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End User License Agreement
END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“EULA”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH PDQ.COM CORPORATION (“PDQ”) GRANTS TO YOU (“LICENSEE”) A LICENSE TO ACCESS AND USE THIS SOFTWARE. AS USED IN THIS EULA, LICENSEE SHALL MEAN ONLY A SINGLE ENTITY THAT THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS EULA REPRESENTS AND PROVIDES SERVICES TO, AND IS ACCEPTING AND AGREEING TO THIS EULA FOR AND ON BEHALF OF, AND DOES NOT INCLUDE ANY OTHER ENTITY, SUBSIDIARY OR AFFILIATE, ALL OF WHICH ARE EXCLUDED FROM THE DEFINITION OF LICENSEE AND THIS EULA. IF LICENSEE DOES NOT ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS EULA, THEN PDQ IS UNWILLING TO LICENSE THE SOFTWARE TO LICENSEE, LICENSEE IS NOT GRANTED ANY LICENSE TO ACCESS OR USE THE SOFTWARE, AND LICENSEE IS PROHIBITED FROM DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE IN ANY MANNER WHATSOEVER. BY LICENSEE DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE IN ANY MANNER WHATSOEVER, LICENSEE SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO ALL TERMS AND CONDITIONS OF THIS EULA. IF LICENSEE DOES NOT ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS EULA, AND LICENSEE HAS PAID A LICENSE FEE (IF ANY) TO PDQ FOR THE SOFTWARE PRIOR TO LICENSEE HAVING HAD THE OPPORTUNITY TO REVIEW, ACCEPT AND AGREE TO THIS EULA, THEN LICENSEE SHOULD CONTACT PDQ FOR A REFUND OF SUCH LICENSE FEE AS SET FORTH BELOW.
PDQ PROVIDES A THIRTY (30) CALENDAR DAY MONEY-BACK GUARANTEE FOR THE SOFTWARE. THIS THIRTY (30) CALENDAR DAY PERIOD COMMENCES AS OF THE DATE OF LICENSEE FIRST DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE IN ANY MANNER WHATSOEVER. IF LICENSEE IS NOT SATISFIED WITH THE SOFTWARE FOR ANY REASON WITHIN SUCH THIRTY (30) CALENDAR DAY PERIOD, AND LICENSEE HAS PAID A LICENSE FEE (IF ANY) TO PDQ FOR THE SOFTWARE, THEN WITHIN SUCH THIRTY (30) CALENDAR DAY PERIOD LICENSEE MUST NOTIFY PDQ AT SALES@PDQ.COM TO OBTAIN A REFUND OF THE LICENSE FEE PAID (IF ANY) BY LICENSEE TO PDQ FOR THE SOFTWARE. IF LICENSEE NOTIFIES PDQ THAT LICENSEE REQUIRES SUCH A REFUND, THEN LICENSEE’S RIGHT TO DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE IN ANY MANNER WHATSOEVER IMMEDIATELY TERMINATES AS OF THE DATE OF SUCH NOTICE, AND LICENSEE MUST IMMEDIATELY DESTROY AND PERMANENTLY DELETE ALL COPIES OF THE SOFTWARE IN LICENSEE POSSESSION, USE, OR CONTROL.
IN CONSIDERATION OF THE PREMISES AND MUTUAL COVENANTS SET FORTH IN THIS EULA, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, PDQ AND LICENSEE AGREE TO THE TERMS AND CONDITIONS PROVIDED FOR IN THIS EULA.
1.DEFINITIONS. For purposes of this EULA, the following capitalized terms shall have the following meanings:
a.“Administrator” shall mean an individual person who acts as Licensee’s computer system administrator for whom Licensee has been granted a license to the Software by PDQ as provided for in this EULA. An Administrator is an individual person who is either an employee or independent contractor of Licensee who accesses or uses the Software, or any part thereof, for or on behalf of Licensee at any time.
b.“Confidential Information” shall have the meaning ascribed thereto in Section 12 below.
c.“Documentation” shall mean the written, online and/or electronic user documentation or materials that PDQ provides or makes available to Licensee for the Software under this EULA.
d.“Enterprise SL License” shall have the meaning ascribed thereto in Section 2 below.
e.“Feedback” shall have the meaning ascribed thereto in Section 5 below.
f.“Force Majeure” shall have the meaning ascribed thereto in Section 16 below.
h.“Intellectual Property” shall mean any or all of the following and all rights in, arising out of, or associated therewith worldwide: (i) patents and utility models and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations, and continuations-in-part thereof; (ii) trade secrets, proprietary information, know how, and all documentation embodying or evidencing any of the foregoing; (iii) copyrights, copyright registrations and applications therefor, and moral rights, rights of attribution, rights of integrity, and any other similar rights; (iv) mask works, mask work registrations and applications therefor, and any equivalent or similar rights in semiconductor masks, architectures, or topology; (v) industrial property, industrial designs, and any registrations and applications therefor; (vi) databases and data collections; (vii) trademarks, service marks, domain names, and trade dress, together with all goodwill associated with any of the foregoing; and (viii) any similar, corresponding, or equivalent rights to any of the foregoing anywhere in the world, whether registered or unregistered, and any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, whether published or unpublished, arising under statutory law, common law, or by contract, and whether or not perfected, including all applications, disclosures and registrations with respect thereto.
i.“Limited Warranty” shall have the meaning ascribed thereto in Section 13 below.
j.“Services” shall mean any support, maintenance, training or other services that may be provided by PDQ to Licensee for or in connection with the Software or otherwise under this EULA.
k.“Software” shall mean the PDQ software that PDQ provides or makes available to Licensee under this EULA. “Software” shall include the Documentation.
l.“TPS” shall mean any and all third party software and documentation that PDQ provides or makes available to Licensee through the Software. TPS does not include any Software, Documentation, Improvements, Services or any other PDQ products or services.
m.“TPS Library Package” shall mean a package of certain TPS as selected by PDQ that PDQ in its sole discretion chooses to provide or make available to Licensee through the Software.
n.“Warranty Period” shall have the meaning ascribed thereto in Section 13 below.
2.LICENSE GRANT. Subject to the terms and conditions of this EULA, PDQ hereby grants to Licensee during the term of this EULA a non-exclusive, non-transferable, non-sublicensable and limited license to download, install, access and use the Software, for Licensee’s internal business purposes only, by the number of Administrators that Licensee has been granted a license for by PDQ under this EULA. The following additional terms and conditions shall also apply to the license to the Software granted above to Licensee by PDQ under this EULA.
a.PDQ Deploy Software and PDQ Inventory Software. Unless Licensee has purchased from and been granted by PDQ an Enterprise SL License as defined and provided for below, the PDQ Deploy Software and PDQ Inventory Software are licensed to Licensee by PDQ only on a per Administrator basis, with the PDQ Deploy Software and PDQ Inventory Software each requiring their own separate license for each such Administrator. Each Administrator for whom Licensee has been granted by PDQ a license for PDQ Deploy Software or PDQ Inventory Software may install, access and use such Software on as many computers of Licensee as reasonably necessary for such Administrator to perform the Administrator’s duties. For example, each licensed Administrator may install multiple “consoles” of the Software. Licensee acknowledges and agrees that the Software is being licensed to Licensee by PDQ hereunder to perform unattended installation of certain TPS which may be downloaded from within the TPS Library Package through the PDQ Deploy Software, and, in certain instances, may provide means for auto-acceptance by Licensee of applicable licenses or terms for such TPS. Notwithstanding the foregoing or anything in this EULA to the contrary, Licensee acknowledges and agrees that: (i) Licensee is not purchasing or being granted any licenses or rights to any TPS from PDQ, and that PDQ does not make any modifications or alterations to any TPS or the applicable licenses or terms therefor; (ii) any and all TPS provided by PDQ to Licensee is provided strictly subject to the applicable third party licenses or terms for each such TPS and is provided by PDQ to Licensee strictly on an “as is” basis without any representations, warranties or guarantees whatsoever and is otherwise subject to all of the disclaimers provided for in Section 13.d. below.
b.No Floating Licenses. The licenses to the Software granted to Licensee by PDQ under this EULA are not for seats or floating licenses. In other words, different individuals associated with Licensee’s organization may not access, use or share the same licenses, even if they are accessing or using the Software at different times on the same computer. Instead, Licensee must be granted from PDQ a license for each Administrator who accesses or uses the Software, unless Licensee has purchased from and been granted by PDQ an Enterprise SL License as defined and provided for below. When an Administrator leaves or otherwise ceases to be associated with Licensee’s organization, however, Licensee may reassign that Administrator’s license(s) to a replacement Administrator of Licensee, provided that Licensee shall ensure that all Software is removed from any and all computers and other devices retained by the departing Administrator, and provided that Licensee gives PDQ immediate written notice of such reassignment.
c.Enterprise SL License. If Licensee purchases from and is granted by PDQ an enterprise network server license for the Software (“Enterprise SL License”), then the Software shall be downloaded to and installed by Licensee on such Licensee network server and the Software may then be accessed and used from such Licensee network server by any number of Administrators accessing and using such Licensee network server. The license fee for such Enterprise SL License shall be PDQ’s then current Enterprise SL License fee or such other license fee for such Enterprise SL License as expressly agreed to in writing between Licensee and PDQ.
d.License Enforcement. The Software has certain central server functionality (“Central Server”) used by PDQ to track and enforce licensing of the Software based on the number of concurrent sessions which permits PDQ to verify whether the Software is being downloaded, installed, accessed and used by Licensee on a per Administrator or Enterprise SL License basis as required in this EULA. The limit of concurrent sessions to the Central Server is directly tied to the number of Software licenses granted to Licensee by PDQ hereunder. For example, if Licensee has purchased for its Administrators a five (5) user PDQ Deploy Enterprise Software license, then PDQ enabling the Central Server for this license will limit the number of concurrent sessions to a maximum of five (5). If Licensee wishes for an Administrator to utilize multiple concurrent sessions, then additional licenses to the Software must be purchased by Licensee from PDQ for each such session. If Licensee wishes for an Administrator to maintain consoles in stand-alone mode (i.e. by not connecting to a centralized server), then the requirement to be granted one (1) license per Administrator for the Software is still required.
e.Command Line Interface. Software licensed by PDQ in the enterprise mode is enabled with a Command Line Interface (“CLI”) mode of operation. This allows the Administrator to send deployment or scan requests to a Software console. The license required with CLI is the same as it is for all other aspects of the Software, in that it is licensed, and license fees may be charged, by PDQ to Licensee on a per Administrator or Enterprise SL License basis. Any Licensee employee or independent contractor who initiates, through whatever method, deployment or scan operations using the Software is considered an Administrator for licensing purposes.
f.No Sublicensing. Licensee shall not sublicense, rent, loan, lend, lease or time-share the Software, or use the Software to provide any services as an application service provider (ASP) or on a software-as-a-service (SaaS) basis, or use or provide the Software on a service bureau basis or through any other method. Licensee shall not download, install, access or use the Software on any storage device (such as a network server) that permits any of the Software to be shared or used concurrently on two or more computers, terminals, workstations, or other devices, except to the extent that Licensee has been granted by PDQ an Enterprise SL License or separate dedicated licenses from PDQ in writing for each Administrator who so uses the Software on any such computer, terminal, workstation, or other device.
3.RESTRICTIONS. Licensee shall not decompile, disassemble, translate, reverse engineer, create derivative works of, or modify the Software, or make any attempt to discover the source code or underlying ideas, structure or algorithms of the Software, in any manner whatsoever. Licensee is responsible and liable for any breach of this EULA by any individual having any access to the Software by or through Licensee, including any Administrator. Licensee acknowledges and agrees that PDQ may: (i) track Licensee use of the Software, including the download, installation, deployment, access and/or use of the Software and of any TPS included with or through the Software, including the timing of any such activities and whether any installation or deployment was successful; (ii) provide the name of Licensee and report any of this tracking information or data, including in aggregated and statistical forms, to the relevant licensor or provider of TPS downloaded or installed by Licensee; (iii) disclose any of the foregoing, including such tracking information or data, to the relevant licensor or provider of such TPS if PDQ determines that Licensee is or may be violating this EULA or the relevant third party license or terms.
4.COMPATIBILITY. Licensee acknowledges and agrees that the Software requires use of compatible hardware and operating system software. It is Licensee’s sole responsibility to obtain and pay for any and all such compatible hardware and operating system software, including any required licenses for such software. Licensee is solely responsible for the download, installation, deployment, operation and use of the Software on Licensee hardware and software.
5.IMPROVEMENTS AND FEEDBACK.
b.Feedback License. If Licensee provides to PDQ any feedback, suggestion, idea, comment, or information regarding or in connection with the Software or any other PDQ products or services (“Feedback”), Licensee hereby grants to PDQ, under all Licensee Intellectual Property rights, a perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, transferable, sublicensable, unlimited, worldwide license and right to: (i) use, copy, modify, adapt, create derivative works of, translate, distribute, transmit, display, perform, publish, commercialize and otherwise exploit any and all such Feedback, including as part of or in connection with the Software and/or any other PDQ products or services; and (ii) develop, make, have made, use, offer for sale, sell, import and dispose of the Software and/or any other PDQ products or services that incorporate or utilize such Feedback. Any and all Intellectual Property rights that result or arise from PDQ’s exercise of the foregoing licenses and rights to Feedback, including any research, development, use, or commercialization of such Feedback, shall belong exclusively to PDQ, and PDQ shall have no obligation to Licensee whatsoever in relation thereto or in connection therewith.
6.TRIAL VERSION OF SOFTWARE. Licensee may have received the Software as a “trial” version from PDQ. If so, this Section 6 also applies to Licensee access to and use of the Software in such trial version. Any version of the Software expressly designated by PDQ in writing as being a trial version of the Software may be accessed and used by Licensee under this EULA only for the trial period so specified by PDQ, and after such trial period has expired the Software shall revert to the “free” version of the Software, as may be indicated in the trial by PDQ, unless Licensee converts the trial version of the Software into the version of the Software which requires a license fee to be paid by Licensee to PDQ, all in accordance with the terms of the applicable trial offer from PDQ to Licensee. Any such trial version of the Software is not covered by or subject to the Limited Warranty and is not eligible for any Services from PDQ, and any such trial version of the Software is provided to Licensee by PDQ strictly on “as is” basis without any representations, warranties or guarantees whatsoever and is otherwise subject to all of the disclaimers provided for in Section 13.d. below.
7.FREE VERSION OF SOFTWARE. Licensee may have received the Software as a “free” version from PDQ. If so, this Section 7 also applies to Licensee access to and use of the Software in such free version. Any version of the Software expressly designated by PDQ in writing as being a free version of the Software may be accessed and used by Licensee under this EULA without a license fee payable to PDQ. Any such free version of the Software is not covered by or subject to the Limited Warranty and is not eligible for any Services from PDQ, and any such free version of the Software is provided to Licensee by PDQ strictly on “as is” basis without any representations, warranties or guarantees whatsoever and is otherwise subject to all of the disclaimers provided for in Section 13.d below.
8.AUTO-RENEWAL FOR PAID VERSION OF SOFTWARE; CANCELLATION PROCESS
a.If you pay for a subscription to the Software and you do not cancel your subscription as set forth in Section 8.b below prior to the end of the subscription term, your subscription will be automatically extended at the end of each term for successive renewal periods of twelve (12) months. Unless otherwise indicated in any applicable additional terms or communications we send to your registered email address, such renewal will be at the same subscription fee as when you first subscribed, plus any applicable taxes, unless we notify you at least ten (10) days prior to the end of your current subscription period that the subscription fee will increase. You acknowledge and agree that your payment method will be automatically charged for such subscription fees, plus any applicable taxes, upon each such automatic renewal. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all recurring charges to your payment method based on this automatic renewal feature without further authorization from you and without further notice except as required by law. You further acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if you are notified that there will be an increase in the applicable subscription fees.
b.To change or cancel your subscription at any time, use the link on the PDQ.com website. If you cancel, your subscription benefits will continue until the end of your then-current subscription period, but your subscription will not be renewed after that term expires. You will not be entitled to a prorated refund of any portion of the subscription fees paid for the then current subscription term, except as required by applicable law.
9.TPS AND TPS LIBRARY PACKAGES. The Software provides instructions for installing, updating or upgrading certain TPS which may be included in a TPS Library Package. PDQ makes such TPS and TPS Library Packages available to Licensee over the Internet through the Software subject to Licensee’s payment to PDQ of the applicable subscription fees charged by PDQ for such availability, and Licensee is solely responsible for obtaining, securing and maintaining any and all third party hardware, operating system software, Internet services, and any and all other products and services necessary for Licensee to download, install, access, receive or use such TPS and TPS Library Packages. PDQ in its sole and absolute discretion determines any TPS, and the versions of any TPS, to include in any TPS Library Package, and whether and when, if at all, to provide or make available any updated, upgraded, corrected, or additional TPS or TPS Library Packages. PDQ makes no representations or warranties whatsoever regarding the compatibility of any TPS with any third party hardware, operating system software, Internet services, or any other products or services. All TPS and TPS Library Packages are not covered by or subject to the Limited Warranty and are not eligible for any Services from PDQ, and all TPS and TPS Library Packages are provided or made available to Licensee by PDQ strictly on “as is” basis without any representations, warranties or guarantees whatsoever and are otherwise subject to all of the disclaimers provided for in Section 13.d below. Licensee represents and warrants that Licensee shall legally, timely and properly accept, agree to and comply with, and Licensee is bound by, all applicable licenses or terms for all TPS. Licensee shall defend, indemnify, and hold harmless PDQ, its affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, and agents, from and against any and all claims, demands, actions, causes of action, lawsuits, proceedings, damages, awards, liabilities, losses, fines, costs, and expenses (including without limitation attorneys’ fees, court costs, expert witness fees, and other expenses or costs incurred) of whatever kind or nature and regardless of the legal theory based on, arising from or otherwise relating to any: (i) Licensee failure to legally, timely and properly accept, agree to or comply with any third party licenses or terms applicable to any TPS; (ii) Licensee failure to legally, timely and properly license any TPS; and/or (iii) Licensee access to or use of, or inability to access or use, or unsatisfactory access to or use of, any TPS or TPS Library Packages.
10.SERVICES. Licensee acknowledges and agrees that PDQ has no obligation or responsibility whatsoever to provide any Services. Services, if any, may be provided by PDQ to Licensee hereunder as determined by PDQ in its sole and absolute discretion, and PDQ makes no representations, warranties or guarantees regarding or in connection with any such Services, including as to performance or compatibility, or that such Services will meet Licensee needs or operate adequately for Licensee or with any hardware, operating system software, Internet services, or any other products or services. The fact that PDQ, in its sole and absolute discretion, may provide certain Services to Licensee hereunder without additional charge, such as resources that may be available without charge on PDQ’s designated website, shall not be construed as any agreement, understanding, or obligation of or by PDQ to continue to provide to Licensee any such Services or resources, or to continue to provide such Services or resources at no charge. PDQ has no obligation or responsibility to provide any Services for any version of the Software. If Licensee requests any Services from PDQ, and PDQ agrees to provide such Services to Licensee, then PDQ may charge Licensee for such Services at PDQ’s then currents fees for such Services, and PDQ may require Licensee to upgrade or update the Software version Licensee is then currently using to the latest version of the Software indicated by PDQ, which requirement may include payment of additional license fees by Licensee to PDQ.
11.DATA BACK-UP. Licensee acknowledges and agrees that Licensee is solely responsible to back-up and safeguard any and all information, documents, data, software, materials, and other contents (including any TPS and TPS Library Packages) stored or installed in or on any hardware, software, systems or devices, including those where the Software is accessed or used by Licensee. PDQ shall have no responsibility or liability whatsoever for any damage, loss or harm to any such information, documents, data, software, material, or other contents (including any TPS or TPS Library Package), or to any such hardware, software, systems or devices, and Licensee assumes all risk of any and all such damage, loss and harm. Any and all information, documents, data, software, materials, and/or other contents (including any TPS or TPS Library Package) downloaded or otherwise obtained through use of the Software is at Licensee sole discretion and risk, and Licensee is solely responsible for any damage, loss or harm to Licensee hardware, software, systems or devices, and any other damage, loss or harm, that results therefrom, including any damage, loss or harm resulting from computer viruses, malware or any other malicious software, code or materials.
a.Intellectual Property. All right, title, and interest in and to the Software, Documentation, Improvements and Services, and any and all Intellectual Property rights in and to any of the foregoing, is owned exclusively by PDQ or its licensors. Licensee acknowledges and agrees that the Software, Documentation, Improvements and Services contain confidential, proprietary and commercially valuable information and trade secrets owned by PDQ or its licensors (“Confidential Information”). Such Confidential Information includes any and all source code, object code, program architecture, program flow information, design definitions, design specifications, data structures, data compilations, techniques, interfaces, calculations, formulas, algorithms, screens generated, graphics, and other features and functionality. Licensee shall protect and not disclose or provide any such Confidential Information to any third party without the express prior written consent of PDQ.
b.Reservation of Rights. The Software, Documentation and Improvements provided under this EULA are licensed and not sold to Licensee, and this EULA grants Licensee only the limited licenses expressly set forth in this EULA. This EULA does not grant Licensee any licenses or rights in or to any source code for the Software, Documentation or Improvements. This EULA does not grant to Licensee any licenses or rights in or to any Intellectual Property of PDQ or its licensors, except for the limited licenses to the Software as expressly set forth in this EULA, and no other licenses or rights are granted by PDQ or its licensors under or in connection with this EULA by implication, estoppel, operation of law or otherwise. PDQ or its licensors reserve all rights not expressly granted in this EULA.
a.Limited Warranty. PDQ warrants to Licensee for a period of ninety (90) calendar days from the earliest date of Licensee downloading, installing, accessing or using the Software (“Warranty Period’) that the Software, when properly installed and used in accordance with the Documentation and the terms and conditions of this EULA, shall operate substantially in accordance with the specifications set forth in the Documentation when used on the compatible hardware and operating system software as indicated in the Documentation (“Limited Warranty”). This Limited Warranty is contingent upon Licensee compliance with the Documentation and all terms and conditions of this EULA, and Licensee promptly notifying PDQ in writing within the Warranty Period of any failure of the Software to meet the Limited Warranty within the Warranty Period. Any Improvements or Services provided or made available to Licensee by PDQ during or after the Warranty Period shall not cause the Warranty Period to be extended.
b.Exclusions from Limited Warranty. The Limited Warranty does not apply to or cover: (i) any trial version or free version of the Software, or any TPS or TPS Library Package; (ii) any damage, loss or harm to the Software, or to any hardware, software or systems, or to any TPS or TPS Library Package, caused by Licensee or any of its personnel, or Licensee or its personnel abuse, neglect, and/or negligence, or by any third party hardware, software, device, systems or services, or any harmful environmental or operating conditions, or any event or occurrence of Force Majeure; (iii) any configuration or changes or modifications to the Software not performed by PDQ; (iv) any viruses, malware, or corrupted software or data; (v) any third party hardware, operating system software, Internet services, or other products or services; or (vi) any non-compatibility of the Software with any third party hardware, operating system software, Internet services, or other products or services. The Documentation and specifications therein for the Software may be changed or updated by PDQ at any time in its sole and absolute discretion, and any such change or update shall constitute a change or update to the Documentation or specifications therein for the Software for purposes of the Limited Warranty. It is Licensee responsibility to remain informed of any such changes and updates notified from PDQ’s website or other information distribution methods.
c.Failure of Limited Warranty. If Licensee notifies PDQ in writing within the Warranty Period that the Software fails to meet the Limited Warranty within the Warranty Period, then PDQ shall use reasonable efforts to cure such failure so that the Software meets the Limited Warranty. If PDQ is unable to cure such failure within ninety (90) calendar days following the Warranty Period, then Licensee or PDQ may terminate this EULA upon written notice of termination to the other party hereto, and Licensee shall be entitled to a refund of the license fees paid (if any) by Licensee to PDQ for the license to the Software under this EULA, and in such event the refund provisions first set forth above in this EULA shall apply to such refund. The rights and remedies set forth in this Section 13.c shall be Licensee’s sole and exclusive remedy, and PDQ’s sole and exclusive liability, for or in connection with any failure of the Software to meet the Limited Warranty.
d.Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY ABOVE, THE SOFTWARE, DOCUMENTATION, IMPROVEMENTS, SERVICES AND ANY AND ALL OTHER PRODUCTS OR SERVICES PROVIDED BY PDQ UNDER OR IN CONNECTION WITH THIS EULA ARE PROVIDED STRICTLY ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER, AND PDQ AND ITS LICENSORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES WHATSOEVER UNDER OR IN CONNECTION WITH THIS EULA, INCLUDING WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, IMPROVEMENTS, SERVICES AND ANY AND ALL OTHER PRODUCTS OR SERVICES PROVIDED BY PDQ UNDER OR IN CONNECTION WITH THIS EULA, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PDQ AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER WITH RESPECT TO ANY COMPATIBILITY, RELIABILITY, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, WORKMANLIKE EFFORT, LACK OF VIRUSES AND MALWARE, OR OTHERWISE.
14.LIMITATION OF LIABILITY.
a.Indirect Damages. IN NO EVENT SHALL PDQ OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER UNDER OR IN CONNECTION WITH THIS EULA, INCLUDING WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, IMPROVEMENTS, SERVICES AND ANY AND ALL OTHER PRODUCTS OR SERVICES PROVIDED BY PDQ UNDER OR IN CONNECTION WITH THIS EULA, INCLUDING FOR ANY LOSS OF PROFITS, RESOURCES, TIME, DATA, INCOME, OR USE OF THE SOFTWARE, OR FOR ANY DAMAGES TO, CAUSED BY, OR AS A RESULT OF DAMAGE TO, ANY SYSTEM OR DEVICE CONTROLLING, CONTROLLED, OR OTHERWISE AFFECTED BY THE SOFTWARE, OR FOR ANY DAMAGES OR COSTS FOR OBTAINING SUBSTITUTE PRODUCTS OR SERVICES, INCONVENIENCE, OR ANY SIMILAR DAMAGES, LOSSES, COSTS OR HARM.
b.Direct Damages. ANY AND ALL LIABILITY OF PDQ AND ITS LICENSORS UNDER OR IN CONNECTION WITH THIS EULA, INCLUDING WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, IMPROVEMENTS, SERVICES AND ANY AND ALL OTHER PRODUCTS OR SERVICES PROVIDED BY PDQ UNDER OR IN CONNECTION WITH THIS EULA, SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES ONLY WHICH IN THE AGGREGATE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY LICENSEE TO PDQ UNDER THIS EULA.
c.Allocation of Risk. THE LIMITATIONS OF LIABILITY PROVIDED ABOVE SHALL APPLY REGARDLESS OF THE FORM OF THE CLAIM OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF PDQ OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, LOSSES, COSTS OR HARM, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE’S SOLE AND EXCLUSIVE REMEDIES ARE EXPRESSLY SET FORTH IN THIS EULA, AND IN THE LIMITED WARRANTY ABOVE, AND REPRESENT THE AGREED TO ALLOCATION OF RISK BETWEEN THE PARTIES HERETO UNDER OR IN CONNECTION WITH THIS EULA, AND WHICH ALLOCATION OF RISK IS REFLECTED IN THE LICENSE FEES FOR THE SOFTWARE HEREUNDER.
15.TERM AND TERMINATION.
a.Term. This EULA is effective as of the earliest date of Licensee downloading, installing, accessing or using the Software, and shall remain in effect until terminated as provided for in this EULA.
b.Termination by Licensee. Licensee may terminate this EULA at any time only by immediately ceasing all access to and use of the Software and destroying and permanently deleting all copies of the Software in Licensee’s possession, use, or control. If this EULA is so terminated by Licensee, then upon PDQ request Licensee shall promptly certify to PDQ in writing or by email to sales@PDQ.com that Licensee has complied with the foregoing and confirms its termination of this EULA.
c.Termination for Breach. This EULA shall immediately terminate with or without notice from PDQ to Licensee if Licensee commits a material breach of any of the terms or conditions of this EULA.
d.Termination for Transfer. This EULA shall immediately terminate with or without notice from PDQ to Licensee if Licensee attempts or makes any assignment, transfer, publication, or disposition of the Software, except as expressly permitted as set forth in this EULA or as otherwise expressly authorized in writing in advance by PDQ to Licensee in PDQ’s sole and absolute discretion.
e.Partial Termination. PDQ may terminate this EULA immediately upon notice to Licensee as this EULA applies to any portion of the Software as specified in such notice, and/or any portion of any TPS or TPS Library Package as specified in such notice which was made available for download or installation through the Software. PDQ may provide such notice of termination to Licensee in writing, by e-mail, or generally through PDQ’s designated website or other electronic means.
f.Effect of Termination. Upon any termination of this EULA, all licenses and rights granted to Licensee in this EULA shall immediately terminate and Licensee shall immediately cease all access to and use of the Software and destroy and permanently delete all copies of the Software in Licensee’s possession, use, or control. The following Sections of this EULA shall survive any termination of this EULA: Sections 1, 2.d, 3, 5.b, 9, 11, 12, 13.d, 14, 15 and 16. Notwithstanding anything in this EULA to the contrary, Licensee acknowledges and agrees that if this EULA is terminated as provided for herein, or if Licensee fails to make any payment to PDQ when due of the applicable subscription fees charged by PDQ for availability of any TPS or TPS Package, then PDQ shall have no responsibility, obligation or liability whatsoever to provide or make available any TPS or TPS Library Package, or any updated, upgraded, corrected, or additional TPS or TPS Library Package, to Licensee.
a.Export Restrictions. U.S. export laws, rules, and regulations may apply to the Software. The Software shall not be exported, accessed, downloaded, redistributed, or used by Licensee in any form in or to any country prohibited by U.S. export laws, rules, or regulations, or to residents or nationals of any such countries. Licensee shall comply with any and all applicable national and international laws that apply to the Software, including but not limited to U.S. export laws, rules and regulations, now or hereafter existing. By downloading, accessing, installing, and/or otherwise using the Software, Licensee: (i) represents and warrants that Licensee is not restricted from downloading, accessing, installing, and/or otherwise using the Software or any other U.S. products or services and that Licensee shall comply with all applicable U.S. export and other laws, rules, and regulations, and all host country import laws, rules, and regulations; (ii) shall not export or re-export the Software, any part thereof, or any process or service that is the product of the Software, in violation of any applicable laws or regulations of the U.S. or of any country in which Licensee obtains, installs, accesses, uses and/or possesses the Software; and (iii) shall promptly report any violation of the foregoing to PDQ at sales@PDQ.com and thereafter fully cooperate with PDQ, at Licensee sole cost and expense, to resolve the relevant violation thereof.
b.U.S. Government Restricted Rights. If Licensee is a department, division or other part of the United States government, its agencies and/or instrumentalities (“U.S. Government”), then access to and use of the Software is provided with Restricted Rights (as defined in applicable U.S. regulations). The Software is commercial computer software developed at private expense and is published and protected by copyright. Access, use, duplication, and/or disclosure by civilian agencies of the U.S. Government shall be governed by the terms and conditions of this EULA and FAR §52-227-14 Alternative III(g)(3), as applicable, subject to FAR §52.227.19(c). Access, use, duplication, and disclosure by agencies of the U.S. Government Department of Defense shall be governed by the terms and conditions of this EULA, as provided in DFARS §227.7202 and other applicable laws and regulations now or hereafter applicable. The Contractor/Licensor/Manufacturer is PDQ.com Corporation, P.O. Box 1229, Salt Lake City, UT 84110.
c.High Risk Use or Activity. The Software is not designed to be fault tolerant, and is not designed, manufactured, or intended for use with or in any hazardous or mission critical environments or applications requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft control or navigation or communication systems, life support systems, weapons or safety systems, or any other uses in which failure of the Software or TPS could lead to death, personal injury, or physical, emotional, mental, or environmental damage, and PDQ hereby disclaims any and all responsibility and liability for any death, injury, damage, loss or harm resulting from any Licensee access to or use of the Software or any TPS for or in connection with any of the foregoing environments, applications or activities.
d.Force Majeure. No delay or failure in performance by PDQ under or in connection with this EULA shall constitute or be deemed to be any breach or default hereunder or give rise to any claim against PDQ for any damages or loss if such delay or failure is caused by an event or occurrence of Force Majeure. As used in this EULA, “Force Majeure” shall mean any event or occurrence beyond the reasonable control of PDQ, including any acts of God or the public enemy, expropriation or confiscation of facilities, changes in applicable law, war, rebellion, civil disturbance, sabotage, riots, fires, floods, severe weather or other natural disasters, outages or interruptions of power or Internet, and any other similar events or occurrences.
e.Waiver. The failure or delay of PDQ at any time to enforce any of the terms or conditions of this EULA shall not be construed as a waiver of the right to enforce full or strict performance of such term or condition of this EULA or of any other terms or conditions of this EULA. Any waiver by PDQ of any breach or obligation of Licensee under this EULA shall only be effective to the extent that such waiver is expressly set forth in a signed writing from PDQ to Licensee.
f.Remedies Not Exclusive. No right or remedy of PDQ in this EULA is exclusive of any other right or remedy that may be available to PDQ hereunder, at law or in equity, but rather each such right and remedy of PDQ shall be cumulative of every other right and remedy of PDQ hereunder, at law or in equity.
g.Governing Law and Venue. This EULA shall be governed by applicable U.S. Federal law and the laws of the State of Utah, and shall be deemed to be an agreement made between two parties both resident in Utah, and without giving effect to conflict or choice of law principles. Any legal action or proceeding between the parties hereto regarding this EULA shall be conducted exclusively in a State or Federal court of competent jurisdiction within Salt Lake County, Utah. Licensee hereby irrevocably consents and submits to the personal and exclusive jurisdiction and venue of such court(s). The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to his EULA and are excluded from this EULA and from any transaction under or in connection with this EULA.
h.Attorney Fees; No Jury Trial. In any legal action or proceeding initiated or brought by PDQ against Licensee arising out of or in connection with this EULA, if PDQ is the prevailing party in such action or proceeding then PDQ shall be entitled to recover its costs, expenses, and attorneys’ fees in any such action or proceeding. LICENSEE ACKNOWLEDGES AND AGREES THAT IT SHALL NOT REQUEST OR DEMAND A JURY IN ANY LEGAL ACTION OR PROCEEDING BROUGHT BY LICENSEE AGAINST PDQ ARISING OUT OF OR IN CONNECTION WITH THIS EULA, AND LICENSEE EXPRESSLY WAIVES ANY AND ALL RIGHT TO ANY JURY IN ANY SUCH ACTION OR PROCEEDING.
i.Severability. If any provision of this EULA is held to be invalid or unenforceable by a court of competent jurisdiction under applicable law, then such provision shall be eliminated from this EULA or it shall be limited to the extent necessary to make such provision valid and enforceable, and the balance of this EULA shall remain in effect in accordance with the terms and conditions of this EULA.
j.Assignment. This EULA, and the rights and licenses granted to Licensee in this EULA and the obligations of Licensee in this EULA, shall not be assigned or otherwise transferred by Licensee to any third party, whether by merger, acquisition, reorganization, operation of law or otherwise, without the express prior written consent of PDQ, which consent PDQ may grant or withhold in its sole and absolute discretion. PDQ may assign or transfer this EULA, and any of PDQ’s rights, licenses and/or obligations under this EULA, without notice to or consent of Licensee at any time to any affiliate or subsidiary of PDQ, or to any third party, including to any third party who acquires all or substantially all of PDQ’s stock, assets or business to which the Software relates. Any assignment or transfer of this EULA, or any of the rights, licenses or obligations under this EULA, in violation of the foregoing is void.
k.Interpretation. Within this EULA: (i) all Section headings are for convenience of reference only and shall not be construed or interpreted as a limitation or expansion of the scope of the particular Section to which they refer; (ii) no legal or equitable principles or rules that might require or permit the interpretation or construction of this EULA or any provision hereof against PDQ as the party drafting this EULA shall apply or be used or employed in the construction or interpretation of this EULA; (iii) words in the singular include the plural and vice versa; (iv) the term “including” means “including without limitation”; and (iv) the terms “herein,” “hereof,” “hereunder” and words of similar import shall mean references to this EULA as a whole and not to any individual Section or portion hereof.
l.Relationship. PDQ and Licensee are independent contractors, and neither party hereto is a partner, joint venturer, franchisee, franchisor or representative of the other party hereto. Neither PDQ or Licensee have any authority to make any representation or to incur any obligation or liability on behalf of the other party to this EULA, or to make any representation inconsistent with this Section 16.l. There are no intended third party beneficiaries of this EULA, except as expressly stated herein.
m.English Language. This EULA is written in and governed by the English language only. In the event of any conflict between the English language version of this EULA and any translation of it, this English language version shall control for all purposes.
n.Entire Agreement. This EULA sets forth the entire agreement and understanding between PDQ and Licensee regarding the Software and subject matter of this EULA, and supersedes all prior communications, proposals, representations, and/or agreements, whether written or oral, express or implied, with regard to the Software and the subject matter of this EULA. This EULA may not be amended or modified unless in a writing which expressly refers to this EULA and the specific provision herein to be amended or modified which is signed by a duly authorized representative of each of PDQ and Licensee.
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