PowerQuest(R) Drive Image(R) Pro International Software License Agreement
(Workstation License)
IMPORTANT: Read this before using your copy of PowerQuest software.
(WARNING: For Austria, The Czech Republic, Hungary, Luxembourg, Poland,
Slovakia, Slovenia and Switzerland, please refer to the German version of
this Agreement)
This International Software License Agreement (Workstation License)
("License") is a legal agreement between you, the "End User", and
PowerQuest Corporation ("PowerQuest"). Use of the enclosed software
indicates the End User's acceptance of these terms. As used in this
License, the term "SOFTWARE" means the software included on the CD or
disk media provided with this License. The term "SOFTWARE" does not
include any software that is covered by a separate license offered or
granted by a person other than PowerQuest and this License does not
grant any rights in such software.
IF THE END USER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, THE END
USER MUST EITHER DESTROY OR RETURN, INTACT, THE SOFTWARE PACKAGE,
CONTAINING THE CD OR DISK MEDIA, TOGETHER WITH THE OTHER COMPONENTS
OF THE PRODUCT TO THE PLACE OF PURCHASE.
1. PROPRIETARY RIGHTS. The SOFTWARE and any associated documentation
are proprietary products of PowerQuest or its licensors and are
protected under U.S. and European copyright, trademark, patent, and
trade secret laws and international treaty provisions. Sole ownership
of the SOFTWARE and all copies, modifications, translations, and merged
portions thereof shall at all times remain with PowerQuest or its licensors.
2. GRANT OF LICENSE AND TERM. PowerQuest hereby grants to the End User
a non-exclusive, non-transferable license to use the SOFTWARE only in
accordance with the terms of this License. The SOFTWARE is considered
in use on a computer when it is loaded into temporary memory or
installed into permanent memory.
a. PERSONAL LICENSE. This License is personal (including with respect
to corporate entities) to the End User and the End User shall not assign or
transfer any interest in it or grant any right under it to any third party
or seek to exercise this License for the benefit or on the data of any
third party, except as set forth in paragraph 2(b) below.
b. WORKSTATION LICENSE. The End User is authorized to use the
SOFTWARE only on the number of computers for which the End User paid a
license fee to PowerQuest under this License. The End User's rights under
this License may be exercised by multiple individuals designated by the End
User (the "Designees"). If the End User needs to use the SOFTWARE on more
than the number of computers for which the End User paid the applicable
license fee, then the End User must purchase additional Licenses.
Additional Licenses may be purchased from PowerQuest International Sales
at 1(801) 437-8900 or intlsales@ powerquest.com.
c. NUMBER OF COPIES LICENSED. One copy of the SOFTWARE may be created
for each Designee exercising the End User's rights under this License.
In addition to SOFTWARE copies assigned to the relevant DESIGNEES, ONLY
one backup copy of the SOFTWARE may be created for archival or backup
purposes (IRRESPECTIVE of the number of Licenses purchased by the End
User). If a Designee discontinues use of the SOFTWARE, all copies of the
SOFTWARE assigned to such Designee must either be destroyed or transferred
to another individual designated by the End User (the "New Designee").
All copies of the SOFTWARE must include the PowerQuest copyright,
confidentiality, trademark, and patent notices.
d. BOOTMAGIC SOFTWARE. If the SOFTWARE includes a copy of PowerQuest
BootMagic(TM), the rights granted in paragraphs 2(b) and 2(c) do not apply
to BootMagic. The End User may use ONE copy of BootMagic on ONE PC for
evaluation purposes only. Additional licenses for BootMagic may be
purchased from PowerQuest by contacting PowerQuest International Sales at
1(801) 437-8900 or intl sales @powerquest.com.
e. TERM. (i) This License is effective from the date of purchase of
the License and shall remain in force until terminated. The End User may
terminate this License at any time by destroying the SOFTWARE and its
associated documentation, together with all copies in any form. (ii)
Notwithstanding subparagraph d(i) above, this License may be terminated at
any time by written notice of termination given by PowerQuest to the End
User in any of the following circumstances: (A) If the End User shall
expressly or impliedly repudiate this License by refusing or threatening
to refuse to observe any of the conditions to which this License is
subject; or (B) If the End User shall fail to make any payment due under
and pursuant to this License or to observe any of the conditions to which this License is subject and, after the End User's attention has been drawn by notice to such failure, shall fail to remedy the matter to PowerQuest's reasonable
satisfaction within thirty days of the giving of such notice; or (C) If the End User shall have a receiver or administrative receiver or administrator appointed or shall enter into liquidation whether compulsory or voluntary or if the End User shall be unable to pay its debts as and when they fall due. (iii) On expiry, surrender or other termination of this License, however such termination may arise, the End User shall cease to load, store, copy or use the Software and the associated documentation, shall delete the SOFTWARE from its computers and shall either surrender the SOFTWARE and the associated documentation, together with all copies in any form, to PowerQuest or shall destroy the same. The End User shall continue after termination to observe and enforce confidentiality and secrecy in respect of the SOFTWARE and its associated documentation for the benefit of PowerQuest, and however termination may occur it
shall not prejudice any right of action or remedy which may have occurred prior to termination.
3. BACKUP COPY. In addition to any copies authorized for use under
this License, the End User may make a single copy of the SOFTWARE solely
for backup purposes.
4. INTEGRITY OF THE SOFTWARE. The End User shall not enhance or vary any
part of the SOFTWARE nor procure or permit the whole or any part of the
SOFTWARE (whether in its original or in any updated, enhanced or varied
form) to be incorporated into any other software or computer system.
Translations, reverse programming, disassembling and reverse engineering
of the SOFTWARE are expressly prohibited. Provided, however, that nothing
in these conditions shall restrict (i) decompilations, notwithstanding that
decompilation may involve adaptation, if the sole purpose of such
decompilation is to achieve the interoperability of an independently
created program with other programs, or (ii) any other act permitted to the
End User by applicable laws and regulations of the End User's jurisdiction.
5. UPDATES AND SUPPORT. The End User is entitled to receive 45 days
technical support from the date of first contact to PowerQuest technical
support. Technical support shall be limited to telephone or e-mail support
from PowerQuest's offices, unless PowerQuest specifically agrees otherwise. The End User is entitled to receive SOFTWARE updates (updates are indicated by version number changes to the right side of the decimal) in accordance with PowerQuest policies as announced from time to time on terms comparable to those offered to other users of the SOFTWARE under the workstation License.
6. EXPORT CONTROLS. Certain uses of the SOFTWARE by the End User may be
subject to restrictions under U.S. regulations relating to exports and
ultimate end uses of computer software. The End User agrees to fully
comply with all applicable U.S. laws and regulations, including but not
limited to the Export Administration Act of 1979 as amended from time to
time and any regulations promulgated thereunder.
7. LIMITED WARRANTY. (a) PowerQuest warrants to the End User, (i) that
the SOFTWARE (not including any third-party software) will perform substantially in accordance with the associated documentation and (ii) that the SOFTWARE is properly recorded on the disk media. This Limited Warranty extends for ninety (90) days from the date of purchase of this License. PowerQuest does not warrant any third-party software that is provided with the SOFTWARE, but PowerQuest agrees to pass on to the End User any warranties of the owner or licensor to the extent permitted by the owner or licensor. (b) This Limited Warranty does not apply to any SOFTWARE that has been altered, damaged, abused, mis-applied, or used other than in accordance with this License and any instructions included on the SOFTWARE and the associated documentation. (c) PowerQuest's entire liability under this Limited Warranty shall be the repair or replacement of any SOFTWARE that fails to conform to this Limited Warranty or,
at PowerQuest's option, the return of the price paid for this License.
PowerQuest shall have no liability under this Limited Warranty unless the
SOFTWARE is returned to PowerQuest or its authorized representative, with
a copy of the End User's receipt, within the warranty period. Any
replacement SOFTWARE will be warranted for the remainder of the original
warranty period or 30 days, whichever is longer. (d) THIS WARRANTY IS IN
LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN,
WHETHER EXPRESS OR IMPLIED, SUBJECT TO CONTRARY ORDRE PUBLIC REQUIREMENTS
IN THE END USER'S JURISDICTION. (e) The End User's failure to return the
enclosed registration card or complete the electronic registration included
with the SOFTWARE may result in PowerQuest's inability to provide the End
User with updates to the SOFTWARE, and the End User assumes the entire
risk of performance and result in such an event.
8. CONFIDENTIALITY AND CONTROL OF THE SOFTWARE. The SOFTWARE, all
associated documentation, and all copies are secret and confidential to
PowerQuest and shall be retained under the effective control of the End
User during the period of this License. The End User shall take all
measures necessary to preserve confidentiality and secrecy in the SOFTWARE
during the period of this license and after its termination, however such
termination may arise.
9. INDEMNITIES AND LIMITATION OF LIABILITY. (a) Subject to 9(b) below,
PowerQuest warrants to the End User that the Software as supplied by
PowerQuest will not infringe any copyright, patent or other intellectual
property right of any third party. Conditionally upon the End User's
promptly giving notice to PowerQuest of any claim of alleged infringement
and allowing PowerQuest to have sole control of negotiations on, and any
defense of the claim, PowerQuest shall in its discretion and at its own cost either compromise or defend the claim and shall hold the End User harmless from any resulting final judgment, order or settlement. PowerQuest shall have the right to replace or change the SOFTWARE so as to avoid infringement and require the End User to accept a license to use such replaced or changed SOFTWARE in substitution for this License, provided that the SOFTWARE as substituted is substantially suitable for the End User's
utilization. (b) PowerQuest's maximum liability to the End User under 9(a)
above shall not exceed the License fees actually paid by the End User for
the SOFTWARE. If PowerQuest becomes aware of a potential claim under 9(a)
above, PowerQuest shall be entitled then or at any time thereafter to
discharge its liabilities (including potential, accruing and accrued
liabilities) to the End User under 9(a) above by requiring the End User to
surrender this License and to cease use of the SOFTWARE upon PowerQuest's
paying to the End User a sum equivalent to the maximum amount of
PowerQuest's liability as stated above. (c) GENERAL LIMITATION OF
LIABILITY AND INDEMNITIES. POWERQUEST'S MAXIMUM LIABILITY RELATED TO ANY
OF THE SOFTWARE SHALL NOT EXCEED THE LICENSE FEES ACTUALLY PAID BY THE
END USER FOR THE SOFTWARE.
FOR BELGIUM, FRANCE, IRELAND, AND THE NETHERLANDS: IN NO EVENT SHALL
POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF (a) DEATH,
PERSONAL INJURY OR DAMAGE TO PROPERTY CAUSED BY POWERQUEST'S NEGLIGENCE OR
(b) POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR AN AMOUNT IN
EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b)
ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR
OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR
ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF
OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE
USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR GREECE: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY POWERQUEST'S FRAUD OR GROSS NEGLIGENCE, FOR AN AMOUNT IN EXCESS OF THE
MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON
OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY
DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL
LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS
OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH
ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE
THE SOFTWARE BY THE END USER.
FOR ITALY: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT
IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY
POWERQUEST'S FRAUD OR GROSS NEGLIGENCE OR VIOLATION OF A DUTY ARISING
FROM APPLICABLE ORDINE PUBBLICO RULES, FOR AN AMOUNT IN EXCESS OF THE
MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY
REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER
TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY
CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF
OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE
USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR DENMARK, FINLAND AND NORWAY: IN NO EVENT SHALL POWERQUEST BE LIABLE
TO THE END USER, EXCEPT (i) IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED
BY POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (ii) IF SUCH
LIABILITY LIMITATION IS UNREASONABLE UNDER ALL RELEVANT CIRCUMSTANCES,
FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY
AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED
WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS
OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS
OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR
OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF
POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE
END USER.
FOR PORTUGAL: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR AN AMOUNT IN
EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 8(b)
ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR
OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR
ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE AND WHETHER
OCCASIONED BY POWERQUEST'S NEGLIGENCE OR ITS AGENTS OR OTHER
REPRESENTATIVES) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR
OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE
SOFTWARE BY THE END USER.
FOR SPAIN: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY POWERQUEST'S BAD FAITH CONDUCT, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM
AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY
REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT
LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR
DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR
OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE
BY THE END USER.
FOR SWEDEN: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR AN AMOUNT IN
EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b)
ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR
OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR
ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR
IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR
INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR THE UNITED KINGDOM: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END
USER, EXCEPT IN RESPECT OF (a) DEATH OR PERSONAL INJURY CAUSED BY
POWERQUEST'S NEGLIGENCE OR (b) DAMAGE TO PROPERTY OR OTHER LOSS CAUSED BY
POWERQUEST WHERE SUCH LIABILITY LIMITATION IS UNREASONABLE UNDER ALL
RELEVANT CIRCUMSTANCES. FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF
POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY
REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY
AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS
OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH
ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE
THE SOFTWARE BY THE END USER.
10. This License constitutes the entire agreement between the End User
and PowerQuest pertaining to its subject matter. This License is
governed by the laws of the State of Utah (except that body of laws
controlling conflict of laws). Any litigation arising from this license
will be pursued only in the state or federal courts having appropriate
jurisdiction located in the State of Utah. Even if part of the agreement
is held invalid, the rest of the agreement shall still be valid, binding
and enforceable. The failure of either party to exercise a right does
not waive future exercise of that right or other rights.
Should the End User have any questions concerning this License, or if
the End User desires to contact PowerQuest for any reason, please
write: PowerQuest Corporation, P.O. Box 1991, Orem, UT 84059-1911,
U.S.A.
Copyright 1994-1999, PowerQuest Corporation. All rights reserved. U.S.
patents 5,675,769; 5,706,472; and 5,930,831; other patents pending in
the U.S.A., the European Union, and elsewhere. PowerQuest and Drive
Image are registered trademarks of PowerQuest Corporation.
