End User License Agreement
IMPORTANT: This End User License Agreement ("EULA") is a legal agreement between you and Qualmark Corporation (“Qualmark”) regarding use of Qualmark’s web-based education programs for training in the use of HALT, HASS and HASA Systems (the “Software”). Read this EULA carefully. By clicking Login, you accept and agree to abide by this EULA. If you do not agree with all the terms of this EULA, do not log in.
1. License Grant
Subject to the terms and conditions of this EULA, you may use, access, display, and run the Software on a single computer for your own training purposes for as long as Qualmark makes the Software available to you. The Software may not be shared, installed, or used concurrently on different computers. Each user of the Software must agree to this EULA. Your license rights under this EULA are non-exclusive and non-transferable. This license is limited to use of the Software by a single user.
2. License Restrictions
(a) You may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network or the internet.
(b) You may not alter, merge, modify, adapt, translate, or create derivative works of the proprietary components of the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the proprietary components of the Software to a human-perceivable form.
(c) The Software is licensed, not sold. Unless otherwise provided herein, you may not rent, lease, or sublicense the Software.
(d) You may not export the Software to any country prohibited by the United States Export Administration Act and the regulations thereunder or as otherwise prohibited by law.
(e) In the event that you fail to comply with this EULA, Qualmark may terminate the license and upon termination you must destroy all copies of the Software, including, but not limited to, copies contained on the CD or any archival copies, on any and all computers.
3. Ownership
Qualmark and its suppliers retain all right, title and interest, including, but not limited to, all copyright and intellectual property rights, in and to the Software and all copies thereof. All rights not specifically granted in this EULA are reserved by Qualmark. You have no right, title or interest with respect to the Software except the rights specifically granted by this EULA.
4. Use of Software
The Software contains functions that are for training individuals in the use of HALT, HASS and HASA Systems. The performance of individuals trained using the Software vary and Qualmark and its agents, suppliers, affiliates, successors and assigns, and their officers, directors and employees, are not responsible for the the services provided by individuals trained using the Software or any determinations or decisions made by those trained using the Software.
5. DISCLAIMER OF WARRANTIES
(a) QUALMARK DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT OR TITLE OR QUIET ENJOYMENT. QUALMARK DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR WILL NOT CAUSE LOSS OF OR DAMAGE TO DATA STORED ON COMPUTERS ON WHICH IT IS INSTALLED. QUALMARK SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
(b) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY.
(c) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QUALMARK, ITS AFFILIATES, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY.
6. Exclusive Remedy
Your exclusive remedy for any claim arising from or relating to the Software, use of the Software, or this EULA is to return the Software to Qualmark for a refund of any consideration paid specifically for the Software. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU.
7. LIMITATION OF LIABILITY
(a) QUALMARK SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF QUALMARK OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(c) QUALMARK SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THE USE OF THE SOFTWARE AS A PART OF OR IN CONNECTION WITH ANY PERFORMANCE TRAINING OR EMPLOYMENT DECISION, REGARDLESS OF THE THEORY OF LIABILITY OR THE FORM OF THE CLAIM OR ACTION, EVEN IF QUALMARK OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
8. Indemnity
You agree to defend, indemnify and hold harmless Qualmark and its agents, suppliers, affiliates, successors and assigns, and their officers, directors and employees from and against any and all liabilities, losses, damages, expenses or claims of any nature whatsoever, including court costs and attorneys’ fees, arising from or relating to the Software, or use or the Software (including, but not limited to, your testing of products after training using the Software), or this EULA. You agree that you will not enter into any settlement or other compromise of any such claim or action relating to the Software without the prior written consent of Qualmark, which consent shall not unreasonably be withheld.
9. Basis of Bargain
The Disclaimer of Warranties, Exclusive Remedy, Limitation of Liability and Indemnity set forth in Sections 5, 6, 7, and 8 above are fundamental elements of the basis of the agreement between you and Qualmark. Qualmark would not be able to provide the Software on an economic basis without such limitations. The Disclaimer of Warranties, Exclusive Remedy, Limitation of Liability and Indemnity inure to the benefit of Qualmark and its employees, agents, suppliers, affiliates, successors and assigns. Sections 5, 6, 7, and 8 shall survive any termination or expiration of this EULA.
10. General
This EULA shall be governed by the laws of the State of Colorado, without giving effect to its principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Denver County, Colorado and the federal courts in the District of Colorado to resolve any disputes arising under or relating to this EULA and agree that such courts shall be the exclusive forums for any such dispute.
This EULA contains the complete agreement between Qualmark and individual users of the Software with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. Any failure or delay of Qualmark to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No Qualmark agent or employee is authorized to make any amendment to this EULA. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.