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Quark Terms of Sale

These Terms of Sale (“Agreement”) apply to customer’s purchase of products and/or services and support (“Product”). By placing the order for Product customer accepts and is bound to the terms of this Agreement. If customer has placed an order but does not wish to be subject to these Terms of Sale, customer must promptly cancel its order or return its purchase in accordance with Quark’s return policy (see Section 3 below) within 7 days of the invoice date for a refund of customer’s purchase price minus shipping and handling.

  1. Payment Terms. The terms of payment shall be subject to approval of Quark's credit department, and shall be effective from the date of invoice. Shipments or deliveries shall at all times be subject to the approval of Quark's credit department and Quark may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment, or upon terms and conditions of security satisfactory to such department. Customer will pay all costs and expenses, including attorneys' fees and expenses, paid or incurred by Quark in collecting payment of past due invoices, whether or not an action is instituted, and in collecting any awards or judgments thereon Customer’s order is subject to cancellation by Quark, in Quark’s sole discretion. Quark is not responsible for pricing, typographical or other errors in any offer by Quark and reserves the right to cancel any orders arising from such errors. Invoices must be paid within 30 days of the invoice date.)

  2. Shipping Charges; Taxes; Title; Risk of Loss. Shipping, handling and tax are additional unless otherwise expressly indicated at the time of sale. Title to products passes from Quark to customer upon shipment to customer. Loss or damage that occurs during shipment will be governed by the agreement between customer and Quark. In the absence of any such agreement, products will be shipped Ex-Works as that term is defined by Incoterms 2010 and risk of loss transfers to Customer upon shipment. Customer must notify Quark within 7 days of the date of the invoice if customer believes any part of the purchase is missing, wrong or damaged. Unless customer provides Quark with a valid and correct tax exemption certificate applicable to its purchase of Product and the Product ship to location, customer is responsible for sales and other taxes associated with the order. Shipping and delivery dates are estimates only.

  3. Return Policies; Exchanges. Unopened software can be returned for a full refund within 7 business days of receipt, unless a longer period is required by law. All items must be returned in their original packaging with all accessories and manuals in saleable condition, and accompanied by the sales receipt. Customer is responsible for shipping and insurance on all return shipments. Quark is not responsible for items lost in return shipping. Prior to returning any item, please contact Quark Customer Service at returns@quark.com for a Return Materials Authorisation Number (“RMA #”). Returns without an RMA# will not be accepted. Quark’s return policy only applies to products purchased directly through Quark. Quark cannot accept the return of products purchased through independent retailers or distributors. If customer would like to return Quark products purchased through an independent retailer or distributor, customer must return products to the store or distributor from whom they were purchased, in accordance with their return policy.

  4. Software. Software is subject to the separate software license agreement accompanying or made available to customer in connection with the software. With respect to software made available to customer by Quark in connection with Services, if no license terms accompany the software, then subject to customer’s compliance with the terms set forth in this Agreement. Quark hereby grants customer a personal, non-exclusive license to access and use such software only during the term of the Services and solely as necessary for customer to enjoy the benefit of the services as stated in the applicable service contract(s). A portion of the software may contain or consist of open source software, which customer may use under the terms and conditions of the specific licenses under which the open source software is distributed. Customer agrees that customer will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).

  5. Governing Law.

    (a) Customers in the United States - Mediation and Arbitration. If a dispute, controversy, or claim arises out of or relates to this Agreement, its termination or non-renewal, or the alleged breach thereof, and if said dispute cannot be settled through direct discussions, the Parties agree to first endeavour to settle the dispute in good faith by mediation with an independent mediator selected by mutual agreement of the Parties. If the Parties are unable to agree on a mediator, mediation shall be administered by the American Arbitration Association under its Commercial Mediation Rules. If the matter has not been resolved pursuant to mediation within thirty (30) days of the commencement of such mediation, then any unresolved dispute, controversy, or claim arising out of or relating to this Agreement, its termination or non-renewal, or the breach thereof, shall be settled by arbitration by a single neutral arbitrator who is a former state or federal judge. Unless the parties agree otherwise, the arbitration shall be conducted by Judicial Arbiter Group (“JAG”) or any similar arbitration organisation using retired state or federal judges if JAG is no longer in existence or is unable to conduct an arbitration in the venue selected by the parties. Venue shall be Denver, Colorado. The decision of the arbitrator shall be final, nonappealable and binding upon the parties, and it may be entered in any court of competent jurisdiction. The arbitrator shall be bound by the laws of the state of Colorado and all rules relating to the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine. The arbitrator shall have the power to grant equitable relief including attorney’s fees and costs, where applicable under law and shall not be entitled to make an award of punitive damages. The obligation of the parties to submit any dispute arising under or related to this Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this Agreement.

    (b) Customers in the United States. Customers whose principal place of business is in the United States, this Agreement shall be governed in all respects by the laws of the State of Colorado, without regard to conflict of laws principles. As to such customers, the U.S. District Court for the State of Colorado, or if federal jurisdiction does not exist, then the appropriate courts of the State of Colorado located in the City and County of Denver shall have sole and exclusive jurisdiction and venue over any dispute arising out of or in connection with this Agreement, and the parties hereby submit themselves to the jurisdiction of said courts.

    (c) All other customers – Governing Law, Mediation and Arbitration. For all other customers whose principle place of business is outside of the United States, this Agreement shall be governed in all respects by the laws of England. If a dispute, controversy, or claim arises out of or relates to this Agreement, its termination or non-renewal, or the alleged breach thereof, and if said dispute cannot be settled through direct discussions, the Parties agree to first endeavour to settle the dispute in good faith by mediation with an independent mediator selected by mutual agreement of the Parties. If the matter has not been resolved pursuant to mediation within thirty (30) days of the commencement of such mediation, then any unresolved dispute, controversy, or claim arising out of or relating to this Agreement, its termination or non-renewal, or the breach thereof, shall be referred to and finally resolved by binding arbitration by the London Court of International Arbitration (LCIA) and in accordance with the LCIA rules of arbitration in force at the time of the opening of the proceedings by one arbitrator. The place of the arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The obligation of the parties to submit any dispute arising under or related to this Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this Agreement.

  6. Not for Resale or Export. Customer agrees not to export or transmit any of the Quark Products, directly or indirectly, except in full compliance with all U.S. Export Administration Regulations and the applicable import/export rules of any other country. Diversion contrary to U.S. or other law is expressly prohibited. Customer agrees to comply with all applicable laws and regulations in regard to export of the Quark Products, if allowed under this Agreement, and the laws, regulations and rules of any country or region which apply to this Agreement, including the U.S. Foreign Corrupt Practices Act.

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