End user agreement for AVS
Qarks AVS - END USER LICENSE AGREEMENT
NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT ("EULA"). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE, AND YOU MAY RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, ALREADY PAID UPON SHOWING PROOF OF PAYMENT. "YOU" MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS EULA, THEIR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
1.1 "Designated Administrative Access" means that access to the standard user interfaces of a given instance of the Software (designated in this section) that you may grant to a designated third party (a) for which you have provided advance written notice to Qarks that you are providing outsourced services and (b) for whose dedicated benefit you have licensed such instance of the Software. Designated Administrative Access is applicable only where you are an IT outsourcing company that is providing outsourced IT services to a client company.
1.8 "Server" means a single logical computer. Multiple computers that share processing power or operate in a networked configuration as a single logical computer, such as a "server farm" or similar arrangement, constitute a single Server for the purpose of this EULA.
1.9 "Software" means software products that are licensed to you under this EULA, including, but not limited to, any related components purchased or provided with the Software, application programming interfaces, associated media, printed materials, online or electronic documentation, and any updates and maintenance releases thereto.
1.10 "Software License Key" means, if applicable, a serial number issued to you by Qarks to activate and use the Software.
2. AVS EVALUATION VERSION
2.1 General. If available, a free evaluation version of the Software (referred to as “AVS Free” or similar) may be downloaded and installed. You acknowledge that Qarks can interrupt use of the software at any time.
2.3 Free Product Warranty Disclaimer. During the use of the Evaluation Product, the limited 90-day warranty referenced in Section 7.1 below is not applicable to you. THE EVALUATION PRODUCT IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. QARKS AND ITS LICENSORS BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION.
2.4 No Support. Qarks has no duty to provide support to you during your use of the Evaluation/Free Product.
3. GRANT AND USE RIGHTS FOR SOFTWARE.
3.1 License. The Software is licensed, not sold. Subject to the terms of this EULA, Qarks hereby grants you a non-exclusive, non-transferable license, without rights to sublicense, to use the object code of the Software solely in the country or countries where you initially paid the applicable license fees for the purpose as set forth in the applicable documentation for the Software and to the extent permitted by your payment of applicable license fees; if any, under a Qarks approved licensing model and/or your Software License Key subject to the software product specific terms specified in this EULA, the technical restrictions of the Software and/or any additional licensing terms specified by Qarks via product documentation, notification and/or policy change. If the initial purchase is within any of the European Union member states, you may deploy the Software in any of the member states without restriction, subject to the terms of the approved licensing model and the terms of this EULA. Depending upon the model utilized to compute the applicable license fees paid by you to use the Software (whether per Server, per Client, or any other Qarks approved licensing model), an applicable Software License Key may limit your usage of the Software accordingly. You may use the documentation accompanying the Software in connection with permitted uses of the Software. If the Software is a version that you have converted or exchanged from a valid licensed prior version, you agree that by using the Software you will no longer use the prior version. Qarks reserves the right to require the certification of the destruction of such previous version of the Software.
3.2 License Limitations. You may not copy the Software except for a reasonable number of machine-readable copies of the Software for backup or archival purposes and except as expressly permitted in this EULA. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks or service marks of Qarks. Qarks retains all rights not expressly granted to you in this EULA.
3.3 Restrictions. You may not (i) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Software or the Software License Key to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Software in whole or in part by, any third party (except Designated Administrative Access) without Qarks prior written consent; (iii) modify or create derivative works based upon the Software; or (iv) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software, any additional licensing terms provided by Qarks via product documentation, notification, and/or policy change, and/or the terms of this EULA. Except to the extent expressly permitted by applicable law, and to the extent that Qarks is not permitted by that applicable law to exclude or limit the rights in this Section , you may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. Before you exercise any rights that you believe to be entitled to based on mandatory law, you provide Qarks with 30 days prior written notice and provide all reasonably requested information to allow Qarks to assess your claim and, at Qarks sole discretion, to provide alternatives that reduce any adverse impact on Qarks intellectual property or other rights.
3.8 Qarks License Programs. Qarks makes available AVS License programs (for e.g., AVS Academic License). If you have received the Software pursuant to these AVS License programs, the then-current terms and conditions given upon licensing shall apply for use of the products under such Qarks License programs.
4. TITLE. Qarks retains all right, title, and interest in and to the Software and the Software License Key and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.
5. SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED Qarks will not provide any support services under this EULA. This EULA does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Qarks at any time in the future. Qarks may offer support and subscription services separately. If you have purchased Qarks support and subscription services with the Software, these services are provided to you under the Support Contract Terms and Conditions and by accepting the terms of this EULA you are accepting these Support Contract Terms and Conditions. Any supplemental software code or related materials that Qarks provides to you as part of any support and subscription services are to be considered part of the Software and are subject to the terms and conditions of this EULA.
6.1 Termination. Qarks may terminate this EULA immediately and without notice if you fail to comply with any term of this EULA.
6.2 Effect of Termination. In the event of termination, you must destroy all copies of the Software and Software License Key. In addition you must remove all copies of the Software, including all backup copies, from the Server and all computers and terminals on which it is installed. From time to time, Qarks may change the terms of this EULA. Qarks will notify you of such change. Your continued use of the Software will indicate your agreement to the change.
7. LIMITED WARRANTY AND LIMITATION OF LIABILITY
7.1 Limited Warranty. Qarks warrants that the media, if any, on which the Software is delivered will be free of defects and that the Software will substantially conform to the description contained in the applicable end user documentation with respect to the particular Software licensed under this EULA in each case for a period of 90 days after the date of shipment of the Software License Key to you ("Warranty Period"). If during the Warranty Period the media is defective and the version of that Software is still commercially available, option, repair or replace the defective media returned to Qarks within the Warranty Period. If you are returning a defective media, please email Qarks to request a Return Authorization number (RMA) and further instructions. If during the Warranty Period the Software does not substantially conform to the description contained in the applicable end user documentation, your sole remedy will be that Qarks shall, at it option, correct the defects in the Software or refund the license fees you paid, if any, related to the Software provided that (a) the Software has been properly installed and used at all times and in accordance with the instructions in the applicable end user documentation; (b) no modification, alteration or addition has been made to the Software product by persons other than Qarks or Qarks authorized representative; and (c) Qarks receives written notice of the non-conformity within ninety (90) days following shipment.
EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, QARKS AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND VMWARE AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, IN NO EVENT WILL QARKS AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. QARKS AND ITS LICENSORS LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED TO YOU UNDER THIS EULA. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER QARKS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.1 Entire Agreement. This Agreement sets forth Qarks’ entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and Qarks with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software.
8.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
8.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
8.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
8.5 Governing Law. This EULA will be governed by French law.
9. SOFTWARE PRODUCT SPECIFIC TERMS AND CONDITIONS In addition to the above, the following Software products shall also be subject to the following terms and conditions set forth below. In the event of any conflict between the following product-specific terms and conditions and the preceding sections, the product-specific terms and conditions shall control.