other material which may be construed as an endorsement by Goddard of any product or service provided by Recipient, or which may seek to obtain commercial advantage by the fact of Goddard's participation in this Agreement. Recipient may state the factual relationship with Goddard. 12. Upon request of Goddard, Recipient and all further Recipients will provide Goddard with the complete source code of Works Based on the Subject Software. Copies of corrected, modified, enhanced or derivative versions of the Subject Software shall be sent to the MODIS Science Data Support Team Leader. 13. This Agreement may be terminated unilaterally by either party upon 30 days advance written notice to the other party, except that this Agreement may be terminated immediately without advance written notice in the event of breach of any aspect of this Agreement. Upon termination, the Subject Software provided by Goddard shall be returned. The Agreement's provisions shall remain in effect for any further Recipient having received the Subject Software or Works Based on the Subject Software from the Recipient, until such time as specifically terminated against the Further Recipient by Goddard. Upon termination, the Recipient shall provide a final listing of further Recipients not previously reported to Goddard, with sufficient detail to enable Goddard to identify and contact such Recipients. All liability provisions shall survive any termination by either party. 14. Goddard hereby designates the Goddard Space Flight Center Software Release Authority, Mail Code 713, Greenbelt, MD 20771, telephone number 301-286-5810, as its representative for implementation of this Agreement. 15. This Agreement shall be subject to United States federal law only, for all purposes including, but not limited to, determining the validity of this Agreement, the meaning of its provisions and the rights, obligations and remedies of the parties. 16. This Agreement constitutes the entire understanding and agreement between the parties hereto relating to release of the Subject Software and may not be superseded, modified or amended except by further written agreement duly executed by the parties. 17. All terms in this Agreement that apply to Recipient also apply to all further Recipients of the Subject Software and Works Based on the Subject Software, except to the extent expressly provided otherwise. 18. By accepting and using the software, the Recipient affirms that he/she has authority to bind the Recipient to all terms and conditions of this Agreement and that the Recipient hereby agrees to all terms and conditions of this Agreement.