6.1
USE AND DISCLOSURE RESTRICTIONS.
DURING THE
TERM OF THIS AGREEMENT, AND FOR A PERIOD OF TWO (2) YEARS AFTER ANY TERMINATION
OF THIS AGREEMENT, EACH PARTY WILL NOT USE ANOTHER PARTY'S CONFIDENTIAL
INFORMATION EXCEPT AS PERMITTED HEREIN, AND WILL NOT DISCLOSE SUCH CONFIDENTIAL
INFORMATION TO ANY THIRD PARTY EXCEPT TO EMPLOYEES AND CONSULTANTS AS IS
REASONABLY REQUIRED IN CONNECTION WITH THE EXERCISE OF ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT (AND ONLY SUBJECT TO BINDING USE AND DISCLOSURE
RESTRICTIONS AT LEAST AS PROTECTIVE AS THOSE SET FORTH HEREIN EXECUTED IN
WRITING BY SUCH EMPLOYEES AND CONSULTANTS).
HOWEVER, EACH PARTY MAY DISCLOSE
CONFIDENTIAL INFORMATION OF ANOTHER PARTY:
(I) PURSUANT TO THE ORDER OR
REQUIREMENT OF A COURT, ADMINISTRATIVE AGENCY, OR OTHER GOVERNMENTAL BODY,
PROVIDED THAT THE DISCLOSING PARTY GIVES REASONABLE NOTICE TO THE OTHER PARTIES
TO CONTEST SUCH ORDER OR REQUIREMENT; AND (II) ON A CONFIDENTIAL BASIS TO LEGAL
OR FINANCIAL ADVISORS.
NOTWITHSTANDING THE FOREGOING, THE PARTIES'
CONFIDENTIALITY OBLIGATIONS WITH RESPECT TO ALL SOURCE CODE SHALL CONTINUE IN
PERPETUITY, UNLESS SUCH SOURCE CODE BECOMES NON-CONFIDENTIAL IN ACCORDANCE WITH
SECTION 6.2, BELOW.
6.2
EXCLUSIONS.
CONFIDENTIAL INFORMATION SHALL
NOT INCLUDE INFORMATION THAT:
(I) IS OR BECOMES GENERALLY KNOWN OR AVAILABLE BY
PUBLICATION, COMMERCIAL USE OR OTHERWISE THROUGH NO FAULT OF THE RECEIVING
PARTY; (II) IS KNOWN TO THE RECEIVING PARTY AT THE TIME OF DISCLOSURE WITHOUT
VIOLATION OF ANY CONFIDENTIALITY RESTRICTION AND WITHOUT ANY RESTRICTION ON THE
RECEIVING PARTY'S FURTHER USE OR DISCLOSURE; (III) IS INDEPENDENTLY DEVELOPED BY
THE RECEIVING PARTY WITHOUT USE OF THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION; OR (IV) IS RIGHTFULLY RECEIVED FROM A THIRD PARTY NOT UNDER AN
OBLIGATION AS TO DISCLOSURE OF SUCH INFORMATION.
7
7.
WARRANTIES
7.1
WES WARRANTIES.
(A)
WES REPRESENTS AND WARRANTS TO THE
PARTNERSHIP THAT:
(I) IT HAS FULL POWER AND AUTHORITY TO ENTER INTO THIS
AGREEMENT; (II) IT HAS SUFFICIENT RIGHT AND AUTHORITY TO CARRY OUT ITS
OBLIGATIONS HEREUNDER AND TO GRANT, ASSIGN OR CONTRIBUTE, AS APPROPRIATE, THE
ATLAS SOFTWARE, THE MARKS AND THE HARDWARE TO THE PARTNERSHIP HEREUNDER, AND
(III) TO WES' KNOWLEDGE, THE ATLAS SOFTWARE AND THE MARKS DO NOT VIOLATE ANY
RIGHTS RELATING TO THE INTELLECTUAL PROPERTY ANY THIRD PARTY.
(B)
WITHOUT LIMITING IN ANY WAY THE APPLICABLE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THE PURCHASE AGREEMENT, THE
WARRANTIES IN THIS SECTION 7.1 ARE IN LIEU OF ALL OTHER WARRANTIES MADE BY WES,
EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT, EXCEPT AS
SET FORTH IN THIS SECTION 7.1.
WES DOES NOT WARRANT THAT THE ATLAS SOFTWARE IS
ERROR-FREE OR THAT ANY USE THEREOF BY THE PARTNERSHIP OR ANY LICENSEE OR
SUB-LICENSEE WILL BE UNINTERRUPTED.
7.2
PARTNERSHIPWARRANTIES.
(A)
THE PARTNERSHIP REPRESENTS AND WARRANTS TO
WES THAT: (I) IT HAS FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND
(II) IT HAS SUFFICIENT RIGHT AND AUTHORITY TO CARRY OUT ITS OBLIGATIONS
HEREUNDER AND TO GRANT TO WES AND ITS AFFILIATES ALL LICENSES AND RIGHTS THAT
THE PARTNERSHIP IS