WS WBEM WORKSHOP LICENSE AGREEMENT
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. 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.
5.1. 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.
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 Evaluation 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 Evaluation 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.
10.1. 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 youR 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 shall 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 form 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, on the date the notice is delivered.