IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT USE THE SOFTWARE. THIS LICENSE AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF THE LICENSE FOR THE PRODUCT MEDIA IN THIS PACKAGE AND ANY FURTHER PRODUCTS WHICH MAY BE RECEIVED UNDER THE TERMS OF THIS LICENSE AGREEMENT. USE OF THE ENCLOSED SOFTWARE BY YOU OR YOUR AGENT SIGNIFIES YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT.
DEFINITIONS: The following definitions are applicable to this License Agreement: “SOFTWARE” refers to the software program and all other material on the enclosed diskettes, CD–ROM, and/or distributed electronically; “Customer” means the entity who is entering into this License Agreement; “INSTALL” means to copy the SOFTWARE to a hard disk drive or similar storage device; “INSTALLER” refers to the SOFTWARE Installer, if applicable, which is configured for a certain number of computers; “USE” consists of loading the SOFTWARE into computer memory or running it on a central processing unit. “QUARK” means the entity granting this license to Customer under the terms and conditions of this License Agreement.
1. SOFTWARE LICENSE GRANT: Customer is granted a non-exclusive, non-transferable License to USE the SOFTWARE and documentation subject to the restrictions and terms set forth in this License Agreement. Customer may copy and freely transfer the SOFTWARE, provided that it includes all notices and markings, including copyright, trademark, and other proprietary notices as on the original.
2. RESTRICTIONS: The only right granted to Customer is the right to use the software and accompanying documentation in accordance with this License Agreement. All rights not expressly granted to Customer in this License Agreement are specifically reserved to QUARK. Customer does not receive or acquire any right, title, or interest to the SOFTWARE, or to any applicable patents, trademarks, copyrights or trade-secrets. Customer may not remove or alter any proprietary notices, labels, or trademarks on the SOFTWARE or accompanying documentation. Customer may not modify, translate, reverse engineer, disassemble, decompile, or otherwise derive source code from, the SOFTWARE or accompanying documentation, or use it as a basis for the preparation of other software programs or derivative works, or use it in any manner that infringes the intellectual property or other rights of QUARK or another party, except as permitted hereunder or under applicable law.
3. TERMINATION: Any failure to comply with the terms and conditions of this License Agreement shall result in automatic termination of this license. Upon termination of this License Agreement for any reason, Customer must destroy all copies of the SOFTWARE and accompanying documentation.
4. COMMUNICATION OF LICENSE AGREEMENT: Customer agrees to communicate the terms and restrictions contained in this License Agreement to all persons under his or her employment, direction, or control who have access to the software or accompanying documentation.
5. UNAUTHORIZED USE AND COMPLIANCE: Customer shall take reasonable efforts to prevent USE of SOFTWARE by any person or entity other than Customer or employee(s) of Customer. Customer shall use all reasonable efforts to see that employees, agents, assigns, or other persons under the direction or control of Customer who have access to the SOFTWARE or accompanying documentation abide by the terms and conditions of this License Agreement. Customer agrees to notify QUARK immediately in writing of any unauthorized use.
6. DISCLAIMER OF WARRANTIES: THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR COLLATERAL ARE DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ON-INFRINGEMENT, COMPATIBILITY, OR THAT THE SOFTWARE IS ERROR-FREE, OR THAT ERRORS CAN OR WILL BE CORRECTED. QUARK SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS, STATES, OR PROVINCES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO PARTICULAR CUSTOMERS.
7. SOFTWARE UPDATES: At QUARK’s sole discretion, QUARK may provide Customer with updates to the SOFTWARE. QUARK retains the right to provide the updates for a fee. Customer may refuse to accept the updates. The terms and conditions of this License Agreement apply to any and all updates and any additional terms and conditions that may apply at that time.
8. CUSTOMER RESPONSIBILITY FOR THE SOFTWARE AND COMPONENTS: Customer is solely responsible for selection of the SOFTWARE to achieve Customer’s intended results or for particular applications. QUARK is not responsible for lost or stolen SOFTWARE.
9. LIMITATION OF LIABILITY: REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PUPOSE, IN NO EVENT SHALL QUARK OR ANY ENTITY WHICH CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL OF QUARK BE LIABLE TO A CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST TIME, LOST SAVINGS, LOST DATA, LOST FEES, OR EXPENSES OF ANY KIND ARISING FROM INSTALLATION OR USE OF THE SOFTWARE OR ACCOMPANYING DOCUMENTATION IN ANY MANNER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. IN ANY EVENT, QUARK'S LIABILITY RELATING TO THE SOFTWARE SHALL BE LIMITED TO THE MONEY PAID FOR THE SOFTWARE. THESE LIMITATIONS WILL APPLY EVEN IF QUARK OR AN AUTHORIZED DEALER HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES. SOME JURISDICTIONS, STATES, OR PROVINCES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO PARTICULAR CUSTOMERS.
10. SEVERABILITY: If any provision of this License Agreement is declared by a court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining provisions.
11. GOVERNING LAW AND JURISDICTION: This License Agreement shall be governed by the laws of the State of Colorado. Customer agrees that the District Court for the City and County of Denver shall have jurisdiction and venue over any dispute arising out of this License Agreement and Customer’s USE of the SOFTWARE. The prevailing party shall be awarded reasonable costs for any legal proceedings relating to this License Agreement including reasonable attorneys’ fees and costs.
12. EXPORT RESTRICTIONS: Customer shall not export or transmit, directly or indirectly, any technical data or products received from QUARK to any country to which such export or transmission is restricted by regulation or statute of the United States government. Customer shall comply with all applicable export regulations.
13. TAXES: Customer shall pay any applicable taxes in respect of the Licenses granted and fees paid in connection with this License Agreement.
14. SURVIVAL: The provisions of Sections 2, 6, 7, 10, 11, and 13, and such other provisions which by their nature continue after termination, shall survive termination of this License Agreement.
15. ENTIRE LICENSE AGREEMENT: This License Agreement constitutes the entire agreement between parties pertaining to the subject matter hereof and supercedes all prior representations, warranties, conditions, agreements, and understandings, whether oral or written, express or implied, relating to this License Agreement. No supplement, modification, or waiver of this License Agreement shall be effective unless it is provided or approved by QUARK in writing.
