IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT OPEN THE ENCLOSED PACKET OR BREAK THE SEAL ON THE CD–ROM, AND RETURN THE COMPLETE PACKAGE WITHIN SEVENTY-TWO (72) HOURS OF PURCHASE TO THE PLACE OF PURCHASE. THIS LICENSE AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF THE LICENSE FOR THE SOFTWARE, DOCUMENTATION, AND OTHER PRODUCTS ON THE ENCLOSED MAGNETIC AND/OR CD–ROM MEDIA, AND ANY FURTHER PRODUCTS WHICH MAY BE RECEIVED UNDER THE TERMS OF THIS AGREEMENT. OPENING OF THE ENCLOSED PACKET OR BREAKING THE SEAL ON THE CD–ROM BY YOU OR YOUR AGENT SIGNIFIES YOUR ACCEPTANCE OF THIS AGREEMENT.
DEFINITIONS: The following definitions are applicable to this License Agreement: “SOFTWARE” refers to the QuarkImmedia program and all other material on the enclosed disks and/or CD–ROM; “PRODUCT MEDIA” refers to the enclosed disks and/or CD–ROM on which the SOFTWARE is contained; “VIEWER” refers to QuarkImmedia Viewer; “INSTALLER” refers to a software application that copies all or part of the VIEWER for Windows to a hard disk drive or similar storage device; “CLIP MEDIA CD” refers to a CD–ROM supplied by Quark, Inc., containing clip art or clip media, whether as a part of the enclosed QUARKIMMEDIA PACKAGE or sent to the customer separately; “CLIP MEDIA” refers to the art, graphics, music, and all other materials owned by Quark, Inc., which are included on the CLIP MEDIA CD; “THIRD-PARTY CONTENT” refers to the art, graphics, music, and all other materials which are not owned by Quark, Inc., on the CLIP MEDIA CD; “QUARKIMMEDIA PACKAGE” refers collectively to the SOFTWARE, the VIEWER, the INSTALLER, the CLIP MEDIA CD, and the CLIP MEDIA; “USE” consists of either loading all or part of the QUARKIMMEDIA PACKAGE into computer memory or running it on a CPU; “INSTALL” means to copy all or part of the QUARKIMMEDIA PACKAGE to a hard disk drive or similar storage device.
1. SOFTWARE LICENSE GRANT: The customer is granted a non-exclusive, non-transferable license to USE the QUARKIMMEDIA PACKAGE and documentation subject to the restrictions and terms set forth in this License Agreement. The only right granted to the customer is the right to use the QUARKIMMEDIA PACKAGE and documentation in accordance with this License Agreement. All rights not expressly granted to the customer in this License Agreement are specifically reserved by Quark, Inc. Customers who have purchased a Single-User License may INSTALL and USE the SOFTWARE on one computer; customers who have purchased a Multi-Pak License may INSTALL and USE the SOFTWARE on the number of computers for which the Multi-Pak is configured. The customer 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 the customer.
2. VIEWER AND INSTALLER LICENSE GRANT: The VIEWER and/or INSTALLER must be copied in their entirety and must remain in their original state, including all notices and markings as on the originals. The customer may then USE the VIEWER and/or the INSTALLER without charge and make unlimited copies of the VIEWER and/or the INSTALLER and only the VIEWER and/or the INSTALLER are to be freely USED, distributed, and transmitted.
3. CLIP MEDIA CD LICENSE GRANT: Customers who have purchased a Single-User License may INSTALL and USE the CLIP MEDIA CD on one computer; customers who have purchased a Multi-Pak License may INSTALL and USE the CLIP MEDIA CD on the number of computers for which the Multi-Pak is configured. Excepting the right to make one archive copy, the customer may not copy the CLIP MEDIA CD in whole, but must abide by the terms of the CLIP MEDIA license agreement set forth herein and/or in the individual license agreements accompanying the respective THIRD-PARTY CONTENT, whichever are applicable.
4. CLIP MEDIA LICENSE GRANT: The customer may USE, copy, modify, distribute, and create derivative works of the CLIP MEDIA as part of any computer program, presentation, or other work, as long as the CLIP MEDIA is not the primary part of the program, presentation, or other work. The customer may include the CLIP MEDIA in works which are resold, as long as those works contain the same restrictions on USE as contained herein, and the customer does not allow the purchaser to resell or USE the CLIP MEDIA in another program, presentation, or other work. The THIRD-PARTY CONTENT has been licensed for distribution by Quark, Inc., and shall be governed by the terms of the respective license agreements included in the enclosed ReadMe files.
5. RESTRICTIONS: The customer does not receive or acquire any right, title, or interest to the QUARKIMMEDIA PACKAGE, documentation, or any applicable patents, copyrights, or trade secrets. The QUARKIMMEDIA PACKAGE may not be rented, loaned, leased, sold, or commercially distributed in any way, excluding the uses of the VIEWER, INSTALLER, THIRD-PARTY CONTENT, and CLIP MEDIA as described in Sections 2, 3, and 4 respectively. Any copy made of all or part of the QUARKIMMEDIA PACKAGE must include all notices and markings, including copyright, trademark, and other proprietary notices, as in the original. Quark, Inc., is not abandoning any rights or title to the VIEWER, INSTALLER, or CLIP MEDIA by allowing reproduction and distribution. The customer may not modify, translate, reproduce, reverse engineer, disassemble, decompile, or otherwise derive source code, or use as a basis for the preparation of other software programs or derivative works, or use in any manner that infringes the intellectual property of the QUARKIMMEDIA PACKAGE or accompanying documentation or other rights of another party except as permitted herein or under applicable law.
6. TERMINATION AND TRANSFER: Any failure to comply with the terms and conditions of this License Agreement shall result in automatic termination of this License Agreement. Upon termination of this License Agreement for any reason, the customer must destroy all copies of the QUARKIMMEDIA PACKAGE and accompanying documentation. The customer may not transmit electronically, including over the Internet; make available, directly or indirectly, for use by any other person or entity not covered by this License Agreement; or transfer the SOFTWARE or CLIP MEDIA CD without the prior written approval of Quark, Inc. or as set forth in Sections 1, 2, 3, and 4.
7. COMMUNICATION OF LICENSE AGREEMENT: The 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 QUARKIMMEDIA PACKAGE or accompanying documentation.
8. UNAUTHORIZED USE AND COMPLIANCE: The customer shall use all reasonable efforts to see that employees, agents, assigns, or other persons under the direction or control of the customer who have access to the QUARKIMMEDIA PACKAGE or accompanying documentation abide by the terms and conditions of this License Agreement. The customer agrees to notify Quark, Inc., immediately in writing of any unauthorized USE.
9. GENERAL PROVISIONS AND LIMITED WARRANTY: Quark, Inc., warrants that the enclosed PRODUCT MEDIA will be free from defects for ninety (90) days after purchase of the QUARKIMMEDIA PACKAGE. The SOFTWARE, CLIP MEDIA CD, VIEWER, INSTALLER, CLIP MEDIA, and any related documentation are provided “AS IS” and without warranty of any kind. Quark, Inc., specifically does not warrant that the QUARKIMMEDIA PACKAGE and its respective components will run uninterrupted or error-free. The sole and exclusive remedy for a defect in the PRODUCT MEDIA is for the customer to notify Quark, Inc., of the defect in writing within ninety (90) days of purchase and to return the PRODUCT MEDIA to Quark, Inc. The sole obligation of Quark, Inc., shall be to provide the customer with a performing copy of the PRODUCT MEDIA within a reasonable time after receiving notification of the defect or to refund the purchase price and terminate this License Agreement, at the option of Quark, Inc. The foregoing warranty does not apply if the customer mishandles, alters, or improperly uses or stores the PRODUCT MEDIA. Quark, Inc., makes no warranties as to ownership of or performance by the THIRD-PARTY CONTENT on the CLIP MEDIA CD. The customer should refer to the respective license agreements on the CLIP MEDIA CD for information on warranties relating to THIRD-PARTY CONTENT.
10. DISCLAIMER OF OTHER WARRANTIES: THE LIMITED WARRANTY SET FORTH IN SECTION 9 IS IN LIEU OF ANY OTHER WARRANTIES, INCLUDING ANY WARRANTIES PROVIDED BY DISTRIBUTORS AND RETAILERS OF THE SOFTWARE. EXCEPT AS SET FORTH IN SECTION 9, THE QUARKIMMEDIA PACKAGE IS PROVIDED ON AN “AS IS” BASIS. ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS; IMPLIED; OR COLLATERAL, ARE DISCLAIMED INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR USE OR PURPOSE; NON-INFRINGEMENT; COMPATIBILITY; OR THAT THE QUARKIMMEDIA PACKAGE IS ERROR-FREE; OR THAT ERRORS CAN OR WILL BE CORRECTED.
11. OTHER WARRANTY RIGHTS: Some jurisdictions, states, or provinces do not allow limitations on implied warranties, so the above limitation may not apply to particular customers.
12. SOFTWARE UPDATES: At the sole discretion of Quark, Inc., the customer may be provided with updates to the QUARKIMMEDIA PACKAGE, or parts thereof. Quark, Inc., retains the right to provide the updates for a fee. The customer may refuse to accept the updates and any additional terms and conditions that may apply at that time. The terms and conditions of this License Agreement apply to any and all updates unless stated otherwise by Quark, Inc.
13. CUSTOMER RESPONSIBILITY FOR SELECTION OF THE QUARKIMMEDIA PACKAGE: The customer is solely responsible for selection of the QUARKIMMEDIA PACKAGE to achieve the customer’s intended results or for particular applications.
14. LIMITATION OF LIABILITY: REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL QUARK, INC., OR ANY ENTITY WHICH CONTROLS; IS CONTROLLED BY; OR IS UNDER COMMON CONTROL WITH QUARK, INC., 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; COSTS; FEES; OR EXPENSES OF ANY KIND ARISING FROM THE USE OF THE QUARKIMMEDIA PACKAGE OR ACCOMPANYING DOCUMENTATION IN ANY MANNER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. IN ANY EVENT, THE LIABILITY OF QUARK, INC., RELATING TO THE QUARKIMMEDIA PACKAGE SHALL BE LIMITED TO THE GREATER OF $100 OR THE MONEY PAID FOR THE QUARKIMMEDIA PACKAGE. THESE LIMITATIONS WILL APPLY EVEN IF QUARK, INC., OR AN AUTHORIZED DEALER HAS 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 TO PARTICULAR CUSTOMERS.
15. 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.
16. GEOGRAPHIC RESTRICTION: This SOFTWARE is licensed for USE only in the geographic region consisting of North, Central, and South America, including the Caribbean Islands. Customer agrees to USE the SOFTWARE only in this geographic region. Any USE of the program outside of this geographic region without the prior written consent of Quark, Inc., is strictly prohibited. The VIEWER, the CLIP MEDIA CD, and the CLIP MEDIA may be used worldwide, subject to the export restrictions detailed in Section 18 of this Agreement.
17. GOVERNING LAW AND JURISDICTION: This Agreement shall be governed by the laws of the State of Colorado. The District Court for the City and County of Denver, State of Colorado, and the United States District Court for the District of Colorado shall have sole and exclusive jurisdiction and venue over any dispute arising out of this License Agreement and customer’s USE of the QUARKIMMEDIA PACKAGE, without prejudice to the right of Quark, Inc., to initiate legal proceedings in the courts of the country where customer is established or where customer has a center of business activities. Any costs which Quark, Inc., has to incur in or out of court, should Quark, Inc., become involved in legal proceedings or disputes with the customer, shall be for the customer’s account.
18. EXPORT RESTRICTIONS: Customer shall not export or transmit, directly or indirectly, any technical data or products received from Quark, Inc., 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.
19. U.S. GOVERNMENT RESTRICTED RIGHTS: The QUARKIMMEDIA PACKAGE and accompanying documentation are provided with restricted rights. Use, duplication, or disclosure by the government is subject to restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and paragraph (d) of the Commercial Computer Software — Restricted Rights clause at FAR 52.227-19. The subcontractor/manufacturer is Quark, Inc., 1800 Grant Street, Denver, Colorado 80203.
20. TAXES: The customer shall pay any applicable taxes in respect of the licenses granted and fees paid in connection with this SOFTWARE license.
21. SURVIVAL: The provisions of Sections 5, 9, 10, 14, and 17, and such other provisions which by their nature continue after termination, shall survive termination of this License Agreement.
22. TRANSFER/ASSIGNMENT: The customer shall not assign or transfer this license, or any part thereof, whether directly or indirectly (including without limitation, through a transfer of customer shares) for any reason including bankruptcy without the prior written consent of Quark, Inc.
23. ENTIRE AGREEMENT: This License Agreement constitutes the entire agreement between the 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, Inc., in writing.
Quark, Inc.
1800 Grant Street
Denver, Colorado 80203
Quark and QuarkXPress are trademarks of Quark, Inc., Reg. U.S. Pat. & Tm. Off. The Quark logo is a trademark of the Quark companies. All other trademarks are the properties of their respective owners.
