Quark Labs Terms of Use
ACCEPTANCE OF TERMS
By accessing or using this Site, downloading Materials or by browsing the Site (capitalized terms defined below), you agree to and are bound by the terms and conditions set forth in this document and in any changes thereto that Quark may publish from time to time (“Quark Labs Terms of Use”). If you do not agree to all of the terms and conditions contained in the Quark Labs Terms of Use, do not access or use this Site.
Quark may change the Quark Labs Terms of Use and other guidelines and rules posted on the Site from time to time at its sole discretion. Your continued access or use of the Site, or any Materials, constitutes your acceptance of the changes. Your access and use of the Site and Materials will be subject to the most current version of the Quark Labs Terms of Use, rules and guidelines posted on the Site at the time of such use. Please regularly check the "Quark Labs Terms of Use" link on the home page of Quark Labs to view the then-current terms. If you breach any of the Quark Labs Terms of Use, your authorization to access or use this Site and Materials automatically terminates, and any Materials downloaded or printed from the Site in violation of the Quark Labs Terms of Use must be immediately destroyed.
THE SITE
Quark, Inc., and its affiliates ("Quark") make the Quark Labs Web site and all other websites of Quark with links to the Quark Labs Terms of Use ("Site"), and the Materials, available for your access and use subject to the Quark Labs Terms of Use. “Materials” means all information, data, documents, communications, downloads, files, text, images, photographs, graphics, videos, webcasts, publications, content, tools, resources, software, code, programs and products made available or enabled via the Site by Quark.
INTELLECTUAL PROPERTY
The Materials, as well as their selection and arrangement, are protected by copyrights, trademarks, patents, trade secrets and all other intellectual property and proprietary rights (“Intellectual Property Rights”), and any unauthorized use of the Materials may violate such laws and the Quark Labs Terms of Use. Except as expressly provided herein, Quark does not grant any express or implied rights to use the Materials. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer the Site or Materials, in whole or in part, except as expressly authorized herein. In addition, you agree not to use any data mining, robots or similar data gathering and extraction methods in connection with the Site or Materials.
The trademarks, logos and service marks ("Marks") displayed on this Site are the property of Quark or other third parties. You are not permitted to use the Marks without the prior written consent of Quark or such third party that may own the Marks. Quark and the Quark logo are trademarks of Quark, Inc.
USE OF SITE
You shall pay all costs and charges, including phone charges and telecommunications equipment costs, that you incur in order to access or use the Site and Materials. You must adhere to all limitations on dissemination, usage and reproduction of any Materials that you download from the Site that are subject to such limitations. When using the Materials, you will be subject to any posted guidelines, rules or licenses applicable to such Materials, in addition to the Quark Labs Terms of Use.
USE OF SOFTWARE
Materials encompassing any software code, including programs, tools, utilities, files and otherwise, and accompanying documentation that are made accessible via the Site ("Software") are the copyrighted and patented work of Quark or its suppliers. Use of such Software is governed by any terms of the license agreement that is made available or accompanies the Software, or by the license agreement expressly stated on the Site page(s) accompanying the Software. Quark makes many of such terms available for preview prior to purchase or download and such terms are incorporated herein by this reference. However, other terms and licenses may only be posted with the Software downloads or at the Site page where the Software can be accessed. If the Software is accompanied by or includes a license agreement, your use, download and installation of the Software is governed by that license and these Quark Labs Terms of Use. Absent a license agreement that accompanies the Software, use of the Software will be governed by the Quark Labs Terms of Use. You agree that you will not decompile, reverse engineer or otherwise attempt to discover the source code of the Software. The Software is made available solely in accordance with the license agreement. Without limiting the foregoing, unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or reproduction of the Software to any other server or location for further reproduction, redistribution or use on a service bureau basis. Any unauthorized use, copying or distribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
IF THE SOFTWARE IS A PRE-RELEASE OR TECHNOLOGY PREVIEW VERSION, then, notwithstanding anything to the contrary included within a license agreement accompanying the software, you are not permitted to use or otherwise rely on the software for any commercial or production purpose.
Any Software which is downloaded from or made available via the Site for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Quark, Inc., 1800 Grant Street, Denver, CO 80203.
WARRANTY DISCLAIMER
YOU ACKNOWLEDGE THAT THE SOFTWARE FOUND ON QUARK LABS IS PRE-RELEASE AND/OR TECHNOLOGY PREVIEW SOFTWARE THAT DOES NOT REPRESENT A FINAL PRODUCT, AND MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES.
YOU ACKNOWLEDGE THAT QUARK HAS NOT PUBLICLY ANNOUNCED THE AVAILABILITY OF THE FINAL COMMERCIAL VERSION OF THE SOFTWARE, THAT QUARK HAS NOT PROMISED OR GUARANTEED TO YOU THAT A FINAL COMMERCIAL VERSION OF THE SOFTWARE WILL BE ANNOUNCED OR MADE AVAILABLE TO ANYONE IN THE FUTURE, THAT QUARK HAS NO EXPRESS OR IMPLIED OBLIGATION TO YOU TO ANNOUNCE OR INTRODUCE THE SOFTWARE AND THAT QUARK MAY NOT INTRODUCE A PRODUCT SIMILAR OR COMPATIBLE WITH THE SOFTWARE.
THE SITE AND MATERIALS, ARE PROVIDED BY QUARK UNDER THESE QUARK LABS TERMS OF USE "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, QUARK MAKES NO WARRANTY THAT (i) THE SITE OR MATERIALS WILL MEET YOUR REQUIREMENTS; (ii) THE SITE OR MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iv) THE QUALITY OF THE SITE OR MATERIALS PURCHASED OR ACCESSIBLE BY YOU WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS OR DEFECTS IN THE SITE OR MATERIALS WILL BE CORRECTED.
THIS SITE AND MATERIALS MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. QUARK MAY MAKE CHANGES TO THE SITE AND MATERIALS, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SOFTWARE OR PRODUCTS LISTED, AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE. THE SITE AND MATERIALS MAY BE OUT OF DATE, AND QUARK MAKES NO COMMITMENT TO UPDATE THE SITE AND MATERIALS.
YOU ACKNOWLEDGE AND AGREE THAT: (i) QUARK DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OFFERED BY THIRD PARTIES, INCLUDING THIRD-PARTY VENDORS AND THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES; (ii) QUARK MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT ANY SUCH THIRD PARTIES OR THEIR MATERIALS; (iii) ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK; AND (iv) QUARK SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY MATERIALS OFFERED BY THIRD PARTIES.
QUARK SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THE SITE AND ANY ACTIONS RESULTING FROM YOUR USE OF THE SITE OR MATERIALS. MANAGERS, HOSTS, PARTICIPANTS AND OTHER THIRD PARTIES ARE NOT AUTHORIZED QUARK SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF QUARK.
THE USE OF THE SITE OR THE DOWNLOADING OR OTHER USE OF ANY MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. QUARK ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE SITE OR IN CONNECTION WITH ANY MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM QUARK OR VIA THE SITE OR MATERIALS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE QUARK LABS TERMS OF USE.
QUARK SHALL HAVE NO RESPONSIBILITY IF THE SOFTWARE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION, PLATFORM OR OPERATING SYSTEM.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS.
USE OF QUARK MATERIALS
Except as indicated to the contrary elsewhere on this Site, you may view, download, and print the Quark Materials available on this Site subject to the following conditions:
1. The Quark Materials may be accessed and used solely for personal, informational, non-commercial and internal purposes.
2. The Quark Materials may not be modified or altered in any way.
3. The Quark Materials on the Site may not be distributed or sold, rented, leased, licensed or otherwise made available to others.
4. You may not remove any copyright or other proprietary notices contained in the Quark Materials.
5. You may not copy or distribute any graphics in the Quark Materials or User Content apart from their accompanying text.
6. You will not quote or display Quark Materials, or any portions thereof, out of context.
7. Quark reserves the right to revoke the authorization to view, download and print the Quark Materials available via this Site at any time, and any such use shall be discontinued immediately upon notice from Quark.
8. The rights granted to you constitute a license and not a transfer of title.
9. Quark Materials comprised of Software are subject to the additional provisions governing Software set forth herein.
10. Any Quark Materials acquired upon your execution of a required separate agreement shall be provided with the additional rights and obligations set forth in that agreement, and your rights to such Quark Materials shall immediately terminate if you fail to meet your obligations under or otherwise comply with such agreement or the terms and conditions of the Quark Labs Terms of Use.
Use of the Quark Materials for any other purpose is expressly prohibited and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
LINKS TO THIRD PARTY SITES
The Site or Materials may include links that will take you to other sites outside of the Site (“Linked Sites”). The Linked Sites are provided by Quark to you as a convenience and the inclusion of the links do not imply any endorsement by Quark of any Linked Site. Quark has no control of the Linked Sites and you therefore acknowledge and agree that Quark is not responsible for the contents of any Linked Site, any link contained in a Linked Site or any changes or updates to a Linked Site. You further acknowledge and agree that Quark is not responsible for any form of transmission (e.g. webcasting) received from any Linked Site.
INTERNATIONAL USERS
This Site can be accessed from countries around the world and may contain references to Quark products, services and programs that are not available in your country. These references do not imply that Quark intends to announce such products, services or programs in your country.
The Site is controlled, operated and administered by Quark from its offices within the United States of America. Quark makes no representation that the Site or Materials, are appropriate or available for use at other locations outside the United States, and access to the Site from territories where the Site or Materials are illegal is prohibited. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws. See the section on export control laws below for further information.
PERSONAL INFORMATION AND PRIVACY
Quark will use and protect your data, such as your name and address, in accordance with the Quark Online Privacy Policy the contents of which are incorporated by reference into the Quark Labs Terms of Use. Please be aware that your browser must be enabled to accept cookies in order for you to use certain Materials or to purchase from the Quark online store.
LIMITATION OF LIABILITY
IN NO EVENT SHALL QUARK, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF QUARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (1) THE ACCESS OR USE OF OR THE INABILITY TO ACCESS OR USE THE SITE OR MATERIALS; (2) THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR VIA THE SITE OR MATERIALS; (3) ANY DEALINGS WITH VENDORS OR OTHER THIRD PARTIES; (4) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, USER MATERIALS OR OTHER DATA; (5) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; (6) ANY FAILURE TO STORE OR LOSS OF DATA, FILES, MATERIALS OR OTHER CONTENT; (7) OR ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE; OR (8) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY LINKED SITE.
QUARK’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
UNSOLICITED IDEA SUBMISSION POLICY
Any unsolicited ideas, including ideas for advertising campaigns, promotions, products, technologies, processes, materials, marketing plans or product names, that are sent to Quark for consideration via this Site shall not be considered or accepted by Quark, nor deemed confidential or proprietary information (including any original creative artwork, samples, demos or other works presented in connection therewith).
SPAM E-MAIL AND POSTINGS
In the event of your or others’ access to or use of the Site or Materials in connection with the transmission of spam newsgroup postings or unsolicited e-mail in violation of these Quark Labs Terms of Use, you acknowledge and agree that Quark would be irreparably harmed thereunder and that monetary damages would be an insufficient and ineffective remedy; therefore you agree that Quark is entitled to obtain immediate injunctive relief against any such transmission (in addition to all other remedies available at law or in equity). Quark may without restriction block, filter or delete unsolicited e-mail.
ADVERTISEMENTS AND PROMOTIONS
Quark may run advertisements and promotions from third parties via the Site or Materials in any manner or mode and to any extent. Your communications, activities, relationships and business dealings with any third parties advertising or promoting via the Site or Materials, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, shall be solely matters between you and such third parties. You acknowledge and agree that Quark is not responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such non-Quark advertisers on the Site or in connection with the Materials.
EXPORT CONTROL LAWS; NOTICE TO U.S. GOVERNMENT USERS
The export and re-export of Quark Software are controlled by the United States Export Administration Regulations, and such Software may not be exported or re-exported to Cuba, Iran, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. In addition, the Software may not be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
By downloading Software, you are certifying that you are not a national of Cuba, Iran, Libya, North Korea, Sudan, Syria or any country to which the United States embargoes goods, and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
All Quark Software, products and publications are commercial in nature. The Software and documentation available on this Site are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (A) only as Commercial Items and (B) with only those rights as are granted to all other users pursuant to the Quark Labs Terms of Use and the applicable license agreement.
INDEMNITY AND LIABILITY
You agree to indemnify and hold Quark and its officers, affiliates, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your User Materials and any other content (e.g. computer viruses) that you may submit, post to or transmit through the Site (including a third party’s use of such User Materials or content (e.g. reliance on the accuracy, completeness or usefulness of your User Materials)); (b) your access to or use of the Site or Materials (including any use by your employees, contractors or agents and all uses of your account numbers, user names and passwords, whether or not actually or expressly authorized by you, in connection with the Site or Materials); (c) your connection to the Site or Materials; (d) your violation of the Quark Labs Terms of Use; (e) the actions of any member of your Work Group; (f) your infringement of any third party’s Intellectual Property Rights when using any of the Software made available on the Site or in any Materials; (g) your violation of any rights of any third party; (h) your access to or use of Linked Sites and your connections thereto; or (i) any dealings between you and any third parties advertising or promoting via the Site or Materials.
GOVERNING LAW AND JURISDICTION
This Site (excluding linked sites) is controlled by Quark from its office within the state of Colorado, United States of America. By accessing this Site, you agree that all matters relating to your access to, or use of, this Site shall be governed by the laws of the State of Colorado, without regard to the conflicts of laws principles thereof. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. 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.
LANGUAGE
It is the express wish of the parties that the Quark Labs Terms of Use and all related documents have been drawn up in English.
GENERAL
The Quark Labs Terms of Use and other rules, guidelines, licenses and disclaimers posted via the Site or in connection with the Materials constitute the entire agreement between Quark and you with respect to your access to or use of the Site and Materials superseding any prior agreements between you and Quark on such subject matter (including any prior versions of the Quark Labs Terms of Use). Notwithstanding the foregoing, to the extent that any terms set forth in the Quark Labs Terms of Use expressly contradict any terms of a written agreement between you and Quark regarding the use of specific Materials (“Executed Agreement”), such contradictory terms set forth in the Executed Agreement shall govern. You may not assign or otherwise transfer the Quark Labs Terms of Use nor any right granted hereunder without Quark’s prior written consent. If for any reason a court of competent jurisdiction finds any provision of the Quark Labs Terms of Use, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Quark Labs Terms of Use shall continue in full force and effect. Any failure by Quark to enforce or exercise any provision of the Quark Labs Terms of Use or related right shall not constitute a waiver of that right or provision. The section titles used in the Quark Labs Terms of Use are purely for convenience and carry with them no legal or contractual effect.
Revised 14 Dec 07 |