END USER LICENSE AGREEMENT WITH LIMITED
WARRANTY
THE
SOFTWARE
IS
PROTECTED
BY
COPYRIGHT
LAWS,
INTERNATIONAL COPYRIGHT TREATIES, AND OTHER INTELLECTUAL
PROPERTY LAWS AND TREATIES. YOU MUST USE AND DEAL WITH THE
SOFTWARE ACCORDING TO THIS AGREEMENT, AS IS REQUIRED OF
OTHER PROPRIETARY MATERIAL PROTECTED BY COPYRIGHT AND
OTHER LAWS.
BY DOWNLOADING, INSTALLING, COPYING, EXECUTING, OR
OTHERWISE USING THIS SOFTWARE, YOU AGREE TO BE BOUND BY
THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, THEN PDQ.COM CORPORATION IS
UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT
INSTALL OR USE IT AND SHOULD DELETE IT. IF YOU PAID A LICENSE
FEE TO PDQ.COM CORPORATION BEFORE HAVING THE OPPORTUNITY
TO REVIEW AND ACCEPT THIS AGREEMENT, YOU MAY CONTACT
PDQ.COM CORPORATION AS DESCRIBED BELOW.
30 DAY MONEY-BACK GUARANTEE
PDQ.com Corporation offers you a 30 day money back guarantee for paid Software
licenses. If you are not satisfied with the Software for any reason, then within 30 calendar
days of first downloading or otherwise obtaining your initial version of the Software, you
must notify PDQ.com Corporation at [email protected] to obtain a full refund of any
license fees you paid to PDQ.com Corporation for the Software. If you notify PDQ.com
Corporation that you want a refund, your right (and your entity’s right) to use the
Software immediately terminates, and you must immediately destroy and permanently
erase all copies of the Software in your possession, use, or control. (If you thereafter
decide to use a free version of the Software, you may under the terms of the applicable
agreement for such software.)
EULA TERMS AND CONDITIONS
This End User License Agreement with Limited Warranty (the “Agreement”) is a
legal contract between PDQ.com Corporation, a Utah corporation (hereinafter
“PDQ”), and you (hereinafter “you” and “your”) meaning only a single entity you
represent and provide services to, and “you” does not include any parent,
subsidiary, and affiliated entity, or any other entities, all of which are excluded from
this license. PDQ licenses (rather than outright sells) copies of its software and
associated documentation. This PDQ software and documentation you have obtained
are owned by PDQ and governed and controlled by this Agreement.
1.
Definitions. For purposes of this Agreement, the following terms shall have the
definitions specified.
“Software” means and includes (a) the computer software and code of PDQ you
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downloaded or obtained; (b) any associated “online” and/or other electronic
documentation (the “Documentation”); and (c) any updates, upgrades, maintenance
releases, revisions, and/or supplements to any such computer software, or Documentation
(collectively, “Improvements”) that PDQ may provide or make available to you (except
to the extent that such Improvements are accompanied by a separate license agreement or
terms of use).
“TPS” means any computer software and code that is not the Software (as defined
in the previous paragraph.
2.
Grant of Licenses. Subject to the terms and conditions of this Agreement, PDQ
grants you a limited, non-exclusive, non-transferable license to download, install,
execute, and properly use the Software for as many computer system administrator users
(hereinafter, an “Administrator”) as you have paid the applicable license fees. As used in
this Agreement, the term “Administrator” means and includes any individual associated
with your entity, whether as an employee or an independent contractor, who uses any of
the Software at any time.
a.
PDQ Deploy and PDQ Inventory Software. PDQ Deploy Software and
PDQ Inventory Software are licensed by PDQ on a per Administrator user basis per
entity where the software is used, with PDQ Deploy Software and PDQ Inventory
Software each requiring their own separate license for each Administrator user and entity
use.
(i) Each Administrator for whom you have purchased a license for PDQ
Deploy Software or PDQ Inventory Software may install and use that
Software on as many computers of your entity as reasonably necessary to
perform the Administrator’s duties. For example, each licensed
Administrator may install multiple “consoles” for this Software.
(ii) You acknowledge and agree that the Software is being provided as a
service to perform unattended installation of certain TPS which may be
downloaded from within the Package Library of PDQ Deploy Software,
and, in certain instances, may provide means for auto-acceptance of
applicable end user license agreement(s) for such TPS.
(iii) You further acknowledge and agree that you are not purchasing any
right or license to TPS from PDQ, and that PDQ does not make any
modifications to any of such TPS or applicable licenses. All TPS provided
by PDQ is provided subject to applicable licenses from any third party and
is provided “AS IS,” WITH ALL FAULTS, AND WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
AS TO COMPLETENESS, ERRORS, INFRINGEMENT, AND
SYSTEM AND OTHER COMPATIBILITY.
b.
No “Floating” Licenses. The licenses granted to you under this
Agreement are not “seats” or “floating” licenses. In other words, different individuals
associated with your organization may not use or share the same licenses, even if they
are using the Software at different times on the same computer. Instead, you must
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purchase licenses for each individual who uses the Software. When an Administrator
leaves or otherwise ceases to be associated with your organization, however, you may
reassign that Administrator’s license(s) from PDQ to a replacement Administrator in your
entity, provided you ensure that all Software is removed from any and all computers and
other devices retained by the departing Administrator.
c.
Licensing per PDQ's Central Server. PDQ products are licensed per
administrator (see Section 2.a, above). PDQs Central Server enforces licensing based
upon the number of concurrent sessions to the Central Server. While there is probably no
practical limit to the number of consoles that a single administrator may use, the limit of
concurrent sessions to the Central Server is directly tied to the number of licenses
purchased by the user. For example, if a user has a five-user PDQ Deploy Enterprise
license, then enabling the Central Server will limit the number of concurrent sessions to a
maximum of five. If a single administrator (i.e. one individual) wishes to utilize multiple
concurrent sessions to a Central Server, then additional licenses must be obtained for
each such session. If a user wishes to maintain consoles in stand-alone mode (not
connecting to a centralized server) there is probably no practical limit to the number of
consoles that may be installed or used. The licensing criteria of one license per
administrator is still required, however.
d.
License per PDQs Command Line Interface. PDQ products in the Pro
and Enterprise modes are enabled with a Command Line Interface (“CLI”) mode of
operation. This allows an administrator to send deployment or scan requests to a PDQ
console. The license is the same with the CLI as it is for other aspects of PDQ products,
in that it is licensed, and fees are charged, on a per administrator basis, with an
administrator defined as a single person who initiates, through whatever method,
deployment, or scan.
e.
No Sublicensing. You may not sublicense, rent, lend, time share, or lease
the Software, or use the Software to provide services as an application service provider
(ASP) or as a software as a service (SaaS) provider, service bureau, or any similar
operation, without the prior express written consent of PDQ, which consent will be
grated or withheld in PDQ’s sole discretion. You may not install, use, or execute 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 you have obtained separate, written,
dedicated licenses from PDQ for each Administrator who so uses the Software on any
such system.
f.
Reservation of Rights. Rights not expressly granted are reserved to PDQ.
The Software is licensed, not sold. This Agreement grants you a limited right to use the
Software as provided in this Agreement. This Agreement does not grant you any rights in
any source code, invention, patents or other intellectual property except as expressly
stated herein.
3.
Ownership. All right, title, and interest in and to the Software, the copyrights in
the Software, and all confidential information and intellectual property (including
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inventions, trade secret information, techniques, and technology) embodied in or utilized
by the Software, and all copies of the Software (whether made by you, or by PDQ, or by
the software in the course of its use) are owned exclusively by PDQ. You acknowledge
that in addition to material and elements of the Software that are protected by copyright
and/or other laws, the Software may contain or embody confidential, proprietary, and/or
commercially valuable information and trade secrets, all of which are owned by PDQ
including in, but not limited to, source and object code, program architecture, program
flow information, design definitions, design specifications, data structures, data
compilations, techniques, interfaces, calculations, formulas, algorithms, screens
generated, graphics, branding, and other features and functionality of the Software.
4.
Restrictions and Access. You agree that neither you, nor any person that is given
access to the Software by you, will decompile, disassemble, reverse engineer, or modify
the Software. Except as expressly authorized by this Agreement, you agree not to
disclose or provide access to the Software to any other person or entity, except on a needto-know basis to your entity’s employees and independent contractors only for services to
your entity, but specifically excluding competitors of PDQ. You are responsible for
breaches of this Agreement by all persons having authorized or other access to the
Software through you. You appreciate and agree that PDQ may track your use of the
Software, including the download, installation, and deployment of the Software and of
any TPS included with the PDQ Software, and including the timing and whether any
installation or deployment is successful; and PDQ may report this information in
aggregated and statistical forms to such TPS providers relative to the provider’s software,
without disclosing the identity of you personally or your entity, and PDQ may disclose
any specific information if PDQ believes you may be violating this Agreement or any
third party license agreement. PDQ does not track packages that you may have created.
5.
Compatible Operating System Required. The Software requires use of
compatible operating system hardware and software. It is your responsibility to acquire
compatible operating system software and any required licenses for such software. It is
also your sole and exclusive responsibility to obtain and use hardware compatible with
operation of the Software. You, and not PDQ, are solely responsible for the installation
and operation of the Software on your hardware and software.
6.
Customization. PDQ may in its sole discretion, now or hereafter, provide you
additional software that customizes the Software for use by you, and all such additional
software and customizations are, for purposes of this Agreement, part of the Software and
subject to this Agreement.
7.
Improvements.
a.
Availability. PDQ may in its sole discretion make available to you
Improvements to the Software (including updates, upgrades, and revisions), including as
a separate support and maintenance agreement. Such Improvements shall be Software
governed by this Agreement, unless and until you accept an updated end user license
agreement applicable to such Improvements and/or the Software.
b.
No Joint Improvements. As between you and PDQ, all Improvements,
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and any adjustment to the Software which we desire to use or be responsible for, are
owned exclusively by PDQ, and any such adjust you make may be deemed a work made
for hire by you for PDQ. You agree that all right, title, and interest in and to any and all
Improvements provided by PDQ, or are made at your request or suggestion or with
assistance of you or any person in your entity, including without limitation new or
different Software features or functionality, shall belong exclusively to PDQ, including
without limitation any and all ideas, know how, inventions, patents, copyrights, trade
secrets, and other intellectual property embodied or contained in, and/or otherwise
associated with, such Improvements whether suggested, provided, or developed in whole
or in part by you or for you, or not. For avoidance of doubt, but without limiting the
generality of the preceding sentence, Improvements shall not be considered “works made
for hire” by, or materials developed by, PDQ for you under any copyright or other laws.
To the extent you may have or claim any right, title, or interest in or to such
Improvements by operation of law or otherwise, you hereby assign all such right, title,
and interest in or to such Improvements and any adjustments to the software, exclusively
to PDQ, and you agree to execute any document prepared by PDQ that is reasonably
necessary to document or effect the purpose and intention of this section. You further
agree that you will have no right in or to any such Improvements other than as expressly
granted to you by this Agreement, if any. For example, you will have no right to receive
any royalty or other compensation for any such Improvements or adjustment. Further, if
you provide any suggestion, idea, or information to PDQ about its Software or other
products or potential products, PDQ shall thereby have a perpetual fully paid up,
transferable, worldwide royalty-free right to use, copy, modify, adapt, distribute,
transmit, display, perform, publish, and commercialize such suggestion, idea and/or
information, and any and all inventions, patents, copyrights, trade secrets, know how, and
other intellectual property that result from PDQ’s research, development, use, or
commercialization of such ideas and/or information shall belong exclusively to PDQ,
without any obligation to you (or your entity) whatsoever.
8.
Trial Versions. You may have received the Software as a “trial” version. If so,
this section also applies to your use of the Software in that status. Any version of the
Software designated as a “trial” version (using those words, or words of equivalent
meaning, whether in the Software or associated with its Documentation or delivery from
PDQ) may only be used for the trial period specified, or such shorter period as specified
by PDQ, and after the trial period, the Software shall revert to “free” version, as may be
indicated in the trial, unless you convert the trial version into the version wherein a fee is
payable to PDQ, all in accordance with the terms of the applicable trial offer from PDQ.
Trial versions of the Software are not eligible for support and maintenance, nor is there
any representations or warranties of any kind whatsoever applicable to any trial version
of the Software. ALL TRIAL VERSIONS OF THE Software ARE PROVIDED
STRICTLY “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY, EXPRESS
OR IMPLIED, OF ANY KIND AND WITH THE DISCLAIMERS SET FORTH
BELOW.
9.
Free Versions. You may have received the Software as a “free” version. If so,
this section also applies to your use of the Software in that status. Any version of the
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Software designated as a “free” version (in the Software or expressly associated with its
Documentation or delivery from PDQ) may be used for free, without any payment to
PDQ, but shall be subject to all the other applicable terms and conditions this Agreement.
ALL FREE VERSIONS OF THE Software ARE PROVIDED STRICTLY “AS IS,”
WITH ALL FAULTS, AND WITHOUT WARRANTY, EXPRESS OR IMPLIED, OF
ANY KIND AND WITH THE DISCLAIMERS SET FORTH BELOW.
10.
Library Packages. PDQ may make available to you certain Software that
provides instructions for installing, updating, or upgrading certain TPS (herein, “Library
Packages”). PDQ reserves the right to decide, in its sole discretion, the versions of any
TPS, if any, for which it provides Library Packages, and whether and when, if at all, to
provide any updated, upgraded, corrected, or additional Library Packages. ALL Library
Packages ARE PROVIDED TO YOU STRICTLY “AS IS,” WITH ALL FAULTS, AND
WITHOUT WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND WITH THE
DISCLAIMERS SET FORTH BELOW. You represent and warrant that you will legally
and timely accept and comply with the applicable end user license agreements for all TPS
associated with any Library Packages. You also agree to defend, indemnify, and hold
harmless PDQ and its directors, officers, employees, shareholders, agents, contractors,
and affiliates from and against any and all claims, actions, causes of action, lawsuits,
proceedings, liabilities, losses, fines, costs, expenses (including without limitation
attorneys’ fees, court costs, expert witness fees, and other expenses), damages, and
remedies of whatever kind or nature (whether based on tort, contract, regulatory, or other
laws now or hereafter existing) arising from or otherwise relating to (i) your failure to
accept or comply with any third party’s end user license agreement, (ii) your misuse of or
failure to timely license any TPS which requires a license, and/or (iii) your use, inability
to use, or unsatisfactory use of any Library Packages or TPS associated with the PDQ
Software.
11.
Software Support and Maintenance. Unless you purchased a license to the
Software, this Agreement and your use the Software does not entitle you to receive from
PDQ any support or maintenance services for the Software, including without limitation
other releases of the Software that correct errors or defects in the Software (except as
provided in the Limited Warranty) or that contain enhancements or other Improvements
to the Software. Support and maintenance is not guaranteed including as to performance
or compatibility, and may not meet your needs or work adequately for you or your
system. The fact that PDQ, in its sole discretion, may provide certain support or
maintenance services to you without charge, such as resources that may be available
without charge on PDQ’s website, shall not be construed as an agreement, understanding,
or obligation by PDQ to continue to provide you such resources, or to provide you any
other Software support, maintenance, and/or other services. PDQ makes no commitment
to continue supporting any or all versions of the Software, and therefore, your right to
receive support and maintenance under a paid license for the Software may require that
you upgrade or update your license to and for the latest version of the Software, which
may include payment of additional fees.
12.
Effective Date. This Agreement is effective from earliest date you download,
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receive, or install the Software, and shall remain in force until terminated as provided in
this Agreement.
13.
Termination.
a.
By You. You may terminate this Agreement at any time only by
destroying and permanently erasing all copies of the Software in your possession, use, or
control, and certifying to PDQ in writing or by email to [email protected] that you and
your entity have done so, and are thereby terminating this Agreement. This Agreement
will only terminate if that certification is true, complete, and accurate.
b.
For Breach. Your license to use the Software shall terminate immediately
upon the earliest occurrence of any of the following: (a) a breach by you, or your entity,
of this Agreement; or (b) any assignment, transfer, publication, or disposition of the
Software by you, except as expressly provided herein or as otherwise expressly
authorized in writing by PDQ, in its discretion.
c.
Partial Termination. By written notice to you or your entity, PDQ may
terminate this Agreement, as specified in that notice, with respect to any portion of the
Software, including any TPS available for installation through the Software.
d.
Effect of Termination. On termination of this Agreement, you agree to
destroy and permanently erase all copies of the Software in your possession, use, or
control. The following Sections of this Agreement shall survive the termination of this
Agreement: Sections 2.c, 3, 4, 5, 7.b, 13.d, 14, and 16.
14.
Miscellaneous.
a.
Export Restrictions. U.S. export laws, rules, and regulations may apply
to the Software. The Software may not be exported, accessed, downloaded, redistributed,
or used, even with your entity, 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. You agree
that you will comply with 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, you (i) represent and warrant to PDQ that you are not restricted from receiving
U.S. products and that you agree to comply with all applicable U.S. export and other
laws, rules, and regulations, and all host country import laws, rules, and regulations; (ii)
agree that you will not export or re-export the Software, any part thereof, or any process
or service that is the direct product of the Software, in violation of any applicable laws or
regulations of the U.S. or of the country in which you obtained, install, use, and/or
possess the Software; and (iii) you will promptly report any violation of the foregoing to
PDQ at [email protected] and thereafter cooperate with PDQ to resolve the violation.
b.
U.S. Government Restricted Rights. The Software is commercial
computer software developed at private expense, is published and protected by copyright,
and is provided with Restricted Rights (as defined in applicable U.S. regulations). Use,
duplication, and/or disclosure by civilian agencies of the U.S. Government shall be
governed by the terms and restrictions of this Agreement and FAR §52-227-14
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Alternative III(g)(3), as applicable, subject to FAR §52.227.19(c). Use, duplication, and
disclosure by agencies of the U.S. Department of Defense shall be governed by the terms
and restrictions of this Agreement, as provided in DFARS §227.7202 and other
applicable laws and regulations now or hereafter applicable. The Contractor/Licensor is
PDQ.com Corporation, P.O. Box 1229, Salt Lake City, UT 84110.
c.
Waiver. The failure of or delay by PDQ at any time to enforce
performance of this Agreement shall not be construed as a waiver of the right to enforce
full or strict performance of this Agreement at any subsequent time. Any waiver of a
breach or obligation under this Agreement must be in writing.
d.
Rights and Remedies. No right or remedy conferred upon or reserved to
PDQ in this Agreement is exclusive of any other right or remedy that may be available at
law or in equity, but each such remedy shall be cumulative of every other right or remedy
now or hereafter existing.
e.
Governing Law; Venue. This Agreement will be governed by 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
litigation regarding this Agreement must be conducted exclusively in a state or federal
court of competent jurisdiction within Salt Lake County, Utah, and such court’s appellate
courts. You agree to irrevocably submit to the personal jurisdiction and venue of such
court(s), and agree and submit to such exclusive jurisdiction and venue. The provisions
of the United Nations Convention on Contracts for the International Sale of Goods are
excluded from this Agreement and from any transaction relative to this Agreement.
f.
Attorney Fees; No Jury. In any action or proceeding with respect to this
Agreement, the prevailing party shall be entitled to recover its costs, expenses, and
reasonable attorneys’ fees. THE PARTIES HEREBY AGREE THAT NEITHER WILL
REQUEST A JURY FOR ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, AND EXPRESSLY WAIVE ANY AND ALL RIGHT TO
ANY JURY TRIAL THAT NOW OR HEREAFTER MAY EXIST UNDER STATE,
FEDERAL, CONSTITUTIONAL, OR OTHER LAW.
g.
Severability. If any provision of this Agreement is invalid under
applicable law, such provision shall be limited, narrowed, or construed as necessary to
the extent necessary to make it valid. If necessary, the invalid provision shall be
eliminated from this Agreement with the remainder of this Agreement in full force and
effect.
h.
Entire Agreement. This Agreement sets forth the entire understanding
and agreement between you and PDQ, and supersedes all prior communications,
proposals, representations, and/or agreements, whether written or oral, express or
implied, with respect to the Software or any other subject matter covered by this
Agreement. This Agreement may not be modified or terminated orally, and no
modification shall be valid unless it is made in writing, signed by a duly authorized
representative of the party to be charged thereby. NO SALESPERSON, SUPPORT
PERSON, OR ANY OTHER EMPLOYEE OF PDQ IS AUTHORIZED TO MODIFY
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THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR
PROMISE WITH RESPECT TO THE SOFTWARE WHICH IS DIFFERENT THAN,
OR IN ADDITION TO, THE REPRESENTATIONS, PROMISES, AND THE LIMITED
WARRANTY THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. ONLY
A DULY-AUTHORIZED OFFICER OF PDQ HAS AUTHORITY TO MODIFY THIS
AGREEMENT AND ONLY IN A PAPER WRITING DULY EXECUTED (AND NOT
MERELY IN AN EMAIL). ANY MODIFICATION MUST REFER TO THIS
AGREEMENT AND THE SPECIFIC PROVISION TO BE MODIFIED. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING PROVISION, ANY
STATEMENTS MADE IN FORUM POSTS OR IN SUPPORT EMAILS, BY
WHOMEVER MADE, SHALL NOT MODIFY OR WAIVE ANY PROVISION OF
THIS AGREEMENT.
i.
Transfer or Assignment. Your license right in any Software may not be
sold, assigned, licensed, or otherwise transferred to any other party, by operation of law,
or otherwise, without the prior express written consent of PDQ. PDQ may assign this
Agreement without notice to you at any time to any person who acquires substantially all
of PDQ’s business assets relative to the Software or service, who will assume PDQ’s
rights and obligations under this Agreement.
j.
Interpretation. Section and other headings in this Agreement are for
convenience of reference only and shall not affect interpretation of this Agreement.
Whenever the context reasonably permits, the singular shall include the plural, the plural
shall include the singular, and the whole shall include any part thereof.
k.
Relationship. You and PDQ are independent contractors. You are not a
partner, joint venturer, franchisee, or representative of PDQ. Neither you nor PDQ have
any authority to make any representation or to incur any obligation or liability on behalf
of the other party to this Agreement, or to make any representation inconsistent with this
section. There are no intended third party beneficiaries of this Agreement, except as
expressly stated herein.
l.
English Language. This Agreement is written in and governed by the
English language. If there is any conflict between the English language version of the
Agreement and any translation of it, this English language version shall control.
15.
Limited Warranty. PDQ warrants to you that for a period of 90 calendar
days from the earlier of the date you first download, receive, or install the Software
(or for Improvements, for 90 calendar days from the date you first receive or
download the Improvement, whichever is earlier) that the Software, when properly
installed and used in compliance with this Agreement and the Documentation, shall
operate on compatible equipment and operating system software, substantially in
accordance with the specifications set forth in the Documentation (the “Limited
Warranty”). This Limited Warranty is contingent upon your compliance with this
Agreement, and promptly notifying PDQ in writing of any and all errors and nonconformities within the 90 days warranty period. Changes made to any Software
during the warranty period for the purpose of error correction shall not cause the
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warranty period to be extended. THE Limited Warranty DOES NOT APPLY TO
ANY TRIAL VERSIONS OR FREE VERSIONS OF THE Software.
16.
Disclaimers and Limitations of All Liabilities.
a.
Damage To Other Hardware/Software Excluded. THE Limited
Warranty DOES NOT COVER DAMAGE TO THE PDQ Software, OR TO YOUR
SOFTWARE OR ANY TPS OR EQUIPMENT, CAUSED BY POWER SPIKES,
OUTAGES, OR VARIATIONS, OR ANY OTHER HARMFUL ENVIRONMENTAL
OR OPERATING CONDITIONS, ACTS OF GOD, TERRORISM, SABOTAGE, USER
ERROR, THIRD PARTY DEVICES, CONFIGURATION CHANGES NOT
CONTEMPLATED OR COMPLETED BY OR UNDER THE EXPRESS DIRECTION
OF PDQ, OR YOUR ABUSE, NEGLECT, AND/OR NEGLIGENCE. THE Limited
Warranty DOES NOT EXTEND TO SOFTWARE VIRUSES, MALWARE,
CORRUPTED SOFTWARE, OR DATA. THE Limited Warranty IS NULL AND VOID
IF ANY ATTEMPT IS MADE TO MODIFY THE PDQ Software BY ANYONE
OTHER THAN PDQ OR PERSON(S) ACTING UNDER THE EXPRESS DIRECTION
OF PDQ.
b.
TPS; Library Packages. THE Limited Warranty DOES NOT COVER
ANY TPS, LIBRARY PACKAGE THAT MAY BE PROVIDED TO YOU BY PDQ OR
THAT MAY BE REFERENCED BY ANY PDQ Software. SIMILARLY, THE Limited
Warranty DOES NOT COVER ANY DAMAGE THAT MAY BE CAUSED TO YOU,
YOUR EQUIPMENT, YOUR SOFTWARE, YOUR EMPLOYEES OR PERSONNEL,
OR OTHERS, OR CAUSED BY ANY TPS, LIBRARY PACKAGE, ALL OF WHICH
ARE PROVIDED “AS IS” WITH ALL FAULTS, AND WITHOUT WARRANTY,
EXPRESS OR IMPLIED.
c.
Compatibility with Other Hardware/Software. THE PDQ Software IS
ONLY COMPATIBLE WITH CERTAIN HARDWARE AND OPERATING
SYSTEMS. THE Limited Warranty DOES NOT APPLY TO NON-COMPATIBLE
HARDWARE OR OPERATING SYSTEMS. CONTACT PDQ FOR COMPATIBILITY
INFORMATION. PDQ DOES NOT GUARANTEE THAT ITS COMPATIBILITY
RECOMMENDATIONS OR SPECIFICATIONS WILL MEAN YOUR HARDWARE
OR SOFTWARE, OR SYSTEM, IS COMPATIBLE. PDQ MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING THE COMPATIBILITY OF
ANY TPS OR HARDWARE. PUBLISHED SPECIFICATIONS FOR THE PDQ
Software MAY BE CHANGED BY PDQ AT ANY TIME, IN ITS SOLE DISCRETION,
AND MAY CONSTITUTE A CHANGE IN SPECIFICATIONS FOR PURPOSES OF
THE Limited Warranty. IT IS YOUR RESPONSIBILITY TO LEARN OF SUCH
CHANGES AND UPDATES FROM PDQ’S WEBSITE OR OTHER INFORMATION.
d.
Software Not Designed For Fail-Safe Performance. THE PDQ
Software IS NOT DESIGNED TO BE FAULT TOLERANT. THE PDQ Software IS
NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE WITH ON-LINE
CONTROL EQUIPMENT IN HAZARDOUS OR MISSION CRITICAL
ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE
OPERATION OF NUCLEAR FACILITIES, AIRCRAFT CONTROL OR
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NAVIGATION, COMMUNICATION SYSTEMS, CONTROL SYSTEMS, DIRECT
LIFE SUPPORT SYSTEMS, WEAPONS OR SAFETY SYSTEMS, OR OTHER USES
IN WHICH FAILURE OF THE PDQ Software OR ANY TPS COULD LEAD
DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL,
EMOTIONAL, MENTAL, OR ENVIRONMENTAL DAMAGE, OR SIGNIFICANT
FINANCIAL OR OTHER LOSS. PDQ DISCLAIMS ALL LIABILITY FOR ANY
DEATH, INJURY, OR DAMAGE RESULTING FROM ANY SUCH USE OF ANY
PDQ Software AND TPS.
e.
Your Back Up Obligations. IT IS YOUR RESPONSIBILITY, PRIOR
TO INSTALLING OR CONFIGURING ANY PDQ Software, INSTALLING OR
CONFIGURING ANY UPDATES OR UPGRADES TO SUCH SOFTWARE, OR
RECEIVING ANY SUPPORT, MAINTENANCE, OR OTHER SERVICES FROM
PDQ, REGARDLESS OF WHETHER YOU HAVE PAID PDQ ANY LICENSE,
SUPPORT, MAINTENANCE, OR OTHER FEE, TO BACK UP THE CONTENTS OF
ALL OF YOUR HARD DRIVES AND OTHER ELECTRONIC STORAGE DEVICES
FOR ALL COMPUTING SYSTEMS ON OR WITH RESPECT TO WHICH THE PDQ
Software IS USED, INCLUDING WITHOUT LIMITATION ANY DATA, YOUR
OTHER SOFTWARE OR TPS, SETTINGS, AND OTHER INFORMATION STORED
OR INSTALLED THEREON. PDQ SHALL HAVE NO RESPONSIBILITY OR
LIABILITY WHATSOEVER TO YOU, YOUR ENTITY, OR ANY OTHER PERSON
FOR (i) ANY DAMAGE TO OR LOSS OF ANY OF YOUR SOFTWARE OR TPS,
DATA, OR OTHER INFORMATION STORED ON ANY HARD DRIVE OR OTHER
DATA OR MEMORY STORAGE DEVICE, OR (ii) ANY DIRECT, GENERAL,
CONSEQUENTIAL, SPECIAL, INDIRECT, OR OTHER DAMAGES RESULTING
THEREFROM, EVEN IF PDQ IS ADVISED OF THE POSSIBILITY THEREOF. YOU
ASSUME ALL RISK OF LOSS AND DAMAGES ASSOCIATED THEREWITH. ANY
OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH
USE OF ANY PDQ SERVICES IS AT YOUR DISCRETION AND RISK, AND YOU
ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER
SYSTEM, ANY LOSS OF DATA, AND ANY OTHER LOSS OR DAMAGE THAT
RESULTS THEREFROM, INCLUDING WITHOUT LIMITATION, ANY DAMAGES
RESULTING FROM COMPUTER VIRUSES, MALWARE, AND OTHER
MALICIOUS COMPUTER CODE OR MATERIALS.
f.
Disclaimer of Implied and Other Warranties. PDQ MAKES NO
WARRANTY, PROMISE, OR REPRESENTATION NOT EXPRESSLY SET FORTH
IN THE Limited Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
AND EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, PDQ
PROVIDES THE PDQ Software AND ANY AND ALL SUPPORT, MAINTENANCE,
AND OTHER SERVICES TO YOU WITHOUT ANY OTHER WARRANTY,
EXPRESS OR IMPLIED, AND DISCLAIMS ANY AND ALL OTHER WARRANTIES
AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES (IF ANY) OF
MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS,
COMPATIBILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY,
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ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS,
WORKMANLIKE EFFORT, LACK OF VIRUSES AND MALWARE, AND LACK OF
NEGLIGENCE, AND ALL OTHER STATUTORY AND OTHER WARRANTIES OF
OR IMPLIED BY LAW THAT ARE INCAPABLE OF EXCLUSION, RESTRICTION,
MODIFICATION, OR DISCLAIMER. THERE IS NO WARRANTY OR CONDITION
OF TITLE, QUIET ENJOYMENT, OR QUIET POSSESSION. THE TERMS OF ANY
WARRANTIES THAT BY LAW CANNOT BE DISCLAIMED BY THE FOREGOING
ARE LIMITED TO 90 DAYS, OR THE SHORTEST PERIOD PERMITTED BY LAW
IF LESS TIME IS POSSIBLE OR IF A LONGER TIME IS REQUIRED.
g.
Limitations on Type and Amount of Damages. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
PDQ BE LIABLE TO YOU OR YOUR ENTITY, OR ANY PERSON OR ENTITY
CLAIMING THROUGH YOU, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE,
DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IN THE
EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), NEGLIGENT
MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT, OR
BREACH OF WARRANTY OF OR BY PDQ, AND EVEN IF PDQ HAS BEEN
ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION MEANS, FOR
EXAMPLE, THAT PDQ INTENDS NOT TO BE RESPONSIBLE FOR ANYTHING
OTHER THAN ITS Limited Warranty, AND IS NOT RESPONSIBLE OR LIABLE
FOR DAMAGES OR COSTS INCURRED BY YOU, YOUR ENTITY, OR ANY
PERSON OR ENTITY CLAIMING THROUGH YOU, FOR ANY LOSS OF
RESOURCES, TIME, DATA, INCOME, OR USE OF THE PDQ Software, OR FOR
DAMAGES TO, CAUSED BY, OR AS A RESULT OF DAMAGE TO, ANY DEVICE
CONTROLLING, CONTROLLED, OR OTHERWISE AFFECTED BY THE PDQ
Software. IN ADDITION, PDQ IS NOT RESPONSIBLE OR LIABLE FOR DAMAGES
OR COSTS INCURRED IN CONNECTION WITH OBTAINING SUBSTITUTE
SOFTWARE, IF ANY, INCONVENIENCE, OR SIMILAR DAMAGES OR COSTS.
WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS IN THIS
AGREEMENT, IN NO EVENT SHALL PDQ’S LIABILITY FOR ANY DAMAGES
TO YOU, YOUR ENTITY, OR ANY OTHER PERSON OR ENTITY, EXCEED THE
FEES RECEIVED BY PDQ FOR THE LICENSE TO USE THE SOFTWARE, OR THE
AMOUNT RECEIVED BY PDQ FOR THE SERVICES, AS THE CASE MAY BE,
REGARDLESS OF THE FORM OF THE CLAIM OR THE THEORY OF LIABILITY,
WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE.
h.
Allocation of Risk. YOUR SOLE AND EXCLUSIVE REMEDIES ARE
SET FORTH IN THIS AGREEMENT, AND IN THE Limited Warranty, WHICH
DEFINES THE AGREED-UPON ALLOCATION OF RISKS AND WHICH
ALLOCATION WAS REFLECTED IN THE FEES (IF ANY) THAT PDQ CHARGES.
ALL OF THE FOREGOING LIMITATIONS, DISCLAIMERS, AND EXCLUSIONS
CONTAINED IN THIS AGREEMENT OR THE Limited Warranty SHALL APPLY TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY
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REMEDY FAILS OF OR IN ITS ESSENTIAL PURPOSE.
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