The following summarizes the terms and conditions of licensing by and between Bankers Systems, Inc. and Uniform Information Services, Inc. d/b/a WOLTERS KLUWER FINANCIAL SERVICES having its principal place of business as 130 Turner Street, Waltham, MA 02453 ("WKFS") and licensees who access the software made available on this site.
ARTICLE I - LICENSE GRANT
1.1 Upon the terms and conditions set forth herein, WKFS hereby grants to Licensee a non-exclusive, non-transferable, unlimited (except as otherwise limited herein) multi-user license ("License") to access and use the Software including all documentation, trade secrets, know-how, data, and all proprietary information associated therewith, exclusively in conjunction with Licensee’s business. This access and use is granted for Licensee’s employees’ use during the term of this Agreement only.
1.2 Licensee will have the right to access and use the Software only at Licensee’s place(s) of business, as well as any other location where it does business where the performance or adherence of either a legal or compliance function, or both, reasonably requires such use. In addition, Licensee will have the right to authorize such of its employees as it deems appropriate, in the furtherance of either a legal or compliance function related to Licensee’s business, to access and use the Software at such employees’ residences on computers owned either by Licensee or the employees.
1.3 No license is granted by WKFS to Licensee, either directly or by implication, estoppel, or otherwise, in any patent, patent application, know-how, trade secret, or proprietary information other than the License granted hereunder.
ARTICLE II - ANNUAL LICENSE FEES
2.1 In consideration of the License granted hereunder, Licensee will pay to WKFS annual license fees (the "Annual License Fee") in the amounts and on the terms set forth in individually executed agreements, and referenced herein.
2.2 In addition to the Annual License Fee, Licensee will pay to WKFS any sales, excise, property, or other federal, state, local, or foreign taxes, duties, tariffs, or other assessments, only to the extent that payment of such taxes are required by federal or state laws (except if based on WKFS’ net income) in connection with the License granted under this Agreement.
ARTICLE III - CONFIDENTIAL INFORMATION
3.1 Both parties acknowledge and agree that all information and documentation made available or disclosed by the other party as a result of or related to or in carrying out this Agreement, or any negotiations therefore, will be deemed confidential (hereinafter referred to as "Confidential Information"). Both parties acknowledge that the Confidential Information is the property and trade secret of the other party and that any publication or disclosure to third parties of the Confidential Information may cause immediate and irreparable harm. Both parties will take all reasonable steps to maintain the confidentiality of the Confidential Information, but will have no liability for inadvertent or unauthorized breaches of confidentiality related to this Agreement which occur despite taking all such steps.
3.2 Both parties will not, without prior written consent of the other party, disclose, provide, or make available any of the Confidential Information in any form to any person, except to employees whose access is necessary to enable the parties to exercise their rights under this Agreement.
3.3 The confidentiality obligations will not apply to:
(a) information which at the time of disclosure is in the public domain;
(b) information which, after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement;
(c) information which the party can establish by reasonable proof was in its possession at the time of disclosure;
(d) information which the party receives from a third party which had a right to disclose such information; or
(e) information required to be disclosed pursuant to law.
ARTICLE IV - WARRANTIES AND LIMITATION ON LIABILITY
4.1 WKFS represents and warrants that it has the right to grant the License hereunder.
4.2 The Software is licensed to Licensee on an "AS IS" basis without any warranty of any nature, except as described above or as might exist under Section 4.3 below.
4.3 WKFS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WKFS WILL NOT BE LIABLE FOR ANY DAMAGE OR LOSS OF ANY KIND ARISING OUT OF OR RESULTING FROM LICENSEE’S POSSESSION OR USE OF THE SOFTWARE (INCLUDING DATA LOSS OR CORRUPTION), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT OR OTHERWISE. IF THE FOREGOING LIMITATION IS HELD TO BE UNENFORCEABLE, WKFS’ MAXIMUM LIABILITY TO LICENSEE WILL NOT EXCEED THE AMOUNT OF THE ANNUAL LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE. THE REMEDIES AVAILABLE TO LICENSEE AGAINST WKFS UNDER THIS AGREEMENT ARE EXCLUSIVE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
ARTICLE V - INDEMNIFICATION
5.1 WKFS indemnifies and holds Licensee harmless from liability to third parties arising from the violation of a third party’s intellectual property rights in connection with the License granted hereunder, provided that if Licensee receives notice from any third party alleging a violation of such third party’s intellectual property rights, Licensee will promptly notify WKFS. WKFS, may, at its sole option, conduct the defense of any such third party claim, and Licensee agrees to cooperate fully in such defense. This indemnification does not extend to liability which is wholly the fault of Licensee, nor does it extend to third party claims arising from modifications to the Software not authorized by WKFS
5.2 In the event that the claim of a third party results in Licensee’s quiet enjoyment and use of the Software to be reasonably impaired, WKFS will, at its sole option, (a) replace the Software with a functionally equivalent and non infringing system; (b) modify the Software to avoid infringement; (c) refund the Annual License Fee for the then current year and terminate the License hereunder; or (d) conduct the defense of any such third party claim, and Licensee agrees to cooperate fully in such defense. Upon a termination described in clause (c) above, Licensee will return to WKFS all Confidential Information that it has in its possession.
ARTICLE VI - MISCELLANEOUS
6.1 Assignment. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the parties. This Agreement may not be assigned without the prior written consent of the parties, which consent will not be unreasonably withheld. Any attempted assignment or transfer not permitted hereby is null and void.
6.2 Enforceability; Severability. If any provision of this Agreement is or becomes or is deemed, by a court of competent jurisdiction, invalid, illegal or unenforceable under the applicable laws or regulations of any jurisdiction, either such provision will be deemed amended to conform to such laws or regulations without materially altering the intention of the parties or it will be stricken and the enforceability of the remaining provisions will not in any way be affected or impaired thereby and the remainder of this Agreement will remain in full force and effect.
6.3 Damages. The parties acknowledge that neither will be entitled to receive punitive damages from the other in the event of a breach of this Agreement.