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Quark Volume Licensing Program terms and conditions
Terms and Conditions For Quark Volume Licensing Program
These Terms and Conditions shall apply to the Maintenance and Technical Support Services, if any, (the “Services”) provided to you (“Customer”) by QUARK, as hereinafter defined, through your participation in a Quark Licensing Program (the “Program”). BY ENROLLING IN A QUARK LICENSING PROGRAM, CUSTOMER AGREES TO BE BOUND SOLELY AND EXCLUSIVELY BY THESE TERMS AND CONDITIONS, NOTWITHSTANDING ANY ADDITIONAL OR CONFLICTING TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER WRITTEN DOCUMENTATION ISSUED BY CUSTOMER.
For Customers whose principal place of business is in the Americas (North and South America and the Caribbean), Quark shall mean Quark, Inc., a corporation organized under the laws of the State of Colorado USA with principal place of business at 1800 Grant Street, Denver, Colorado 80203. For all other Customers, Quark shall mean Quark Media House SARL, a company organized under the laws of Switzerland with principal place of business at Monruz 2, Neuchâtel, CH-2000 Switzerland. “Quark Affiliated Companies” means those entities controlled directly or indirectly, by Quark Holdings, Inc., whether now existing or formed in the future, together with any branch or entity which may acquire such status in the future. All references to Quark in this License Agreement shall be deemed to include the Quark Affiliated Companies.
- Services. The Services to be provided by Quark to Customer are set forth in the proposal or program materials provided to you by Quark. (Hereinafter, Proposal and Program Materials to be referred to collectively as “Program Materials”).
- Payment. Payment shall be made in accordance with the payment terms set forth in the pro forma invoice issued by Quark to Customer upon the acceptance by Customer of the Program Materials. In the event of a conflict between the Program Materials and the pro forma invoice, the pro forma invoice shall prevail. Customer acknowledges that its enrollment in Quark Assurance cannot be renewed in the event of any lapse and that it can only enroll afresh in Quark Assurance only after upgrading its existing license to the next version (as and when released).
- Term and Termination. Quark shall provide the Services for the term stated in the Program Materials (the “Term”). Unless otherwise stated therein, the Term shall commence on the date Customer enrolls in the Program. Quark may suspend or terminate Customer’s participation in the Program upon fifteen (15) days prior written notice to Customer in the event of a material breach by Customer if Customer fails to cure or commence in good faith to cure such breach during the fifteen day notice period. For the avoidance of doubt, non-payment or breach by Customer of the end user license agreement that accompanies the Quark Software shall be deemed material breaches by Customer.
- Limitations/Exclusions. In the event that technical support is provided to Customer by Quark, this Section 4 shall apply. Quark shall have no obligation to support:
(a) altered, damaged or modified Quark Software;
(b) Quark Software that is not the then current release;
(c) errors caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of Quark;
(d) Quark Software installed in a hardware or operating environment not supported by Quark; and
(e) third-party software or components not licensed through or approved by Quark.
- Limited Warranties, Disclaimers and Limitations. Quark warrants that the Services will be provided in a good and workmanlike manner and by qualified individuals with suitable training, education and experience to perform the Services. Quark can not and will not guarantee that an Upgrade will be released during the Term. Quark does not guarantee that every issue presented by Customer can or will be resolved. NOTHWITHSTANDING THE FOREGOING, QUARK MAKES NO WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL QUARK BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE PRODUCTS OR SERVICES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL QUARK’S LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE PROPOSAL.
DISCLAIMER. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties, so the above limitations may not apply to particular customers. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty.
- Governing Law, Jurisdiction and Venue.
a. Customers in the Americas. For Customers whose principal place of business is in the Americas (North, South and Central America), this Program shall be governed in all respects by the laws of the United States of America and the State of Colorado, U.S.A., without regard to conflict of laws principles. As to such Customers, 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 Agreement, and the parties hereby submit themselves to the jurisdiction of said courts. NOTWITHSTANDING ANYTHING IN THIS SECTION TO THE CONTRARY, QUARK AND/OR QUARK’S LICENSORS SHALL NOT BE PREVENTED FROM ENFORCING THEIR RESPECTIVE OR COLLECTIVE INTELLECTUAL PROPERTY RIGHTS IN ANY APPROPRIATE JURISDICTION.
b. Customers outside the Americas. For all other Customers whose principle place of business is outside of the Americas, this Program shall be governed in all respects by the laws of the Switzerland. Any dispute, controversy or claim arising under, out of or relating to this License Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO (World Intellectual Property Organization) Expedited Arbitration Rules (hereafter, “the Rules”) in force at the time of the opening of the proceedings by one arbitrator appointed in accordance with the Rules. The place of the arbitration shall be Neuchâtel, Switzerland. The language to be used in the arbitral proceedings shall be English. This arbitration clause shall not limit the right of the parties to request temporary and/or provisional measures before any court of competent jurisdiction.
c. Conflict. If there is any confusion or dispute as to whether Paragraph 6A or 6B applies, the Parties acknowledge and agree that Paragraph 6B regarding arbitration in Neuchâtel, Switzerland under the WIPO Expedited Arbitration Rules shall apply and bind the parties.
d. Attorneys’ Fees. In the event of a dispute related to this Program, the prevailing Party shall recover its costs and reasonable attorneys’ fees incurred in conjunction with such proceeding.
e. Exclusion of United Nations Sales Convention. The rights and obligations of the Parties under these Terms and Conditions shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods, hereinafter “the Convention.” These rights and obligations shall be governed as provided in Section 6 hereof. The Parties hereby agree that the Convention does not apply to the resolution of any disputes arising out of or related to these Terms and Conditions.
- No Implied Waivers. The failure of either party at any time to require performance by the other of any provision hereof shall not affect in any way the full rights to require such performance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken, construed, or held to be a waiver of the provision itself or a waiver of any breach thereafter or any other provision hereof.
- Captions and Section Headings. Captions and section headings used herein are for convenience only, are not a part of these Terms and Conditions, and shall not be used in construing them.
- Assignment. Quark may subcontract or assign its obligations under the Program Materials in whole or in part, or any rights or duties thereunder, without the prior written consent of Customer, provided such assignee can fully satisfy Quark’s obligations thereunder. Customer may assign the benefits under the Program in whole, but not in part, upon prior written notice to Quark solely in the event of a merger, sale or other disposition of all or substantially all of the assets of Customer, provided that, with regard to any QuarkXPress software licensed to Customer, Quark’s transfer policies are complied with.
- Severability. If any provision of the Program Materials or these Terms and Conditions is declared invalid, in whole or in part, by a court of competent jurisdiction, 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 the Program Materials and these Terms and Conditions shall remain in full force and effect.
- Entire Agreement. These Terms and Conditions and the Program Materials constitute the entire agreement between the parties pertaining to the subject matter hereof, superseding any and all previous agreements, proposals, representations or statements, oral or written. Any previous agreements between the parties pertaining to the subject matter of the Proposal is hereby expressly cancelled and terminated.
- Force Majeure. Neither party shall be deemed to be in breach of its obligations as a result of any delays in the performance of their obligations (except for the payment of money due under the Proposal) caused by fire, explosion, act of God, strikes, war, riot, government regulation or act or any other cause beyond the reasonable control of such party, provided that each party gives the other party written notice and promptly uses its best efforts to cure the delay.
Quark Volume Licensing Program terms and conditions
Terms and Conditions For Quark Volume Licensing Program
These Terms and Conditions shall apply to the Maintenance and Technical Support Services, if any, (the “Services”) provided to you (“Customer”) by QUARK, as hereinafter defined, through your participation in a Quark Licensing Program (the “Program”). BY ENROLLING IN A QUARK LICENSING PROGRAM, CUSTOMER AGREES TO BE BOUND SOLELY AND EXCLUSIVELY BY THESE TERMS AND CONDITIONS, NOTWITHSTANDING ANY ADDITIONAL OR CONFLICTING TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER WRITTEN DOCUMENTATION ISSUED BY CUSTOMER.
For Customers whose principal place of business is in the Americas (North and South America and the Caribbean), Quark shall mean Quark, Inc., a corporation organized under the laws of the State of Colorado USA with principal place of business at 1800 Grant Street, Denver, Colorado 80203. For all other Customers, Quark shall mean Quark Media House SARL, a company organized under the laws of Switzerland with principal place of business at Monruz 2, Neuchâtel, CH-2000 Switzerland. “Quark Affiliated Companies” means those entities controlled directly or indirectly, by Quark Holdings, Inc., whether now existing or formed in the future, together with any branch or entity which may acquire such status in the future. All references to Quark in this License Agreement shall be deemed to include the Quark Affiliated Companies.
- Services. The Services to be provided by Quark to Customer are set forth in the proposal or program materials provided to you by Quark. (Hereinafter, Proposal and Program Materials to be referred to collectively as “Program Materials”).
- Payment. Payment shall be made in accordance with the payment terms set forth in the pro forma invoice issued by Quark to Customer upon the acceptance by Customer of the Program Materials. In the event of a conflict between the Program Materials and the pro forma invoice, the pro forma invoice shall prevail. Customer acknowledges that its enrollment in Quark Assurance cannot be renewed in the event of any lapse and that it can only enroll afresh in Quark Assurance only after upgrading its existing license to the next version (as and when released).
- Term and Termination. Quark shall provide the Services for the term stated in the Program Materials (the “Term”). Unless otherwise stated therein, the Term shall commence on the date Customer enrolls in the Program. Quark may suspend or terminate Customer’s participation in the Program upon fifteen (15) days prior written notice to Customer in the event of a material breach by Customer if Customer fails to cure or commence in good faith to cure such breach during the fifteen day notice period. For the avoidance of doubt, non-payment or breach by Customer of the end user license agreement that accompanies the Quark Software shall be deemed material breaches by Customer.
- Limitations/Exclusions. In the event that technical support is provided to Customer by Quark, this Section 4 shall apply. Quark shall have no obligation to support:
(a) altered, damaged or modified Quark Software;
(b) Quark Software that is not the then current release;
(c) errors caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of Quark;
(d) Quark Software installed in a hardware or operating environment not supported by Quark; and
(e) third-party software or components not licensed through or approved by Quark. - Limited Warranties, Disclaimers and Limitations. Quark warrants that the Services will be provided in a good and workmanlike manner and by qualified individuals with suitable training, education and experience to perform the Services. Quark can not and will not guarantee that an Upgrade will be released during the Term. Quark does not guarantee that every issue presented by Customer can or will be resolved. NOTHWITHSTANDING THE FOREGOING, QUARK MAKES NO WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL QUARK BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE PRODUCTS OR SERVICES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL QUARK’S LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE PROPOSAL.
DISCLAIMER. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties, so the above limitations may not apply to particular customers. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty. - Governing Law, Jurisdiction and Venue.
a. Customers in the Americas. For Customers whose principal place of business is in the Americas (North, South and Central America), this Program shall be governed in all respects by the laws of the United States of America and the State of Colorado, U.S.A., without regard to conflict of laws principles. As to such Customers, 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 Agreement, and the parties hereby submit themselves to the jurisdiction of said courts. NOTWITHSTANDING ANYTHING IN THIS SECTION TO THE CONTRARY, QUARK AND/OR QUARK’S LICENSORS SHALL NOT BE PREVENTED FROM ENFORCING THEIR RESPECTIVE OR COLLECTIVE INTELLECTUAL PROPERTY RIGHTS IN ANY APPROPRIATE JURISDICTION.
b. Customers outside the Americas. For all other Customers whose principle place of business is outside of the Americas, this Program shall be governed in all respects by the laws of the Switzerland. Any dispute, controversy or claim arising under, out of or relating to this License Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO (World Intellectual Property Organization) Expedited Arbitration Rules (hereafter, “the Rules”) in force at the time of the opening of the proceedings by one arbitrator appointed in accordance with the Rules. The place of the arbitration shall be Neuchâtel, Switzerland. The language to be used in the arbitral proceedings shall be English. This arbitration clause shall not limit the right of the parties to request temporary and/or provisional measures before any court of competent jurisdiction.
c. Conflict. If there is any confusion or dispute as to whether Paragraph 6A or 6B applies, the Parties acknowledge and agree that Paragraph 6B regarding arbitration in Neuchâtel, Switzerland under the WIPO Expedited Arbitration Rules shall apply and bind the parties.
d. Attorneys’ Fees. In the event of a dispute related to this Program, the prevailing Party shall recover its costs and reasonable attorneys’ fees incurred in conjunction with such proceeding.
e. Exclusion of United Nations Sales Convention. The rights and obligations of the Parties under these Terms and Conditions shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods, hereinafter “the Convention.” These rights and obligations shall be governed as provided in Section 6 hereof. The Parties hereby agree that the Convention does not apply to the resolution of any disputes arising out of or related to these Terms and Conditions. - No Implied Waivers. The failure of either party at any time to require performance by the other of any provision hereof shall not affect in any way the full rights to require such performance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken, construed, or held to be a waiver of the provision itself or a waiver of any breach thereafter or any other provision hereof.
- Captions and Section Headings. Captions and section headings used herein are for convenience only, are not a part of these Terms and Conditions, and shall not be used in construing them.
- Assignment. Quark may subcontract or assign its obligations under the Program Materials in whole or in part, or any rights or duties thereunder, without the prior written consent of Customer, provided such assignee can fully satisfy Quark’s obligations thereunder. Customer may assign the benefits under the Program in whole, but not in part, upon prior written notice to Quark solely in the event of a merger, sale or other disposition of all or substantially all of the assets of Customer, provided that, with regard to any QuarkXPress software licensed to Customer, Quark’s transfer policies are complied with.
- Severability. If any provision of the Program Materials or these Terms and Conditions is declared invalid, in whole or in part, by a court of competent jurisdiction, 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 the Program Materials and these Terms and Conditions shall remain in full force and effect.
- Entire Agreement. These Terms and Conditions and the Program Materials constitute the entire agreement between the parties pertaining to the subject matter hereof, superseding any and all previous agreements, proposals, representations or statements, oral or written. Any previous agreements between the parties pertaining to the subject matter of the Proposal is hereby expressly cancelled and terminated.
- Force Majeure. Neither party shall be deemed to be in breach of its obligations as a result of any delays in the performance of their obligations (except for the payment of money due under the Proposal) caused by fire, explosion, act of God, strikes, war, riot, government regulation or act or any other cause beyond the reasonable control of such party, provided that each party gives the other party written notice and promptly uses its best efforts to cure the delay.