End User License Agreement
This Quark End User License Agreement (“EULA”) accompanies all Quark products and related explanatory materials (“Software”). Please read this License Agreement carefully. Use of the Software is subject to the terms of this EULA or other applicable agreements for such products/services. In the event of a conflict between agreements and these provisions the relevant agreements shall control.
IF YOU PURCHASED A DESKTOP LICENSE: BY OPENING THE PRODUCT PACKAGE OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, INCLUDING THE LICENSE COMPLIANCE TERMS OF SECTION 2.1.2. IN ORDER TO INSTALL THE SOFTWARE YOU MUST ACKNOWLEDGE YOUR ACCEPTANCE BY CLICKING THE ICON.
IF YOU PURCHASED AN ENTERPRISE LICENSE: BY USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU HAVE RECEIVED A DEVELOPER KIT: BY USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT
This End User License Agreement (“License Agreement”) is between Quark Software, Inc., a Delaware corporation (“Quark”) and you (“You” or the “End User”) and sets forth the terms under which You may Use the Software.
YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE. IF YOU ACQUIRED THE SOFTWARE WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE PURCHASE DATE.
1.1 “Authorised Integrator” means an entity that has been authorised by Quark to distribute the Quark Products to End Users.
1.2 “Currently Licensed Configuration” means the specific configuration of the Quark Products that were licensed to End User as described on the applicable invoice. Due to certain technical limitations, the software configuration delivered to End User may exceed the software configuration licensed to End User. In these cases, Quark reserves the right to evaluate End User’s use of the Quark Products, and, if unauthorised activity has or is occurring, Quark will notify End User to cease the unauthorised activities. If the unauthorised activities continue, then Quark will exercise its rights outlined herein.
1.3 “Desktop Product” refers to QuarkXPress, QuarkCopyDesk and any other Quark Product that is not an Enterprise Product
1.4 “End User Kits” means software developer kits or XTensions developer kits for Quark Products.
1.5 “Documentation” means the following documentation, in whatever medium provided, which accompanies the Quark Products: the user manual, any technical release notes, Readmes and other technical supporting documentation.
1.6 “End User” means the entity that uses the Quark Products covered by this License Agreement. The rights granted to End User hereunder shall extend to any other entity which directly or indirectly controls, is controlled by, or is under direct or indirect common control with, the End User (“End User Affiliates”); provided, however, that End User shall be responsible for End User Affiliates and such companies shall agree to be bound by the terms of this License Agreement. Use of the Quark Products by End User Affiliates shall constitute the agreement and consent of such companies to be so bound.
1.7 “Enterprise Product” means a Quark Product specifically designed as a server-based application, intended for use on a distributed or multi-user system, such as a local-area or wide-area network, intranet, or multi-user accessible computer.
1.8 “Evaluation Software” means the evaluation software product(s), including components thereof owned by or licensed to Quark. Certain additional and/or different terms may apply to Evaluation Software as described in Section 11 below.
1.9 “Evaluation Software Package” means the Evaluation Software, its hardware components, if any, and all associated documentation whether provided in tangible or electronic form. Certain additional and/or different terms may apply to the Evaluation Software Package as described in Section 11 below.
1.10 “Install” means to copy the Software to a hard disk drive or similar storage device.
1.11 “Integration Code” means software components developed by Integrator, including applicable technical and user documentation, that integrates Integrator or third party applications with Quark Products.
1.12 “License Agreement” means this document, additional terms and conditions specifically referenced and included in this document.
1.13 “License Fees” means the fees which End User pays to Quark for the license of the Quark Products hereunder. License fees do not include applicable taxes and shipping, which are the responsibility of End User.
1.14 “Previous Sequential Release” means a release of the Quark Products for use in a particular operating environment which has been replaced by the current release for the same operating environment.
1.15 “Principal place of business” shall mean the address at which End User represents is the location of its principal business operations.
1.16 “Quark Products” shall refer to the singular or the plural, as the case may be, and to the specific product release, platform, language, and configuration of the software programs licensed to the End User, together with all documentation, materials, updates, upgrades, patches, corrections, XTensions software, End User Kits, add-on components, fixes, supplements, validation codes, QLA files, license files or modules, and any additional related software (unless provided under the terms of a separate agreement), in whatever product medium provided to End Users, whether received contemporaneously with this License Agreement or thereafter, directly or through Authorised Integrators and by whatever technological means, including delivery over the Internet or pursuant to means made possible by technological advancements.
1.17 “Quark Product Components” means the individual software elements, standard and optional, developed by or licensed to Quark, which comprise the respective Quark Products.
1.18 “Update” means any modification, correction or alteration to a Quark software product that provides limited enhancement to functionality, and is designated by an increase in the version number to the right of the decimal point.
1.19 “Upgrade” means a new release version of a Quark software product that includes significant new features and/or functionality and is designated by an increase in the version number to the left of the decimal point.
2 LICENSE GRANT.
2.1 IF YOU PURCHASED A DESKTOP LICENSE: End User 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. Licenses granted on a subscription basis will automatically renew at the end of the applicable subscription term in accordance with Apple’s auto renewable subscriptions process. You or Quark may elect not to renew the applicable subscription through Apple’s mechanism for such process. End Users who have purchased a single-user License may Install and Use the Software on two desktop computers for non-concurrent use only. End Users who have purchased a multi-user License may Install the Software on the number of desktop computers they choose for their own use and allow Use of the Software subject and pursuant to Section 2.1.1 (regarding the license administrator technology, QLA). End User is prohibited from sharing the Software with a third party who is not subject to the terms of this Agreement. If this product does not contain license administration technology, then End Users who have purchased a multi-user License may Install the Software on the number of desktop computers and allow Use of the Software by the number of users for which End User is licensed. Documentation received in electronic form may only be used and accessed by the number of users for which End User is licensed. Otherwise, Documentation may not be copied, accessed by multiple users or distributed without Quark’s written consent. End Users with multi-user licenses must install QLA as described in Section 2.1.1. QLA may be installed on a server and used over a network; provided, however, that End User may only access its Purchased Licenses and the permitted number of Auxiliary Licenses pursuant to Section 2.1.1. Other than as stated herein, End User may not Install or Use the Software on a distributed or multi-user computer system, such as a local area or wide area network, intranet, the Internet, or multi-user accessible computer, or any other computer or electronic device now known or hereinafter developed (“Device”); the Software must be Used on a local hard drive only. The limitations/restrictions on Use contained herein apply to any indirect connections made through “multiplexing” or other hardware or software which pools or aggregates connections. A license for the Software may not be shared or used concurrently. End User may not permit any Device to Use the Software or the Software’s user interface unless the Device has a separate license for the Software. There are technological measures in the Software that are designed to prevent unlicensed or illegal use of the Software. You agree that we may use those measures. End User may make a single copy of the Software as an archive copy, provided that it includes all notices and markings, including copyright, trademark, and other proprietary notices as on the original, and which may not be in Use at any time, unless the original is damaged beyond use, and must remain in the possession and control of End User. Should the End User download or otherwise receive a digital copy of the Software and/or Documentation, and then be provided with the Software and/or Documentation in tangible media form, such as a CD-ROM, the End User acknowledges that use of the Software and Documentation is still subject to the foregoing restrictions. Software which is “Not for Resale” or “NFR” as indicated on the product packaging, the product media and/or the serial number may not be resold, or otherwise transferred for value. If the Software is for educational institutions or students, End user must meet Quark’s qualifications for Use of such Software.
2.1.1 LICENSE ADMINISTRATION TECHNOLOGY. This product may contain license administration technology (“QLA”). End Users with multi-user Licenses must install QLA. QLA is license administration technology which also allows the End User with multiple licenses the convenience to exceed the number of licenses which are legally licensed to End User (“Purchased Licenses”) by a number which is specified by End User and agreed to by Quark (“Auxiliary Licenses”); provided, however, that End User pays the license fees which correspond to the number of Auxiliary Licenses which End User utilises. End User acknowledges that QLA utilises a secured communications link between End User and Quark, via the Internet or technology which may hereinafter become available, through which license files are made available to End User and information concerning End User’s usage may be transmitted to Quark. End User may elect not to use Auxiliary Licenses in which case End User’s rights are limited to Purchased Licenses. Use of Auxiliary Licenses is subject to Quark’s consent and sole discretion.
End User agrees that its use of Auxiliary Licenses shall be subject to the terms of this License Agreement. Upon the request of End User and with the consent of Quark, Auxiliary Licenses are made available to End User on a temporary basis subject to payment of applicable license fees. Once payment is received, Quark will make available to End User a new license file to reflect the revised number of Purchased Licenses. End User agrees to pay Quark for all Auxiliary Licenses which End User utilises. Failure to pay or other violations of this Agreement may result in suspension or revocation, in Quark’s sole discretion, with or without notice, of End User’s ability to utilise current and future Auxiliary Licenses, in addition to all other rights and remedies available to Quark in law or equity. Auxiliary Licenses may contain technology designed to render them inoperable after a certain period of time. The inoperability of Auxiliary Licenses or the denial, suspension or revocation of End User’s ability to utilise Auxiliary Licenses does not in itself affect End User’s right to Purchased Licenses. Section 7 (regarding termination of this License Agreement) shall continue to apply. End User agrees that all Purchased Licenses are subject to the terms of this License Agreement. Quark assumes no liability arising from End User’s use of or inability to use QLA, Auxiliary Licenses, or license files
2.1.2 SOFTWARE UPDATES; LICENSE COMPLIANCE. You agree that the Software may collect and communicate certain software, hardware, and use information to Quark’s (or its service providers’) servers for the purposes of (i) checking for and performing any updates; and (ii) ensuring that You have complied and are complying with the terms of this License Agreement, including the use of valid serial numbers and validation codes. Quark will not provide any information gathered in connection with this process to any third party except (i) to Quark’s license tracking service providers; (ii) as may be require by law or legal process, or (iii) to enforce compliance with this License Agreement and the serial number and validation code requirement described above. BY USING THE SOFTWARE, YOU ACKNOWLEDGE AND CONSENT TO THE COLLECTION, USE AND TRANSFER (INCLUDING TO THE UNITED STATES) OF PERSONAL DATA FOR THE PURPOSES OF IDENTIFYING USERS OF ILLEGAL COPIES OF QUARK SOFTWARE.
2.1.3 CONSOLIDATION OF LICENSES. Consolidation of multiple single-user licenses, multiple multi-user licenses, or a combination of both under one consolidated multi-user license may be possible under certain circumstances and in Quark’s sole discretion. Consolidated licenses are subject to the restrictions on multi-user licenses contained herein. If the serial number of any single-user or multi-user Software is covered by or merged into a new consolidated license, then the right of End User to use that single-user or multi-user Software under this License Agreement is replaced, terminated, and superseded by the right of End User to use the consolidated Software. End User then no longer has the right to use any single-user or multi-user Software having a serial number covered by the consolidated license.
2.2 IF YOU PURCHASED AN ENTERPRISE LICENSE: In consideration for the payment by End User of the License Fees and subject to the provisions of this License Agreement, Quark hereby grants to End User a limited, non-exclusive, non-transferable and non-sublicensable license to use the Quark Products in accordance with the Currently Licensed Configuration for the internal activities of End User. End User may permit its authorised contractors and consultants access to the Quark Products, provided that the Quark Products are used in accordance with the license grant hereunder, the contractor/consultant agrees to be bound by the terms of this License Agreement and End User shall be responsible to Quark for all acts or omissions of its contractors/consultants with respect to the Quark Products. If the Quark Products are licensed based upon number of users or seats, End User shall only add additional users or seats to existing licenses of Quark Products subject to the payment of mutually agreed upon License Fees. Additional licenses of the Quark Products and any new Quark Products may be granted to the End User in the sole discretion of Quark and nothing herein shall be construed to obligate Quark to extend additional licenses to End User. Licenses granted on a perpetual basis shall be perpetual subject to the termination provisions contained herein. Licenses granted on a subscription basis will automatically renew at the end of the applicable subscription term in accordance with Apple’s auto renewable subscriptions process.
2.2.1 Archive Copy/Failover Server. End User may make one (1) copy of the Quark Products for archival purposes only. The archival copy may not be sold or transferred, and must be stored in a safe and secure location. End User may elect to store the archival copy on: (i) the storage area network currently utilised by End User, or (ii) a “hotsite” or other redundant data center which houses failover servers, data storage devices and other equipment which would be used in case of equipment failure or other service interruption. The archival copy shall only be used in the event of an equipment failure or other service interruption or in the event that the original Quark Product Component is damaged or destroyed, and must be used in accordance with the terms of this License Agreement. In no event shall the archival copy be used concurrently with the original Quark Products licensed hereunder.
2.3 LICENSE TERMS FOR DEVELOPER KITS: Quark grants to End User a non-exclusive, non-transferable, non-assignable and limited license to use and modify the Developer Kits solely for the following purposes: (i) to create Integration Code; and (ii) to integrate Quark Products with third party applications.
2.4 End User understands and acknowledges that some Quark Product Components are licensed to Quark by third-parties. Such third parties may require End User’s compliance with terms and conditions in addition to those set forth herein. In such event, such terms will be included with the third-party component in question in accordance with the requirements placed upon Quark by the third-party. End User shall be responsible for complying with the terms and restrictions of any license agreements applicable to third-party software which End User supplies and uses with the Quark Products.
2.5 End User acknowledges that the Quark Products comprise a sophisticated computer software system, utilising interrelationships of several different components and that End User may use the Quark Products for unique and complicated business functions in a demanding business environment. End User is solely responsible for the evaluation of the Quark Products and the determination as to whether the Quark Products are suitable for End User’s needs. All matters relating to the operations of the End User, including evaluation of the appropriateness of the Quark Products, the particular Quark Product Components to be licensed, the Currently Licensed Configuration, the selection and installation of hardware and software, networking decisions, conversion and management are the sole responsibility of End User or any Authorised Integrator working with End User.
2.6 Some Quark Products may include functionality for creating embedded applications for devices running Apple’s iOS. Quark does not set a predetermined limit on the number of such applications you can create, but other restrictions apply including, without limitation: (i) any technical or third party limits to the number of applications you create; (ii) use of the Quark Product does not entitle you to access the Apple App Store, and any use of the Apple App Store is subject to your compliance with Apple’s applicable terms and conditions; (iii) you may not use the Quark Products to create applications for or on behalf of third parties, except in connection with for-profit professional services where the creation of an application is incidental to fees charged for the creation and/or layout of content for the customer; and (iv) the application creation functionality in a Quark Product is only supported in the current and immediately prior major release. Further, Quark may, at any time and in its sole discretion, disable the application creation functionality without notice. Quark does not guarantee compatibility with any third party hardware or software.
3 LICENSE RESTRICTIONS.
3.1 Restrictions Applicable to All Quark Products
3.1.1 Reservation of Rights. End User does not receive title to the Quark Products, or to any part thereof. Quark and its licensors retain all right, title and interest, including the intellectual property rights, in and to the Quark Products and related copyrights, patents, trademarks and trade dress. The Software is licensed not sold. End User may not remove or alter any proprietary notices, labels or trademarks on the Quark Products or accompanying documentation. End User shall not publish the results of any benchmark tests run on the Quark Products or Quark Product Components, nor disclose performance results to any third party without Quark or its relevant Licensor’s consent. End User shall not modify, translate, copy, reproduce, reverse engineer, disassemble, decompile, decrypt or otherwise derive source code from the Quark Products, any portion thereof or accompanying documentation, or use the Quark Products as a basis for the preparation of other software programs or derivative works, or use the Quark Products in any manner that infringes the intellectual property or other rights of Quark or any other party, except as expressly permitted hereunder or under applicable law. Any extension of functionality for a Quark Product may only be done through the programmer’s interface (API), available from Quark to authorised XTensions developers as a Software Development Kit (SDK or XDK) and to End Users through XTensions software. The Quark Products, including any associated intellectual property rights, or intellectual property which results from the provision of the Maintenance Services, are and shall remain the sole property of Quark, regardless of whether End User, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid Quark for the use of the work product, unless otherwise explicitly agreed by the parties in writing.
3.1.2 End User shall not perform services using the Quark Products or the Quark Product Components for third parties outside the normal scope of End User’s current and ongoing internal business activities, except with the prior written consent of Quark and its relevant licensors. The Quark Products may not be rented, loaned, leased, sold, distributed, made available, directly or indirectly, for use by any other person or entity not covered by this License Agreement, used to provide commercial hosting or application service provider services or otherwise transferred, transmitted, or used except as expressly authorised under this License Agreement. ALL RIGHTS NOT EXPRESSLY GRANTED TO END USER IN THIS AGREEMENT ARE RESERVED TO QUARK AND ITS RESPECTIVE LICENSORS.
3.1.3 No Source Code License. Copies of the Quark Products shall be in machine readable object code form only. Human readable source code for Quark Products is not licensed or provided under this Agreement.
3.2 Restrictions Applicable to Desktop Products. The Software and accompanying Documentation may not be transmitted or accessed electronically, including via the Internet or any Device, rented, loaned, leased, sold, distributed, made available, directly or indirectly, for use by any other person or entity not covered by this License Agreement, used to provide commercial hosting or application service provider services or otherwise transferred, transmitted, or used without authorisation under this License Agreement.
3.3 Restrictions Applicable to Enterprise Products. Apart from any remote access of the Quark Products permitted under the Currently Licensed Configuration, changes in the physical location of the Quark Products or Quark Product Components may only be made upon written notice to Quark.
3.4 Restrictions Applicable to Developer Kits.
3.4.1 End User may distribute Integration Code developed for the applicable Quark Product only if (i) the Integration Code is distributed in object code form only (not source code); (ii) the End User is in complete compliance with the terms of this Agreement; and (iii) the Integration Code is distributed under an end-user license agreement with terms no less restrictive than those contained herein.
3.4.2 End User shall not develop Integration Code that would violate the terms of the end-user license for the Quark Product or that would deprive Quark of license fees for the Quark Product or any other Quark Product or that circumvents the QLA or other license administration technology used in conjunction with Quark Products.
3.4.3 End User shall not use any of the materials or know-how contained in the Quark Developer Kits, directly or indirectly, to develop software products that are competitive with any Quark products.
3.4.4 Server Environment. End User shall not develop Integration Code that would allow end user(s) to install, access, or use the Quark Products, except Quark Products specifically designed as server-based applications, on a distributed or multi-user system, such as a local-area or wide-area network, intranet, or multi-user accessible computer, or perform any other action that would be a breach of the terms of the end-user license agreement for the Quark Product.
3.4.5 Application Service Provider. End User shall not develop XTensions Software that permits the Quark Products, except Quark Products specifically designed as server-based applications, to be used by an application service provider or otherwise hosted to permit multiple-user access.
3.4.6 Internet. End User shall not develop XTensions Software that permits access to the Quark Products, except Quark Products specifically designed as server-based applications, via the Internet to multiple users without the prior written consent of Quark, or performs any other action that would be a breach of the terms of the end-user license agreement for the Quark Product.
3.4.7 No Open Source. End User shall not use, integrate, combine, or otherwise exercise any license rights under this Agreement in any manner that would render the source code contained in the Quark Developer Kits or any component thereof as Open Source Software. As used herein, “Open Source Software” means any software that (in whole or in part) includes, or is otherwise derived in any manner from, any software that is distributed under conditions that include: (i) licensees of such software are authorised to access, modify, and make derivative works of the source code for the software; (ii) licensees of source code of such software are not obligated to maintain the confidentiality of such source code; and (iii) licensees of such software are required, even under limited circumstances, to grant licenses to the source code or derivative works thereof, that licenses include rights to the licensee’s intellectual property.
3.4.8 Import and Export Filters. You may include import and export filters for the Quark Products in Integration Code that allow the transfer of content between the Quark Products. With the prior written consent of Quark, You may include export filters for the Quark Product in XTensions Software that allows the transfer of page geometry from the Quark Product to other programs. You shall not use the Developer Kit to develop any product that converts, deconstructs, or allows the taking apart or reuse of files or portions of files of any Quark Product for use with other programs without the prior written permission of Quark.
4 CERTIFICATIONS/AUDIT RIGHTS.
End User agrees that upon written request from Quark or Quark’s authorised representative, End User will within thirty (30) days fully document and an authorised officer will certify in writing that use of the Quark Products at the time of the request is in conformity with End User’s Currently Licensed Configuration and the terms of this License Agreement (“Certification(s)”). In addition, End User agrees that Quark shall have the right, upon two (2) business days’ notice, to perform an audit, electronically, in person or through means of technology now existing (including the Internet) or which may become available, of End User’s relevant system(s) to determine the current configuration of End User’s Quark Products or to otherwise verify End User’s compliance with this License Agreement; provided, however, that Quark will do so only to the extent necessary to accomplish said verification and will keep confidential in accordance with this License Agreement any nonpublic information related to End User discovered during said process; provided, however, that Quark may share usage information as regards third-party Quark Product Components with the licensor of such component. If any such audit reveals use by End User contrary to the terms of this License Agreement, End User agrees to pay to Quark and/or its relevant licensors the cost of the audit plus any additional License Fees and any other fees which would apply to such use within thirty (30) days of written notice by Quark, or Quark may immediately terminate this License Agreement and pursue all rights and remedies available to it by law or in equity. Certifications may be requested by Quark at any time. Audits shall be made no more than once annually, unless otherwise ordered by a court of competent jurisdiction or in the event End User fails to make a Certification.
In consideration for the license and any services provided hereunder, End User shall pay the fees for the Quark Products, all applicable maintenance fees and/or maintenance plans for the Quark Products covered under this License Agreement. All fees are exclusive of, and End User shall be solely responsible for, all value added, sales, use, import, customs or other taxes, imports or duties applicable to the transactions contemplated by this License Agreement, except for any taxes based upon Licensor’s net income. Interest at the rate of eighteen percent (18%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue on any amount not paid by End User to Quark when due and shall be payable by End User upon demand.
6 COMMUNICATION OF LICENSE AGREEMENT.
The parties each agree to take all reasonable steps to ensure that employees, agents and all other persons under the employment, direction or control of the party abide by the terms, provisions and conditions of this License Agreement.
7 TERM AND TERMINATION.
7.1 Term. This License Agreement shall commence upon the payment of the License Fees and End User’s acceptance of this License Agreement. Quark shall have no obligation to provide the products to End User for which the applicable fees have not been paid.
7.2.1 Desktop Products and Developer Kits. 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, End User must destroy all copies and cease Use of the Software and Documentation. Licenses granted on a subscription basis will automatically renew at the end of the applicable subscription term in accordance with Apple’s auto renewable subscriptions process. You or Quark may elect not to renew the applicable subscription through Apple’s mechanism for such process.
7.2.2 Enterprise Products.
a. Without prejudice to any rights that Quark or its licensors may have under this License Agreement or under applicable law, Quark may give written notice to End User of End User’s material breach of any provision of this License Agreement. Material breach shall include, without limitation, failure to pay the License Fees when due, violation of Quark’s intellectual property rights, use of the Quark Products or Quark Product Components contrary to the Currently Licensed Configuration or at an unauthorised location. End User shall have thirty (30) days after the date of such notice within which to remedy the breach. If End User does not remedy the breach or take significant steps to remedy the breach within such period to the reasonable satisfaction of Quark, Quark may elect to terminate this License Agreement.
b. Quark may terminate this License Agreement immediately upon written notice, without recourse to the court, to End User if all or a substantial portion of the assets of End User are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy, or if a proceeding is commenced against End User under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days or if End User is adjudged bankrupt.
c. End User may terminate this License Agreement at any time by giving written notice to Quark and complying with the other applicable terms and conditions of this License Agreement. In no event will Quark refund any fees paid by End User for the license of the Quark Products provided hereunder upon termination of this License Agreement, except as explicitly set forth herein, as required by applicable law or as the parties expressly agree in a writing signed by both parties.
d. Upon any termination of this License Agreement, End User shall immediately discontinue use of the Quark Products and each Quark Product Component and shall, no later than thirty (30) days after such termination, return to Quark, or in Quark’s discretion destroy, all copies of the Quark Products and all other materials and hardware provided by Quark or an Authorised Integrator; provided, however, that in the event of a material breach by Quark and termination of this License Agreement by End User, End User may continue to use the Quark Products subject to payment of all applicable License Fees until End User implements alternative software.
8 LIMITED WARRANTY AND DISCLAIMER OF ALL OTHER WARRANTIES.
8.1 Quark grants the following express limited warranties for Quark Products other than Developer Kits, which End User agrees are commercially reasonable.
8.1.1 LIMITED WARRANTY – PRODUCT MEDIA: Quark warrants that the product media associated with the Quark Products will be free from defects for ninety (90) days after delivery. The sole and exclusive remedy for a defect in the product media related to a Quark Product is for End User to notify Quark of the defect in writing within the respective warranty period, to return the product media, and to follow any other reasonable procedures which Quark may establish. Quark’s sole obligation shall be to provide End User with a performing copy of the product media as soon as practicable, but no later than thirty (30) days, after receiving notification of the defect or to refund the purchase price and terminate this License Agreement. The foregoing warranty does not apply if End User mishandles, alters, or improperly uses or stores the Quark Products or the related product media. The foregoing shall be End User’s exclusive remedy and Quark’s entire liability for breach of this warranty.
8.1.2 LIMITED WARRANTY – PRODUCT FUNCTION: Quark warrants that for ninety (90) days from the date of delivery of any Quark Product, the unmodified Quark Product will perform the functions substantially as described in the Documentation for the Quark Product. As to Upgrades, this warranty period shall run from the date of installation by End User of the Upgrade; provided, however, that this warranty shall be invalidated if End User does not install the Upgrade within six (6) months following delivery. If a breach of warranty should occur during the respective warranty period, Quark shall, at Quark’s option, repair or replace the Quark Products or Upgrade as to which the warranty period applies and, if such Quark Products cannot be repaired or replaced with Quark Products that do comply with the foregoing warranty within sixty (60) days, then End User may elect to terminate this License Agreement and receive a refund of fees paid for the Quark Products or Upgrade at issue. This refund shall not apply to previously licensed Quark Products or Upgrades as to which the limited warranty period has already expired. The foregoing shall be End User’s exclusive remedy and Quark’s entire liability for breach of this warranty.
8.1.3 LIMITED WARRANTY – DEVELOPER KITS: DEVELOPER KITS ARE PROVIDED “AS IS.” QUARK AND QUARK’S LICENSORS DISCLAIM ALL WARRANTIES (EXPRESS OR IMPLIED) RELATED TO THE DEVELOPER KITS, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, EXCEPT THOSE SPECIFICALLY MADE IN THIS AGREEMENT OR THE EULA. QUARK AND QUARK’S LICENSORS SPECIFICALLY DO NOT WARRANT THAT THE DEVELOPER KITS AND THEIR RESPECTIVE COMPONENTS WILL OPERATE UNINTERRUPTED OR ERROR FREE OR BE DEVELOPED AND COMMERCIALLY RELEASED BY ANY GIVEN DATE. QUARK AND QUARK’S LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. QUARK FURTHER DISCLAIMS ALL WARRANTIES OF INTEGRATOR AND OTHER DEALERS OF THE DEVELOPER KITS.
8.2 If End User, of its own accord or upon the advice of a third party including an Authorised Integrator, uses the Quark Products outside the Currently Licensed Configuration or contrary to the Documentation, or modifies the Quark Products or any Quark Product Component, End User does so at its own risk. Quark shall have no liability under warranty or any other theory of law. Quark does not warrant the Quark Products when used with third-party software, systems or combinations thereof not referenced in the Documentation.
8.3 The foregoing express limited warranties do not extend to third-party components, including those licensed to Quark in connection with any Quark Product system or supplied by Authorised Integrators. End User shall look to the third party for any warranty related thereto.
8.4 APART FROM THE LIMITED WARRANTIES EXPRESSLY SET FORTH ABOVE, QUARK PRODUCTS, QUARK PRODUCT COMPONENTS, TRAINING, MAINTENANCE SERVICES, SUPPORT AND ANY OTHER MATERIALS OR MATTERS RELATED TO THE QUARK PRODUCTS ARE PROVIDED “AS IS”. ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR COLLATERAL ARE DISCLAIMED BY QUARK AND ITS LICENSORS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, COMPATIBILITY, THAT THE QUARK PRODUCTS WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE QUARK PRODUCTS ARE ERROR-FREE OR WILL OPERATE UNINTERRUPTED, OR THAT ERRORS CAN OR WILL BE CORRECTED. QUARK AND ITS RESPECTIVE LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
Some jurisdictions, states or provinces may not allow limitations on implied warranties, so the End User may have additional remedies under law. If any warranty is implied (notwithstanding the foregoing provisions), such implied warranty shall be limited to the term of the above express warranty or the applicable term under law.
9 LIMITATION OF LIABILITY.
IN NO EVENT SHALL QUARK OR ITS RESPECTIVE LICENSORS BE LIABLE TO END USER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFITS, TIME, SAVINGS, DATA, USE OF DATA, FEES, OR EXPENSES OF ANY KIND, ARISING FROM THIS LICENSE AGREEMENT OR THE INSTALLATION, USE OR INABILITY TO USE THE QUARK PRODUCTS OR ACCOMPANYING DOCUMENTATION IN ANY MANNER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF QUARK AND ITS RESPECTIVE LICENSORS EXCEED THE TOTAL AMOUNT QUARK RECEIVED FOR THE SOFTWARE, SERVICES OR WORK PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE ALLEGED CLAIM (EXCLUDING ANY THIRD PARTY COMPONENTS OR SERVICES ADDED OR CONTRACTED BY CLIENT OR ANY THIRD PARTY, INCLUDING AN AUTHORISED INTEGRATOR). THE LIMITATIONS OF THIS SECTION WILL APPLY EVEN IF QUARK, ITS RESPECTIVE LICENSORS AND/OR AN AUTHORISED INTEGRATOR HAVE BEEN ADVISED OF SUCH POSSIBLE DAMAGES.
Some jurisdictions, states, or provinces do not allow the exclusion or limitation of incidental or consequential damages, so the limitation or exclusion included in this License Agreement may not apply. All other limitations provided under applicable law, including Statutes of Limitation, shall continue to apply. End User acknowledges that Quark’s pricing reflects this allocation of risk and the limitation of liability specified in this section will apply regardless of whether any limited or exclusive remedy specified in this License Agreement fails of its essential purpose. Nothing in this Agreement shall be construed so as to exclude or limit either party’s liability in respect of personal injury or death caused by negligence of that party, or for fraudulent misrepresentation or intent.
10 UPDATES AND UPGRADES
At Quark’s sole discretion, Quark may provide End User with Updates and Upgrades to the Software and retains the right to provide such Updates and Upgrades for a fee. In order to Install and Use an Update or Upgrade, End User must have a license from Quark to use the previous version. Upon Installation of the Update or Upgrade, End User may continue to Use the previous version provided that the Update or Upgrade and the previous version are installed on the same computers, subject to the limitation set forth in Section 2.1 hereof. Upon installation of the Update or Upgrade, End User shall not transfer the previous version to a third party. Unless Quark provides other terms and conditions with an Update or Upgrade, the terms and conditions of this License Agreement shall continue to apply. End User may refuse to accept an Update or Upgrade. Upon release of an Update or Upgrade, Quark shall have no further obligation to support the previous version but may, in its sole discretion, provide limited support to the Previous Sequential Release for a limited period of time.
11 EVALUATION SOFTWARE.
11.1 If the Quark Product End User has received with this License Agreement is Evaluation Software, the following Section applies until such time that End User purchases a license to the full retail version of such product. To the extent that any provision in this Section is in conflict with any other term or condition in this License Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Evaluation Software, but only to the extent necessary to resolve the conflict.
11.2 License Grant. The End User is granted a limited, non-exclusive, non-transferable, terminable license to use the Evaluation Software Package for the purpose of evaluation and subject to the restrictions and terms set forth in this License Agreement. End User may install and use the Evaluation Software on the number of computers for which the software is configured. All rights not expressly granted to End User in this License Agreement are specifically reserved to Quark and its respective licensors.
11.3 Rights to Improvements. Quark shall be the sole and exclusive owner of, and End User hereby assigns to Quark all rights in any of End User’s proposed or suggested changes, modifications, upgrades or enhancements, in design, functionality or otherwise, to the Quark software products. End User acknowledges that Quark is under no obligation to consider or implement any such changes, modifications, upgrades or enhancements recommended or requested by End User.
11.4 Evaluation Software Package. This License Agreement and the license granted herein shall terminate, as to the particular Evaluation Software Package in question, upon expiration of the evaluation period, unless the parties agree in writing to an extension of the term. End User acknowledges that the Evaluation Software may contain a “time-bomb” or other device which renders the software inoperable after a certain period of time, the operation of which shall serve to terminate End User’s use rights hereunder as to such Evaluation Software. Quark may also terminate this License Agreement with or without cause upon seven (7) days prior written notice. All materials (including, without limitation, the Evaluation Software Package and any associated documents) furnished to End User by Quark shall remain the property of Quark and its licensors and shall be returned to Quark within fourteen (14) days of the termination of the evaluation period together with any copies thereof. In addition, End User agrees to erase or destroy any physical or electronic copies thereof or derived from the Evaluation Software Package. Upon Quark’s request, an authorised representative of End User shall certify in writing that the Evaluation Software Package and all associated materials, tangible or intangible, have been returned or destroyed.
11.5 DISCLAIMER OF WARRANTY. END USER ACKNOWLEDGES THAT THE MATERIALS IN THE EVALUATION SOFTWARE PACKAGE ARE PROVIDED FOR EVALUATION PURPOSES ONLY. CONSEQUENTLY, THE EVALUATION SOFTWARE PACKAGE IS PROVIDED TO END USER ON AN “AS IS” BASIS. QUARK AND ITS RESPECTIVE LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, OR THAT THE SOFTWARE WILL CONTINUE TO OPERATE OR OPERATE WITHOUT ERROR WITH OTHER SOFTWARE OR HARDWARE.
Some jurisdictions, states, or provinces do not allow limitations on implied warranties, so the above limitation may not apply to End User.
11.6 LIMITATION OF LIABILITY. IN NO EVENT WILL QUARK OR ITS LICENSORS BE LIABLE TO END USER FOR ANY DAMAGES IN CONNECTION WITH THE EVALUATION SOFTWARE PACKAGE, INCLUDING ANY LOST PROFITS, LOST SAVINGS, LOST DATA, BUSINESS INTERRUPTION OR OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF QUARK OR ANY AGENT OR REPRESENTATIVE OF QUARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANOTHER PARTY. END USER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE EVALUATION SOFTWARE PACKAGE. IN ANY EVENT, THE LIABILITY OF QUARK AND ITS LICENSORS RELATING TO THE EVALUATION SOFTWARE PACKAGE SHALL BE LIMITED TO THE MONEY PAID FOR THE SOFTWARE.
Some jurisdictions, states, or provinces do not allow the exclusion or limitation of incidental or consequential damages, so the limitation or exclusion included in this License Agreement may not apply to End User. Nothing in this Agreement shall be construed so as to exclude or limit either party’s liability in respect of personal injury or death caused by negligence of that party, or for fraudulent misrepresentation or intent
12 USE OF AUTHORISED INTEGRATORS.
12.1 End User acknowledges that the term “Authorised Integrator” means only that Quark has entered into an agreement with a specific integrator, and such integrator has assumed all responsibility for the distribution and support (absent a maintenance, support or other written agreement between Quark and the End User) of the Quark Products sold by the Authorised Integrator. Such designation in no way implies that Quark is responsible in any way for the services or products of such Authorised Integrator or its employees or agents. End User acknowledges that Authorised Integrators are not agents, commercial agents, representatives, employees, joint venturers, or partners of Quark, or in any other way affiliated with Quark, and are not authorised to bind Quark to any commitments, conditions, warranties or other courses of action.
12.2 Quark may make available to End User a list of Authorised Integrators. However, End User is solely responsible for its choice in evaluating and selecting an Authorised Integrator. Quark makes no warranties, express or implied, concerning the abilities, qualifications, services, or products provided by Authorised Integrators or their employees or agents.
13 EXPORT RESTRICTIONS/COMPLIANCE WITH LAW.
End User agrees not to export or transmit any of the Quark Products or Quark Product Components, directly or indirectly, except in full compliance with all U.S. Export Administration Regulations and the import/export rules of any other country. Diversion contrary to U.S. or other law is expressly prohibited. End User agrees to comply with all applicable laws and regulations in regard to export of the Quark Products or the Quark Product Components, if allowed under this License Agreement, and the laws, regulations, and rules of any country or region that apply to End User’s activities in relation to this License Agreement.
14.1 Software Transfer.
Enterprise Products: Quark may assign its interest in this License Agreement, in whole or in part, or any rights or duties hereunder, without the prior written consent of End User. Subject to Section 7.2.2.b, End User may assign this License Agreement on a permanent basis, in whole but not in part, only if no copies are retained, in connection with the merger or sale of all or substantially all of the assets of the End User’s business unit in which the Quark Products are used, if End User provides written notice to Quark of the assignment and the assignee agrees in writing to be bound by the terms of this License Agreement or has entered into a replacement agreement with Quark’s then current terms; provided, however, that assignment of this License Agreement to a competitor of Quark is subject to the prior written consent of Quark (which consent may be withheld in Quark’s sole discretion).
Desktop Products: The initial End User of the Software may make a one-time permanent transfer of this EULA and Software to another end user, provided the initial End User retains no copies of the Software. This transfer must include all of the Software, including all component parts, the media and printed materials, any Upgrades, and this EULA. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, End User and transferee must comply with such procedures as Quark requires and the transferee must agree to be bound by the terms of this License Agreement. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CONDITIONS WILL END USER BE PERMITTED TO TRANSFER EDUCATIONAL, PRE-RELEASE OR NOT-FOR-RESALE VERSIONS OF THE SOFTWARE.
14.2 Entire Agreement. This License Agreement sets forth the entire agreement between the parties and supersedes any and all contemporaneous or prior proposals, agreements and representations between them, whether written or oral with respect to the subject matter hereof. Except as expressly provided herein, this License Agreement may be changed or supplemented only by mutual agreement of the parties in writing, executed by persons with authority to enter into such License Agreements. This License Agreement may not be modified by any course of dealing or usage of trade. It is expressly agreed that the terms of this License Agreement shall supersede the terms in any purchase order or other ordering document of End User, or an Authorised Integrator or other agent.
14.3 Waiver. The waiver of, or failure to enforce, by either party any breach or default hereunder by the other shall not constitute the waiver of any other or subsequent or continuing breach or default.
14.4 Enforcement and Severability. This License Agreement is intended to be interpreted in such a manner as to render it enforceable. In the event that any court, arbitration panel, or other competent authority determines that any provision of this License Agreement is not enforceable, such provision may be modified or limited in its effect to the extent necessary to cause it to be enforceable. If any provision cannot be so modified or limited, then such provision shall be severed, and the remainder of this License Agreement shall remain in full force and effect.
14.5 Notices. All notices provided for in this License Agreement shall be in writing and shall be deemed effective (a) when delivered personally or (b) when delivered by express courier service (with a receipt) addressed to Quark, Legal Department, 1225 17th St., Ste. 2050, Denver, Colorado 80202 U.S.A.
14.6 U.S. Government End Users. The Quark Products and the Quark Product Components are “commercial items” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire Quark Products with only those rights set forth herein.
14.7 Counterparts. This License Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
14.8 Survivability on Termination. The parties rights and obligations under Sections 3, 7-9, 11, 13-16, and any other provisions of this License Agreement which contemplate continuing obligations of a party, shall survive termination of this License Agreement.
15 GOVERNING LAW/JURISDICTION/DISPUTE RESOLUTION.
15.1 End Users in the United States – Arbitration. Any dispute, controversy, or claim arising out of or related to this License Agreement shall be settled by arbitration by a single neutral arbitrator who is a former state or federal judge. Unless the parties agree otherwise, the arbitration shall be conducted by Judicial Arbiter Group (“JAG”) or any similar arbitration organisation using retired state or federal judges if JAG is no longer in existence or is unable to conduct an arbitration in the venue selected by the parties. Venue shall be Denver, Colorado. The decision of the arbitrator shall be final, nonappealable and binding upon the parties, and it may be entered in any court of competent jurisdiction. The arbitrator shall be bound by the laws of the state of Colorado and all rules relating to the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine. The arbitrator shall have the power to grant equitable relief including attorney’s fees and costs, where applicable under law and shall not be entitled to make an award of punitive damages. The obligation of the parties to submit any dispute arising under or related to this License Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this License Agreement.
15.2 End Users in the United States – Governing Law. Notwithstanding Section 15.1, for End Users whose principal place of business is in the United States, this License Agreement shall be governed in all respects by the laws of the State of Colorado, without regard to conflict of laws principles. As to such End Users, the U.S. District Court for the State of Colorado, or if federal jurisdiction does not exist, then the appropriate courts of the State of Colorado located in the City and County of Denver shall have sole and exclusive jurisdiction and venue over any dispute arising out of or in connection with this License Agreement, and the parties hereby submit themselves to the jurisdiction of said courts.
15.3 All other End Users – Governing Law and Arbitration. For all other End Users whose principle place of business is outside of the United States, this License Agreement shall be governed in all respects by the laws of England. Any dispute, controversy, or claim arising out of or related to this License Agreement shall be referred to and finally resolved by arbitration by the London Court of International Arbitration (LCIA) and in accordance with the LCIA rules of arbitration in force at the time of the opening of the proceedings by one arbitrator. The place of the arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The obligation of the parties to submit any dispute arising under or related to this License Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this License Agreement.
15.4 Injunction – All End Users Worldwide. Quark may seek and obtain an injunction or other appropriate relief from a court to preserve or protect intellectual property rights, but no such application to a court shall in any way be permitted to stay or otherwise impede the progress of any arbitration proceeding. NOTWITHSTANDING ANYTHING IN THIS LICENSE AGREEMENT TO THE CONTRARY, QUARK AND ITS LICENSORS SHALL NOT BE PREVENTED FROM ENFORCING THEIR RESPECTIVE OR COLLECTIVE INTELLECTUAL PROPERTY RIGHTS OR REMEDIES IN ANY APPROPRIATE JURISDICTION.
15.5 Attorneys Fees. In the event of a dispute related to this License Agreement, the prevailing party shall recover its costs and reasonable attorneys’ fees in conjunction with such proceeding.
16 CONTROLLING AGREEMENT/TRANSLATIONS.
This License Agreement is prepared and executed in the English language. The English language version shall govern the parties’ relationship. Any translation of this License Agreement into any other languages shall be for convenience of reference only and shall have no legal effect, and the English language text shall in any event prevail.