License Agreement
QMSIT™ VERSION 3
END-USER LICENSE AGREEMENT
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LICENSE FOR QMSIT
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Think Q, Inc. for the QMSITTM software product identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). An amendment or addendum to this EULA may accompany the SOFTWARE PRODUCT. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE PRODUCT.
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The SOFTWARE PRODUCT is protected by patent and copyright laws and international treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold. The terms of the Software License Agreement, if any, (“License Agreement”) entered into by the parties to this EULA, their employees, agents, successors or assigns is incorporated herein by reference.
1. GRANT OF LICENSE. This EULA grants you the following rights provided that you comply with all terms and conditions of this EULA:
a. Types of Software. The SOFTWARE PRODUCT contains some or all of the following types of software: "Server Software" that provides services or functionality on a computer acting as a server (and, the computer running the Server Software shall be referred to as the "Server"); and "Client Software" that allows a computer, workstation, terminal, handheld PC, pager, telephone, "smart phone," or other electronic device (each of the foregoing a "Device") to access or utilize the services or functionality provided by the Server Software.
b. Installation-Server Software: At any given time, you may install one copy of the Server Software for only one of those architectures on a single computer. Client Software: You may install the Client Software on any Device.
C. Use of the Server Software. The maximum number of Devices that may access or otherwise utilize the services or functionality of the Server Software at a given point in time is equal to the number of User Licenses that you have acquired and designated for use exclusively with that Server. Consult the terms of your License Agreement, if any, to determine your rights with respect to such User Licenses in connection with this EULA.
d. Use of the Client Software. You may use the Client Software provided that you acquire User Licenses as required in Paragraphs 1(c) above, and subject to any limitations set forth in the License Agreement.
e. Not for Resale Software. The SOFTWARE PRODUCT is not for resale ("NFR); you may not resell, or otherwise transfer, with or without value, the SOFTWARE PRODUCT.
f. Installation on a Single Server. The SOFTWARE PRODUCT is licensed as a single product. The Server Software components may not be separated for use on more than one Server, unless otherwise provided herein.
g. No "Multiplexing" or "Pooling." Use of software or hardware that reduces the number of Devices directly accessing or utilizing the Server Software (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of User Licenses required; the required number of User Licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware "front end."
h. Additional Software. Any software provided to you by ThinkQ which updates or supplements the original SOFTWARE PRODUCT is part of the SOFTWARE PRODUCT and is governed by this EULA, unless other terms of use are provided with such updates or supplements. Any software provided to you along with the SOFTWARE PRODUCT that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement, except if this EULA specifically sets forth the terms of use for such software then the terms set forth in this EULA shall apply.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
a. Server Software Transfer. You may transfer the Server Software to another computer, provided that it is removed from the computer from which it is transferred.
b. Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT.
c. Transfer to Third Party. You may not sell, sublicense, or otherwise transfer this EULA or SOFTWARE PRODUCT in part or in whole.
d. Notice to Users. You shall inform all users of the SOFTWARE PRODUCT of the terms and conditions of this EULA.
e. Limitation on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
f. Performance or Benchmark Testing. You may not disclose the results of any benchmark test of either the Server Software or Client Software to any third party without ThinkQ's prior written approval.
g. Version Limitation. The Server Software contains a certain version number (such as version "3.0"). This EULA permits you to install one copy of the Server Software with the same (or a lower) version number as the Server Software version number listed in your License Agreement on a single computer.
h. Version Limitation with Maintenance Plans. If you have purchased a maintenance plan, you are permitted to install Minor Point Versions of the Server Software (such as versions “3.1, 3.2, 3.x”)so long as your maintenance plan is active on or after the release date of the Minor Point Version.
i. Termination. Without prejudice to any other rights, ThinkQ may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE PRODUCT and all of its component parts.
j. Consent to Use of Data. With respect to technical information you provide to ThinkQ as part of any (if any) maintenance services related to the SOFTWARE PRODUCT ("Support Services"), you agree that ThinkQ (and its affiliates and agents) may collect, process, and use such information for its business purposes, including for product support and development. ThinkQ will not utilize such technical information in a form that personally identifies you.
3. UPGRADES. If the SOFTWARE PRODUCT is labeled as an upgrade, you must be properly licensed to use the product identified by ThinkQ as being eligible for the upgrade in order to use the SOFTWARE PRODUCT. A SOFTWARE PRODUCT labeled as an upgrade replaces and/or supplements (and may disable) the product that formed the basis for your eligibility for the upgrade, and following the upgrade you may use the resulting SOFTWARE PRODUCT only in accordance with the terms of this EULA.
4. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights in and to the SOFTWARE PRODUCT (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the SOFTWARE PRODUCT), and any copies you are permitted to make herein are owned by ThinkQ, its agents, successor or assigns. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner and may be protected by applicable patent, copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. If this SOFTWARE PRODUCT contains documentation which is provided only in electronic form, you may print one copy of such electronic documentation. You may not copy the printed materials accompanying the SOFTWARE PRODUCT. All rights not expressly granted are reserved by ThinkQ.
5. REINSTALLATION COPY. After installation of one copy of the SOFTWARE PRODUCT pursuant to this EULA, you may keep the original media on which the SOFTWARE PRODUCT was provided by ThinkQ solely for archival purposes or reinstallation of the SOFTWARE PRODUCT on the same computer as the SOFTWARE PRODUCT was previously installed.
6. DUAL-MEDIA SOFTWARE. You may receive the SOFTWARE PRODUCT in more than one medium. Regardless of the type or size of medium you receive, you may use only one medium that is appropriate for your single computer. You may not use the other medium for another computer. You may not loan, rent, lease, or otherwise transfer the other medium to another user, except as part of the permanent transfer (as provided above) of the SOFTWARE PRODUCT.
7. EXPORT RESTRICTIONS. Non-Exportable Encryption. The SOFTWARE PRODUCT is labeled NFR. As such, you agree that you will not export or re-export the SOFTWARE PRODUCT, any part thereof, or any process or service that is the direct product of the SOFTWARE PRODUCT (the foregoing collectively referred to as the "Restricted Components"), to any country, person, or entity. To do so is in direct violation of this EULA. You specifically agree not to export or re-export any of the Restricted Components (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (ii) to any person or entity who you know or have reason to know will utilize the Restricted Components in the design, development, or production of nuclear, chemical, or biological weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the BXA nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
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8. LIMITED WARRANTY. THINKQ WARRANTS THAT THE SOFTWARE PRODUCT WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE ACCOMPANYING WRITTEN MATERIALS FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF RECEIPT.
a. IF AN IMPLIED WARRANTY OR CONDITION IS CREATED BY YOUR STATE/JURISDICTION AND FEDERAL OR STATE/PROVINCIAL LAW PROHIBITS DISCLAIMER OF IT, YOU ALSO HAVE AN IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY [90] DAYS). AS TO ANY DEFECTS DISCOVER AFTER THE NINETY (90)-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
b. ANY SUPPLEMENTS OR UPDATES TO THE SOFTWARE PRODUCT, INCLUDING WITHOUT LIMITATION, ANY (IF ANY) SERVICE PACK OR HOT FIXES PROVIDED TO YOU AFTER THE EXPIRATION OF THE NINETY (90)-DAY LIMITED WARRANTY PERIOD ARE NOT COVERED BY ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED.
c. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. YOUR EXCLUSIVE REMEDY FOR ANY BREACH OF THIS LIMITED WARRANTY IS AS SET FORTH BELOW. EXCEPT FOR ANY REFUND ELECTED BY THINKQ, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, IF THE SOFTWARE PRODUCT DOES NOT MEET THINKQ’S LIMITED WARRANTY, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE TERMS OF PARAGRAPH 10 BELOW ("EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES") ARE ALSO INCORPORATED INTO THIS LIMITED WARRANTY. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
d. YOUR EXCLUSIVE REMEDY. THINKQ’S AND ITS AGENTS’, SUCCESSORS’ AND ASSIGNS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT THINKQ’S OPTION FROM TIME TO TIME, (i) RETURN OF THE PRICE PAID (IF ANY) FOR, OR (ii) REPAIR OR REPLACEMENT OF, THE SOFTWARE PRODUCT THAT DOES NOT MEET THIS LIMITED WARRANTY. YOU WILL RECEIVE THE REMEDY ELECTED BY THINKQ WITHOUT CHARGE, EXCEPT THAT YOU ARE RESPONSIBLE FOR ANY EXPENSES YOU MAY INCUR (E.G., COST OF SHIPPING THE SOFTWARE PRODUCT). THIS LIMITED WARRANTY IS VOID IF FAILURE OF THE SOFTWARE PRODUCT HAS RESULTED FROM ACCIDENT, ABUSE, MISAPPLICATION, ABNORMAL USE, A VIRUS, OR OTHER FORCE MAJEURE. ANY REPLACEMENT SOFTWARE PRODUCT WILL BE WARRANTED FOR THE REMAINDER OF THE ORIGINAL WARRANTY PERIOD OR THIRTY (30) DAYS, WHICHEVER IS LONGER. TO EXERCISE YOUR REMEDY, CONTACT: THINKQ AT: 69723 CAMINO PACIFICO, RANCHO MIRAGE, CALIFORNIA 92270.
9. DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY THAT APPEARS ABOVE IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THINKQ AND ITS SUCCESSORS OR ASSIGNS PROVIDE THE SOFTWARE PRODUCT AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; LACK OF VIRUSES; ACCURACY OR COMPLETENESS OF RESPONSES; RESULTS AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE PRODUCT AND THE PROVISION FOR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE PRODUCT.
10. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES. To the maximum extent permitted by applicable law, in no event shall ThinkQ or its agents, shareholders, directors, officers, owners, successor or assigns be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of confidential information or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including good faith or reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the SOFTWARE PRODUCT, or the provision of or failure to provide Maintenance Services, or otherwise (under or in connection with any provision of this EULA), even if ThinkQ or it’s agents, shareholders, directors, officers, successors or assigns have been advised of the possibility of such damages.
11. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of ThinkQ and any of its agents, shareholders, directors, officers, successors or assigns under any provision of this EULA; your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by ThinkQ with respect to any breach of the Limited Warranty) shall be limited to the amount actually paid by you for the SOFTWARE PRODUCT. The foregoing limitations, exclusions, and disclaimers (including Sections 9, 10 and 11 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
12. U.S. GOVERNMENT RIGHTS. All SOFTWARE PRODUCT provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. All SOFTWARE PRODUCT provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
13. APPLICABLE LAW. This EULA is governed by the laws of the Commonwealth of Pennsylvania. In respect to any dispute which may arise hereunder, you consent to the jurisdiction of the federal and state courts sitting in the Middle District of Pennsylvania or the Court of Common Pleas of Dauphin County. The prevailing party in any action to enforce the terms of this EULA shall be entitled to reasonable attorney's fees and other costs and expenses incurred by it in connection with such action.
14. CONFLICTING TERMS. In the event that any terms of this EULA conflict with the terms of a valid License Agreement, the terms of the License Agreement shall supersede this EULA.
15. TITLES AND SUBTITLES. The titles and subtitles used herein are for ease of reference and convenience only and shall not be construed to give meaning to the terms of this EULA.
16. SEVERABILITY AND WAIVER. The invalidity or unenforceability of any particular provision of this EULA shall not affect the other provisions of this EULA and shall be construed in all respects as if such invalid or unenforceable provisions were omitted. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default or breach.
