PowerQuest International Software License Agreement
(Site License)
IMPORTANT: Read this before using your copy of PowerQuest« BootMagic(tm)
(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 (Site) ("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. This License supersedes the License Agreement found in the User Guide.
a. PERSONAL LICENSE. This License is personal (including with respect to corporate entities) to the End User and the End User shall not assign or transfer any interest in it or grant any right under it to any third party or seek to exercise this License for the benefit or on the data of any third party, except as set forth in paragraph 2(b) below.
b. SITE LICENSE. The End User is authorized to use the SOFTWARE on an unlimited number of computers at an End User designated site, as defined in the attached POWERQUEST SITE LICENSE CERTIFICATE (the "SITE"). The End user's rights under this License may be exercised by multiple individuals designated by the End User (the "Designees"). If the SOFTWARE needs to be used at another SITE, the End User must purchase additional Licenses for each additional SITE. Additional Licenses may be purchased from PowerQuest by contacting PowerQuest International Sales at 1(801) 437-8900 or intlsales@powerquest.com.
c. BOOTMAGIC SOFTWARE. If the SOFTWARE includes a copy of PowerQuest BootMagicÖ, the rights granted in paragraph 2(b) do not apply to BootMagic. The End User may use ONE copy of BootMagic on ONE PC for evaluation purposes only. Additional licenses for BootMagic may be purchased from PowerQuest by contacting PowerQuest International Sales at 1(801) 437-8900 or intlsales@powerquest.com.
d. TERM. (i) This License is effective from the date of purchase of the License and shall remain in force until terminated. The End User may terminate this License at any time by destroying the SOFTWARE and its associated documentation, together with all copies in any form. (ii) Notwithstanding subparagraph d(i) above, this License may be terminated at any time by written notice of termination given by PowerQuest to the End User in any of the following circumstances: (A) If the End User shall expressly or impliedly repudiate this License by refusing or threatening to refuse to observe any of the conditions to which this License is subject; or (B) If the End User shall fail to make any payment due under and pursuant to this License or to observe any of the conditions to which this License is subject and, after the End User's attention has been drawn by notice to such failure, shall fail to remedy the matter to PowerQuest's reasonable
satisfaction within thirty days of the giving of such notice; or (C) If the End User shall have a receiver or administrative receiver or administrator appointed or shall enter into liquidation whether compulsory or voluntary or if the End User shall be unable to pay its debts as and when they fall due. (iii) On expiry, surrender or other termination of this License, however such termination may arise, the End User shall cease to load, store, copy or use the Software and the associated documentation, shall delete the SOFTWARE from its computers and shall either surrender the SOFTWARE and the associated documentation, together with all copies in any form, to PowerQuest or shall destroy the same. The End User shall continue after termination to observe and enforce confidentiality and secrecy in respect of the SOFTWARE and its associated documentation for the benefit of PowerQuest, and however termination may occur it shall not prejudice any right of action or remedy which may have occurred prior to
termination.
3. BACKUP COPY. The End User may make a single copy of the SOFTWARE solely for backup purposes. All copies of the SOFTWARE must include the PowerQuest copyright, confidentiality, trademark, and patent notices.
4. INTEGRITY OF THE SOFTWARE. The End User shall not enhance or vary any part of the SOFTWARE nor procure or permit the whole or any part of the SOFTWARE (whether in its original or in any updated, enhanced or varied form) to be incorporated into any other software or computer system. Translations, reverse programming, disassembling and reverse engineering of the SOFTWARE are expressly prohibited. Provided, however, that nothing in these conditions shall restrict (i) decompilations, notwithstanding that decompilation may involve adaptation, if the sole purpose of such decompilation is to achieve the interoperability of an independently created program with other programs, or (ii) any other act permitted to the End User by applicable laws and regulations of the End User's jurisdiction.
5. UPDATES AND SUPPORT. The End User is entitled to receive 90-days technical support from the date of purchase. 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 right side of the decimal) in accordance with PowerQuest policies as announced from time to time on terms comparable to those offered to other users of the SOFTWARE under the Professional License.
6. EXPORT CONTROLS. Certain uses of the SOFTWARE by the End User may be subject to restrictions under U.S. regulations relating to exports and ultimate end uses of computer software. The End User agrees to fully comply with all applicable U.S. laws and regulations, including but not limited to the Export Administration Act of 1979 as amended from time to time and any regulations promulgated thereunder.
7. LIMITED WARRANTY. (a) PowerQuest warrants to the End User, (i) that the SOFTWARE (not including any third-party software) will perform substantially in accordance with the associated documentation and (ii) that the SOFTWARE is properly recorded on the disk media. This Limited Warranty extends for ninety (90) days from the date of purchase of this License. PowerQuest does not warrant any third-party software that is provided with the SOFTWARE, but PowerQuest agrees to pass on to the End User any warranties of the owner or licensor to the extent permitted by the owner or licensor. (b) This Limited Warranty does not apply to any SOFTWARE that has been altered, damaged, abused, mis-applied, or used other than in accordance with this License and any instructions included on the SOFTWARE and the associated documentation. (c) PowerQuest's entire liability under this Limited Warranty shall be the repair or replacement of any SOFTWARE that fails to conform to this Limited Warranty or,
at PowerQuest's option, the return of the price paid for this License. PowerQuest shall have no liability under this Limited Warranty unless the SOFTWARE is returned to PowerQuest or its authorized representative, with a copy of the End User's receipt, within the warranty period. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. (d) THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, SUBJECT TO CONTRARY ORDRE PUBLIC REQUIREMENTS IN THE END USER'S JURISDICTION. (e) The End User's failure to return the enclosed registration card or complete the electronic registration included with the SOFTWARE may result in PowerQuest's inability to provide the End User with updates to the SOFTWARE, and the End User assumes the entire risk of performance and result in such an event.
8. CONFIDENTIALITY AND CONTROL OF THE SOFTWARE. The SOFTWARE, all associated documentation, and all copies are secret and confidential to PowerQuest and shall be retained under the effective control of the End User during the period of this License. The End User shall take all measures necessary to preserve confidentiality and secrecy in the SOFTWARE during the period of this license and after its termination, however such termination may arise.
9. INDEMNITIES AND LIMITATION OF LIABILITY. (a) Subject to 9(b) below, PowerQuest warrants to the End User that the Software as supplied by PowerQuest will not infringe any copyright, patent or other intellectual property right of any third party. Conditionally upon the End User's promptly giving notice to PowerQuest of any claim of alleged infringement and allowing PowerQuest to have sole control of negotiations on, and any defense of the claim, PowerQuest shall in its discretion and at its own cost either compromise or defend the claim and shall hold the End User harmless from any resulting final judgment, order or settlement. PowerQuest shall have the right to replace or change the SOFTWARE so as to avoid infringement and require the End User to accept a license to use such replaced or changed SOFTWARE in substitution for this License, provided that the SOFTWARE as substituted is substantially suitable for the End User's
utilization. (b) PowerQuest's maximum liability to the End User under 9(a) above shall not exceed the License fees actually paid by the End User for the SOFTWARE. If PowerQuest becomes aware of a potential claim under 9(a) above, PowerQuest shall be entitled then or at any time thereafter to discharge its liabilities (including potential, accruing and accrued liabilities) to the End User under 9(a) above by requiring the End User to surrender this License and to cease use of the SOFTWARE upon PowerQuest's paying to the End User a sum equivalent to the maximum amount of PowerQuest's liability as stated above. (c) GENERAL LIMITATION OF LIABILITY AND INDEMNITIES. POWERQUEST'S MAXIMUM LIABILITY RELATED TO ANY OF THE SOFTWARE SHALL NOT EXCEED THE LICENSE FEES ACTUALLY PAID BY THE END USER FOR THE SOFTWARE.
FOR BELGIUM, FRANCE, IRELAND, AND THE NETHERLANDS: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF (a) DEATH, PERSONAL INJURY OR DAMAGE TO PROPERTY CAUSED BY POWERQUEST'S NEGLIGENCE OR (b) POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR GREECE: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY POWERQUEST'S FRAUD OR GROSS NEGLIGENCE, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR ITALY: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY POWERQUEST'S FRAUD OR GROSS NEGLIGENCE OR VIOLATION OF A DUTY ARISING FROM APPLICABLE ORDINE PUBBLICO RULES, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR DENMARK, FINLAND AND NORWAY: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT (i) IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (ii) IF SUCH LIABILITY LIMITATION IS UNREASONABLE UNDER ALL RELEVANT CIRCUMSTANCES, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR PORTUGAL: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 8(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE AND WHETHER OCCASIONED BY POWERQUEST'S NEGLIGENCE OR ITS AGENTS OR OTHER REPRESENTATIVES) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR SPAIN: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY POWERQUEST'S BAD FAITH CONDUCT, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR SWEDEN: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY POWERQUEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
FOR THE UNITED KINGDOM: IN NO EVENT SHALL POWERQUEST BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF (a) DEATH OR PERSONAL INJURY CAUSED BY POWERQUEST'S NEGLIGENCE OR (b) DAMAGE TO PROPERTY OR OTHER LOSS CAUSED BY POWERQUEST WHERE SUCH LIABILITY LIMITATION IS UNREASONABLE UNDER ALL RELEVANT CIRCUMSTANCES. FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF POWERQUEST'S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF POWERQUEST RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE BY THE END USER.
10. This License constitutes the entire agreement between the End User and POWERQUEST pertaining to its subject matter. This License is governed by the laws of the State of Utah (except that body of laws controlling conflict of laws). Any litigation arising from this license will be pursued only in the state or federal courts having appropriate jurisdiction located in the State of Utah. Even if part of the agreement is held invalid, the rest of the agreement shall still be valid, binding and enforceable. The failure of either party to exercise a right does not waive future exercise of that right or other rights.
For further information: 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, PO Box 1911, Orem, UT 84059-1911, U.S.A.
Copyright ⌐ 1997-1998, PowerQuest Corporation. All rights reserved. Patents pending in the U.S.A., the European Union, and elsewhere. PowerQuest is a registered trademark of PowerQuest Corporation in the United States, the European Union, and elsewhere; and BootMagic is a trademark of PowerQuest Corporation in the United States, the European Union, and elsewhere.
