PowerQuest(R) SecondChance(TM) International License Agreement
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 ("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.
b. COMPUTER-SPECIFIC LICENSE. Each permitted copy of the Software may be used only in connection with a hard drive(s) that is (are) permanently connected to ONE specific computer (either a stand-alone computer or a computer connected to a network) owned or leased by the End User. Once a copy of the Software has been used on a computer, it may not be used on any other computer. If the Software is made available on a network, it may be accessed only by ONE specific computer. Once the Software has been accessed by ONE specific computer it may not be used on any additional computers without purchasing additional licenses.
c. NUMBER OF COPIES LICENSED. If the End User has NOT purchased a PROFESSIONAL LICENSE or a MULTIPLE PACK LICENSE, then the End User is authorized to use ONLY a single copy of the Software on a single computer. If the End User has purchased a PROFESSIONAL LICENSE, the End User must refer to the Professional License Agreement for specific terms and conditions. If the End User has purchased a MULTIPLE PACK LICENSE, the End User is authorized to use the Software on NO MORE THAN the number of computers for which the End User has purchased licenses. All copies of the Software must include the PowerQuest copyright, confidentiality, trademark, and patent notices. To purchase a PROFESSIONAL LICENSE or MULTIPLE PACK LICENSE, contact PowerQuest International Sales at 1(801)437-8900 or intlsales@powerquest.com.
d. UPDATES AND SUPPORT. The End User is entitled to receive 45/90 days of complimentary technical support from the date of the End User's first call to PowerQuest technical support (the "Complimentary Support Period"). At the expiration of the Complimentary Support Period, the End User may purchase technical support on a per incident or annual basis (the "Extended Support Period") by contacting PowerQuest Technical Support centers. For phone numbers of PowerQuest Support centers please see www.powerquest.com. IN NO EVENT, HOWEVER, SHALL THE AVAILABILITY TO THE END USER OF THE COMPLIMENTARY SUPPORT PERIOD EXTEND BEYOND A DATE 180 DAYS AFTER (i) THE RELEASE OF THE NEXT MAJOR VERSION OF THE SOFTWARE OR (ii) THE DISCONTINUATION OF THE SOFTWARE. THE AVAILABILITY TO THE END USER OF THE EXTENDED SUPPORT PERIOD SHALL EXTEND FOR NO MORE THAN 365 DAYS AFTER (i) THE RELEASE OF THE NEXT MAJOR VERSION OF THE SOFTWARE OR (ii) THE DISCONTINUATION OF THE SOFTWARE. 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 only version number changes to the hundredth decimal place) 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 professional licenses.
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 e(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. 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, including with respect to Software originating outside of the U.S. 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.
6. 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. Provided, however, that with regards to breach of warranty, the foregoing clause does not exclude or modify any condition or warranty implied into this License or any liability imposed on PowerQuest by any applicable law, including, but not limited to, the law of The Netherlands or of the End User's jurisdiction, if to do so would contravene that law or make any of this clause void ("Nonexcludable Warranty"). PowerQuest limits its liability for breach of a Nonexcludable Warranty to any one or more of the following (at PowerQuest's option): (i) replacement of the Software or the supply of equivalent products; (ii) repair of the Software; (iii) payment of the cost of replacing the Software or acquiring equivalent software; and/or (iv) payment of the cost of having the Software repaired. (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.
7. 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.
8. INDEMNITIES AND LIMITATION OF LIABILITY. (a) Subject to 8(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) Subject to contrary statutory requirements in the jurisdiction of origination of the Software or in the jurisdiction of the End User, PowerQuest's maximum liability to the End User under 8(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 8(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 8(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 UNDER ANY CIRCUMSTANCES AN AMOUNT EQUAL TO (FOR SOFTWARE ORIGINATING IN THE NETHERLANDS) DFL.200.000 (TWO HUNDRED THOUSAND DUTCH GUILDERS OR THEIR EURO EQUIVALENT), OR(FOR SOFTWARE ORIGINATING IN THE U.S. OR OTHER JURISDICTIONS WITH THE EXCEPTION OF THE NETHERLANDS) US$100,000.00 (THE "LIABILITY CAP"). IN PARTICULAR, IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER FOR AN AMOUNT EXCEEDING SUCH LIABILITY CAP BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THE LICENSE, 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 LICENSED SOFTWARE BY THE END USER. The liability of PowerQuest for damage resulting from (i) negligent breach of an essential contractual duty by PowerQuest resulting in the potential frustration of the contractual purpose or (ii) severe fault (e.g., gross negligence or willful misconduct) by PowerQuest shall remain unaffected by the above limitation. Provided further, that PowerQuest shall also be liable for negligence resulting in death, personal injury or damage to property, but such liability shall be limited to damages, which could reasonably be foreseen by PowerQuest taking into account the state of scientific and technical knowledge at the time the Software was put in circulation in the jurisdiction where the liability claim arose; furthermore, in this case PowerQuest shall not be liable for consequential losses or damages (whether for loss of profit, business interruption, loss of business information or otherwise). The exclusion or the limitation of claims under this provision encompasses claims against the End User staff (if any) or other persons authorized to act in the End User's behalf (if any).
9. 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). Provided, however, that mandatory statutory requirements (Ordre Public principles) of either the jurisdiction of origination of the Software or the jurisdiction of the End User, to the extent applicable and conflicting with the laws of the State of Utah, shall preempt the application of Utah law in respect only of those provisions of the License which are inconsistent with any such mandatory requirements. 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 License is held invalid or in the event of gaps in the text, 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 1911, Orem, UT 84059-1911, U.S.A.
Copyright 1994-1999, PowerQuest Corporation. All rights reserved. PowerQuest is a registered trademark of PowerQuest Corporation; SecondChance is a trademark of PowerQuest Corporation.
