PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY. ANY USE OF
SOFTWARE OBTAINED FROM WBEM SOLUTIONS, INC. ("WS") IS PERMITTED
ONLY IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE
AGREEMENT WITH WS. YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS
LICENSE AGREEMENT OCCURS AUTOMATICALLY WHEN YOU ACQUIRE OR INSTALL
THIS SOFTWARE.
1. License Terms. You can use this Software, upon the
following terms:
1.1. Evaluation User: You agree to use the Software as an
"Evaluation User". Subject to the terms of this Agreement, WS
grants to you a non-exclusive, non-transferable, right to use the
Software, in object code form only. You may use any third party
software products or modules supplied by WS solely with the
Software, unless the licensing terms of such third party software
products or modules specify otherwise. You may not disclose the
results of software performance benchmarks to any third party
without WS’s prior written consent. You are forbidden from
using the Software, in whole or in part, for any other use not
specified in this Agreement or otherwise offering it for resale,
sublicense, publish, display, distribute, or otherwise transfer it
to a third party, either voluntarily or by operation of law,
without the prior written consent of WS, which may be withheld in
WS’s sole discretion. If you desire to integrate the Software into
an application in order to sell or otherwise use or transfer the
resulting integrated application, you must obtain WS’s prior
written consent which will only be given if you sign WS’s
distribution license agreement. WS retains all proprietary rights
of any type and nature in and to the Software and related
Documentation and any corrections, bug fixes, enhancements,
updates or other modifications thereto. Nothing in this
Agreement shall be construed as transferring any aspects of such
rights to you or any third party.
1.2. Redistribution: YOU CANNOT REDISTRIBUTE ANY FILES OF
THIS SOFTWARE.
2. Limited Warranty/Limitations On Liability.
2.1. Warranty. THE SOFTWARE IS PROVIDED "AS-IS". WS MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT
LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE,
MERCHANTABILITY, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL
OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WS HEREBY DISCLAIMS
ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES. WS MAKES NO
REPRESENTATION ABOUT THE SUITABILITY OF THE SOFTWARE OR ABOUT THE
ACCURACY OF ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR
GENERATED BY THE SOFTWARE. The entire risk of the Software’s
quality, performance and the results of its operation are with
you. All responsibility or liability for any damages caused by
viruses contained within the electronic file containing the form
or document is disclaimed by WS.
2.2. Limitations on Liability. WITH RESPECT TO THE
SOFTWARE PROVIDED UNDER THIS AGREEMENT, WS AND ITS
SUPPLIERS/LICENSORS SHALL NOT BE LIABLE TO YOU, UNDER ANY THEORY
OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY), CONTRACT, OR
OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY
OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS)
ARISING OUT OF YOUR USE OF THE SOFTWARE, OR THE RESULTS FROM YOUR
USE OF THE SOFTWARE, OR YOUR INABILITY TO USE THE SOFTWARE, EVEN
IF WS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA, OR COST OF COVER. YOU AGREE THAT WS HAS NO
CUMULATIVE LIABILITY UNDER THIS AGREEMENT.
The limitations agreed to in this Section shall apply to all
causes of action by you against WS and/or any of WS’s affiliated
parties. Both parties understand and agree that the remedies and
limitations herein allocate the risks of product and service
nonconformity between the parties as authorized by the Uniform
Commercial Code and of other applicable laws, and that such
allocation of risks is a fundamental benefit of the bargain of
each party. You understand that any modification of the allocation
of risk in this Agreement would affect the fees charged by WS, and
you therefore agree, in consideration of the actual level of fees
payable by you hereunder, that the fees herein reflect, and are
set in reliance upon, this allocation of risk and the exclusion of
consequential damages set forth in this Agreement. Some States do
not permit disclaimers of certain warranties or limitations on
certain types of liability under certain circumstances;
consequently some of the foregoing disclaimers and limitations may
not be applicable to you, in whole or in part.
3. Software Changes. WS reserves the right at any time not
to release or to discontinue release of any Software and to alter
prices, features, specifications, capabilities, functions,
licensing terms, release dates, general availability or other
characteristics of the Software without any notice to you.
4. Ownership. You agree that WS owns all intellectual
property rights and all other proprietary rights, title and
interests in and to the Software and the Documentation and any
corrections, bug fixes, enhancements, updates or other
modifications, including custom modifications, to the Software,
whether made by WS or any third party, all of which shall remain
the sole and exclusive property of WS and/or its Licensors, as
appropriate. Nothing in this Agreement shall be construed as
transferring any aspects of such rights to you or any third party.
You agree to abide by the terms of this Agreement, the copyright
law and all other applicable laws of the United States in your use
of the Software. You acknowledge that the Software contains
valuable confidential information and trade secrets of WS and/or
its Licensors; therefore you agree not to modify the Software, or
attempt to decipher, decompile, disassemble or reverse engineer
the Software or assist or encourage any third party in doing
so.
5. Indemnification.
5.1. You agree that WS has no obligation to indemnify you
from and against any and all claims, actions or proceedings,
arising out of any claim that the Software infringes or violates
the patent, copyright or trade secret right of any third party.
You shall provide WS with prompt written notice of such claims.
5.2. If it is, in the reasonable opinion of WS, probable
that it will be determined by a court of competent jurisdiction
that such Software infringes any patent, copyright, trade secret
or trademark of a third party or if WS is enjoined from
distributing such Software, then WS, at its sole option and
expense, and your sole remedy, will: (i) procure for you the
rights to the same extent as those granted under this Agreement,
or (ii) replace such Software with other software, which complies
with the specifications of the Software, or (iii) modify the
Software, to avoid infringement, or (iv) terminate this Agreement.
copyright, trade secret or trademark of a third party or if WSI is
enjoined from distributing such Software, then WSI, at its sole
option and expense, and your sole remedy, will: (i) procure for
you the rights and to the same extent as those granted under this
Agreement; (ii) replace such Software with other software, which
complies with the specifications of the Software; or, (iii) modify
the Software, to avoid infringement while continuing to have the
Software meet the Documentation or (iv) terminate this Agreement
and return to you your purchase price, less an amount commensurate
with your period of use of the Software.
5.3. You agree that this represents WS’s sole obligation to
you and shall be your sole and exclusive remedy pursuant to this
Agreement for intellectual property infringement.
5.4. WS shall have no indemnity obligation for claims of
infringement to the extent resulting or alleged to result in whole
in part from: (i) any combination, operation, or use of any
Software with any programs or equipment not supplied by WS; (ii)
any modification of the Software by a party other than WS; and
(iii) your failure, within a reasonable time frame, to implement
any replacement or modification of the Software provided by WS.
5.5. You assume all risk as to the selection, use,
performance, and quality of the Software, except as otherwise
provided in this Agreement. You agree to indemnify, defend and
hold WS and its partners, agents, staff, advertisers, product and
service providers, and affiliates (collectively, "Affiliated
Parties") harmless from any liability, loss, claim and expense,
including reasonable attorney’s fees, related to your use of the
Software, your violation of this Agreement and your export of the
Software.
6. Term And Termination.
6.1. This Agreement will take effect upon the date of
installation of the Software by you, directly or indirectly, and
will remain in force until terminated in accordance with this
Agreement. This Agreement may be terminated by you upon thirty
(30) days prior written notice to WS and by you destroying or
returning to WS all copies and partial copies of the Software and
Documentation under your direct or indirect control. WS may, by
written notice to you, terminate this Agreement immediately if you
are in material breach of any provision of this Agreement, which
breach, if capable of being cured, is not cured within thirty (30)
days after WS gives you written notice thereof. Upon the
expiration or termination of this Agreement, all rights granted to
you under this Agreement will immediately cease.
6.2. Termination of this Agreement will not affect the
following provisions, all of which will survive the termination of
this Agreement, relating to (a) your confidentiality obligation,
(b) our respective indemnification obligations, (c) the
limitations period for actions and (d) the limitation of and/or
the disclaimer by WS regarding its liability.
6.3. Within thirty (30) days after the date of termination
of this Agreement for any reason whatsoever, you shall destroy the
Software and all copies, in whole or in part, all Documentation
relating thereto, and any other Confidential Information.
7. United States Government Rights. The Software provided
under this Agreement is commercial software.
7.1 Department of Defense End Users: If the Software is acquired
by or on behalf of agencies or units of the Department of Defense
(DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and
its successors (48 C.F.R. 227.7202) the Government's right to use,
reproduce or disclose the Software and any accompanying
documentation acquired under this Agreement is subject to the
restrictions of this Agreement.
7.2 Civilian Agency End Users: If the Software is acquired by or
on behalf of civilian agencies of the United States Government,
then, pursuant to FAR Section 12.212 and its successors (48 C.F.R.
12.212), the Government's right to use, reproduce or disclose the
Software acquired under this Agreement is subject to the
restrictions of this Agreement.
8. Legal Compliance. You may not download or otherwise
export or re-export the Software or any underlying information or
technology except in full compliance with all United States and
other applicable laws and regulations. In the event you do
export any portion of the Software, you will be violating this
Agreement for which WS can immediately terminate this Agreement,
in its sole discretion. Additionally, you become responsible
for and must immediately obtain and maintain any export and import
license(s) required for such activity and you agree to indemnify
WS pursuant to Section 5.5 above for your exporting activities. In
particular, but without limitation, none of the Software or
underlying information or technology may be downloaded or
otherwise exported or re-exported (i) into (or to a national or
resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or
Sudan, Afghanistan, and any other countries which are subject to
any type of trade restriction or embargo imposed by the United
States or (ii) to anyone on the US Treasury Department's list of
Specially Designated Nationals or the US Commerce Department's
Table of Deny Orders. By licensing the Software, you are agreeing
to the foregoing and you are representing and warranting that you
are not located in, under control of, or a national or resident of
any such country or on any such list.
9. Non-Assignment/Binding Agreement. Neither this Agreement
nor any rights under this Agreement may be assigned or otherwise
transferred by you, in whole or in part, whether voluntary or by
operation of law without the prior written consent of WS, which
may be withheld in its sole discretion. WS may assign this
Agreement at any time without notice to you. Subject to the
foregoing, this Agreement will be binding upon and will inure to
the benefit of the parties and their respective successors and
assigns.
10. Miscellaneous.
10.1. If any term, condition, or provision in this Agreement
is found to be invalid, unlawful or unenforceable to any extent,
the remaining terms, conditions and provisions will continue to be
valid and enforceable to the fullest extent permitted by law.
10.2. This Agreement (including any addenda hereto signed by
both parties) represents the entire agreement of the parties with
respect to the subject matter of this Agreement and supersedes all
previous communications, representations, understandings and
agreements, either oral or written, between the parties with
respect to said subject matter.
10.3. This Agreement may not be amended, except in writing,
signed by both parties. No terms, provisions or conditions of any
purchase order, acknowledgment or other business form that you may
use in connection with the acquisition or licensing of the
Software will have any effect on the rights, duties or obligations
of the parties under, or otherwise modify, this Agreement,
regardless of any failure of WS to object to such terms,
provisions or conditions. You acknowledge and agree that this
Agreement will control in the event of any inconsistencies or
differences between the terms of this Agreement and any such
purchase order or other document.
10.4. This License shall be governed by and construed in
accordance with the laws of the State of North Carolina without
giving effect to its conflict of law provisions and excludes those
of the United Nations Convention on Contracts for the Sale of
Goods. You agree that any dispute regarding this License can only
be heard in the state or federal courts having jurisdiction in
Wake County, North Carolina, and you agree that you shall be
subject to the personal jurisdiction of such courts.
10.5. Downloading and/or using the Software constitute you
acceptance of the terms of this Agreement. If you do not agree to
be bound by these provisions, you are required to destroy all
copies of the Software.
10.6. If, at any time or times after the date of this
Agreement, either party employs an attorney to pursue enforcement
(by any lawful means) of the terms of this Agreement, or to file a
petition, complaint, answer, motion, injunction, or other pleading
in any suit or proceeding relating to this Agreement, then all of
the attorneys’ fees and costs of collection shall be an additional
liability of the losing party and shall be payable by the losing
party on the demand of the winning party.
10.7. The words used in this Agreement are the words chosen
by both of the parties to this Agreement to express their mutual
intent. Neither party will assert that it did not draft the
words used in the Agreement so that any ambiguities are resolved
against the party that drafted the Agreement.
10.8. The terms of this Agreement may be waived only in a
written document signed by the party waiving compliance. WS
shall not be precluded from enforcing any provision of this
Agreement at any time even if WS has not previously required you
to perform all of your obligations under this Agreement. The
waiver by WS of any right arising from any breach of this
Agreement by you shall not be considered as a waiver of any right
arising from any subsequent breach.
10.9. The headings used in this Agreement are intended
solely for convenience of reference and shall be given no effect
in the construction or interpretation of this Agreement.
10.10. Neither party shall be in default or otherwise liable
for any delay in or failure of its performance under this
Agreement if such delay or failure arises by any reason beyond its
reasonable control, including any act of God, any acts of war
earthquakes, floods, fires, epidemics, riots, unavoidable
accidents or governmental regulations or interference; provided,
however, that lack of funds shall not be deemed to be a reason
beyond a party's reasonable control. The parties will promptly
inform and consult with each other as to any of the above causes
which in their judgment may or could be the cause of a delay in
the performance of this Agreement. These causes will not excuse
you from paying accrued amounts due to WS through any available
lawful means acceptable to WS. If any of these causes continue to
prevent or delay performance for more than 180 days, WS may
terminate this Agreement, effective immediately upon notice to
you.
10.11. Either party may take any action necessary to protect
its rights, including injunctive relief, specific performance and
any other remedies at law or in equity, but only WS can take
action to take repossession of the Software. No remedy made
available to a party by any of the provisions of this Agreement is
intended to be exclusive of any other remedy. Each and every
remedy shall be cumulative and shall be in addition to every other
remedy given hereunder, or now or hereafter existing at law or in
equity, or by statute or otherwise.
11. Definitions. The following terms shall have the
following meanings:
"Documentation" means the technical publications prepared and
delivered to you by WS or provided by WS relating to use of the
Software, such as reference, user, installation, systems
administrator and technical guides.
"Software" means those items of software, in object code format
only, proprietary to WS and/or its suppliers and/or licensors,
that you have ordered from WS pursuant to your download from and
under the terms of this Agreement.
12. Confidential Information. You agree that the Software
contains proprietary information, including trade secrets,
know-how, flow charts, logic diagrams, user manuals, screens, and
other such confidential information, that is the exclusive
property of WS ("Confidential Information"). During the period
this Agreement is in effect and at all times after its
termination, you, and, if appropriate, your shareholders, members,
directors, officers, employees and agents (collectively
"Representatives"), shall maintain the confidentiality of this
Confidential Information. Additionally, you and, if appropriate,
your Representatives shall not sell, license, publish, display,
distribute, disclose, or otherwise make available this
Confidential Information to any third party nor use such
information except as authorized by this Agreement. You will not
disclose any Confidential Information to any person who is not
your employee without the prior written consent of WS, which may
be withheld in WS’s sole discretion. Additionally, you will not
disclose Confidential Information to your employees other than to
enable such employee to perform his/her employment
responsibilities consistent with your rights under this Agreement.
Notwithstanding the other provisions of this Agreement,
information shall not be deemed Confidential Information, and you
shall have no obligation with respect to any information that (i)
is or becomes publicly known through no act or omission of you;
(ii) was or is received by you without restriction on disclosure
from a third party who disclosed the information without violating
any confidentiality restriction; (iii) is independently developed
by you without reference to WS’s Confidential Information; or (iv)
is divulged by you pursuant to statute, regulation, or the order
of a court of competent jurisdiction, provided you previously
notified WS to take appropriate protective measures.
You will safeguard and protect WS’s Confidential Information from
theft, piracy, or unauthorized access using the same standard of
care that you use to protect your own confidential information,
but in no event shall you use less than a reasonable standard of
care. You shall inform your employees, if applicable, of
their obligations under this Agreement and shall take such steps
as may be reasonable under the circumstances, or as may be
reasonably requested by WS, to prevent any unauthorized
disclosure, copying, distribution, or use of WS’s Confidential
Information. You acknowledge and agree that if you breach this
Agreement, WS may suffer irreparable injuries not compensated by
money damages and therefore shall not have an adequate remedy at
law. Accordingly, WS shall be entitled to a temporary restraining
order and a preliminary and final injunction without the necessity
of posting any bond or undertaking in connection therewith to
prevent any further breach of these confidentiality obligations or
further unauthorized use of WS’s Confidential Information. This
remedy is separate and apart from any other remedy WS may have at
law or in equity and/or otherwise provided under this Agreement.
You shall notify WS immediately upon discovery of any prohibited
use or disclosure of WS’s Confidential Information, or any other
breach of these confidentiality obligations by you. You shall
cooperate fully with WS to help WS regain possession of WS’s
Confidential Information and prevent the further prohibited use or
disclosure of WS’s Confidential Information.
13. Limitations Period. No action under this Agreement
may be brought by either party against the other party more than
one (1) year after the date the cause of action arises.
14. Notices. All notices under this Agreement are to
be in writing and delivered by (i) using a registered delivery
service that provides a delivery confirmation receipt, addressed
to the address specified at the beginning of this Agreement or to
any other address as the party may designate in writing, (ii) a
facsimile of the notice to the fax number set forth below or any
other telephone number as the party may designate in writing. The
notice shall be deemed delivered (i) if by registered delivery
service, the date of delivery, (ii) if by fax (910-420-1422), on
the date the notice is delivered.