IMPORTANT: READ THIS AGREEMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN Performance Innovation Ltd. (AS DEFINED BELOW) AND YOU (ACTING AS AN INDIVIDUAL OR, IF APPLICABLE, ON BEHALF OF THE INDIVIDUAL OR ENTITY ON WHOSE COMPUTER THE SOFTWARE IS INSTALLED). IF YOU CLICK THE “ACCEPT” OPTION OR INSTALL THE SOFTWARE PRODUCT ACCOMPANYING THIS AGREEMENT (THE “SOFTWARE”) YOU WILL BE BOUND BY THIS AGREEMENT.
You are not required to accept these terms but, unless and until you do, the Software will not install and you will not be authorized to use the Software.
If you do not wish to agree to these terms, please click “DO NOT ACCEPT” and, if applicable, obtain a refund of the purchase price as follows:
NOTICE: THE SOFTWARE MAY CONTAIN A “TIME OUT” FEATURE THAT WILL RENDER THE SOFTWARE INOPERATIVE AT THE END OF THE TERM (AS DEFINED BELOW).
END USER SOFTWARE LICENSE AGREEMENT
a. Authorized Purposes means (i) personal, noncommercial purposes in the case of
Software known as Focus, and (ii) your personal purposes or the
internal business purposes of you and your Affiliates in the case of other Software.
b. Affiliate means, with respect to any party, an entity controlling, controlled by or under common control with the applicable party. “Control,” as used in this Section 1.b, means ownership of more than 50% of the outstanding voting interest of the applicable entity.
c. Applicable Conditions means the terms and conditions specified (i) in your order if you downloaded the Software in electronic form over the Internet, (ii) on the Software package if you purchased the Software on CD or other physical medium, or (iii) by your supplier if you received the Software in combination with other hardware or software. Applicable Conditions may include, without limitation, any terms or conditions specifying the duration of the Initial Term and the maximum number of computers on which you are authorized to use the Software.
d. Performance Innovation Ltd. means, with respect to the Software known as Focus, Performance Innovation Ltd. a company formed under the laws of the UK.
e. Free Software means Software provided to you without charge, including without limitation Software (i) known as Focus Demo software (ii) provided for trial or evaluation purposes, or (ii) marked or otherwise designated as a “beta test” version of a software product.
f. Initial Term means the period beginning on the date you downloaded or otherwise acquired the Software and continuing for the term specified by the Applicable Conditions.
g. Renewal Term has the meaning ascribed to it by Section 3.a of this Agreement.
h. Term means the Initial Term together with all Renewal Terms.
2. License Grant; Related Provisions.
a. Grant of License. Performance Innovation Ltd., subject to the terms and
conditions of this Agreement, hereby grants to you a non-exclusive and non-transferable license
during the applicable Term to use the Software only in executable or object code form, and solely
for Authorized Purposes in accordance with the Applicable Conditions. Without limiting the
foregoing, if you received the Software in combination with a personal computer, network appliance
or other hardware product, your license authorizes you to use the Software solely in conjunction
with the applicable unit of hardware. ANY USE OF THE SOFTWARE OTHER THAN AS EXPRESSLY AUTHORIZED BY
THIS SECTION 2, OR ANY RESALE OR FURTHER DISTRIBUTION OF THE SOFTWARE, CONSTITUTES A MATERIAL BREACH
OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS.
b. Limitations. You shall not, and shall not permit any third party to, (i) duplicate the Software for any purpose other than as reasonably necessary to use the same as contemplated by this Agreement and for off-line archival and disaster recovery purposes, (ii) install the Software on more computers than authorized by the Applicable Conditions, (iii) except as expressly authorized by Performance Innovation Ltd., use any license number supplied by Performance Innovation Ltd. (each, a “License Number”) in connection with Software on more than one (1) computer at any time, (iv) disclose any License Number to any party other than Performance Innovation Ltd. or, as required to obtain support services in respect of the Software, Performance Innovation Ltd.’ designated representatives, (v) publish the Software or any License Number or use the same other than for Authorized Purposes, (vi) except as expressly authorized by law, reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract the Software or any portion of the Software (including without limitation any related plug-ins), (vii) except as expressly authorized by law, change, modify or otherwise alter the Software (including without limitation any related plug-ins), (viii) transfer, pledge, rent, share or sublicense the Software other than in connection with the sale, lease, rental or other transfer of the computer on which it is installed in compliance with the Applicable Conditions, (ix) grant any third party access to or use of the Software on a service bureau, timesharing, subscription service or application service provider or other similar basis, or (x) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of the Software.
c. Updates. Performance Innovation Ltd., from time to time during the Term, may provide updates to the Software and/or the plug-ins included therein (each, an “Update”). Updates will be deemed Software for all purposes under this Agreement. You acknowledge that you must routinely download and permit installation of Updates in order to obtain maximum benefit from the Software. As part of the software and service delivery of the Focus Software, you further acknowledge that all or some portion of each Update may be installed automatically without any action on your part. In no event shall Performance Innovation Ltd. be obligated to provide you with Updates following the expiration or termination of the Term, and Performance Innovation Ltd. in its sole discretion may terminate Updates for any version of the Software other than the most current version, or Updates supporting use of Software in connection with versions of any third party operating systems, email programs, browser programs and other software other than the most current version.
d. Customer Comments. Performance Innovation Ltd. welcomes your comments concerning the Software, including notice that you have experienced a Software failure, error or other malfunction and suggestions for additional or different features and functions. Please send us your comments and suggestions using the web form located at firstname.lastname@example.org. Performance Innovation Ltd. shall have no obligation to respond or act on to any such comments or suggestions, but you grant Performance Innovation Ltd. a perpetual, irrevocable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to implement your comments and suggestions in the Software and other products and services offered by Performance Innovation Ltd., its Affiliates, and their respective licensors, licensees, successors and assigns.
e. Testing, Benchmarking. You shall not, and shall not permit any third party to test or benchmark nor externally disclose or publish testing or benchmark results for any Focus Software without Performance Innovation Ltd.' prior written consent. Requests for authorization for testing or benchmarking can be directed through testing and benchmarking authorization section on Performance Innovation Ltd.' website www.performanceinnovation.net.
3. Renewals, Termination.
a. Renewals. Performance Innovation Ltd., prior to the conclusion of the Initial
Term or the then-current Renewal Term, may offer you the opportunity to extend the licenses granted
by this Agreement at Performance Innovation Ltd.’ then-current renewal price. You may accept any
such offer by following the directions and paying the renewal price set forth in the offer, at which
time the term of the Agreement will be extended for the applicable period (each, a “Renewal
b. Termination. Performance Innovation Ltd., in addition to such other rights may be available at law or equity, shall be entitled to terminate the license granted by this Agreement without liability (i) for convenience on five (5) days’ prior notice, provided that Performance Innovation Ltd., in its sole discretion, shall either refund to you the license fees you paid in respect of the then-current initial term or renewal term, prorated over the applicable term, or grant license for substantially similar product for the remainder of the Term, or (ii) for cause at any time without notice if you commit a material breach of this Agreement.
c. Effect of Termination. On the expiration or termination of this Agreement, you will cease using the Software, Performance Innovation Ltd. may cease making Updates available to you, and the Software may cease functioning.
Performance Innovation Ltd. reserves all rights in the Software not expressly granted by this Agreement. All copyrights, trademarks and other conceivable intellectual property rights in and to the Software (including plug-ins) are owned by Performance Innovation Ltd. or its licensors, and are protected by UK and foreign copyright laws, international treaties and other applicable laws. Any copy of the Software you are allowed to make pursuant to this Agreement must contain the entire copyright and other notices included with the original copy of the Software.
a. General. Performance Innovation Ltd. warrants that, on delivery of the Software
and for a period of thirty (30) days thereafter, that the medium (if any) on which the Software is
delivered will be free of material defects, and that the Software will perform substantially in
accordance with the applicable specifications. The foregoing warranty applies only to the Software
as originally delivered, and does not apply to Updates. Your sole and exclusive remedy for breach of
this Warranty is replacement of the defective media or Software or, at Performance Innovation Ltd.’
option, return of the Software for a full refund. In order to exercise your rights under this
Section 5, you must deinstall and destroy all copies of the Software you may have made (including
all archival copies), and (i) if you purchased the Software by download, follow the instructions at
www.performanceinnovation.netand contact us with
your refund request, or (ii) for all other purchases, return the Software in its original package,
along with your receipt, to the point of purchase.
b. Free Software. THE PROVISIONS OF THIS SECTION 5.b APPLY IN PLACE OF SECTION 5.a WITH RESPECT TO FREE SOFTWARE. ALL FREE SOFTWARE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTY AND WITHOUT SUPPORT OR OTHER SERVICES BY Performance Innovation Ltd..
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 5.a OF THIS AGREEMENT, Performance Innovation Ltd. DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTY OF NONINFRINGEMENT. Performance Innovation Ltd. DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow limitations on certain implied warranties, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
d. Hazardous Environments. You acknowledge that the Software is not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use the Software. Without limiting the provisions of Sections 5.b and 5.c of this Agreement, Performance Innovation Ltd. and its licensors hereby disclaim any express or implied warranties of fitness for such uses.
6. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Performance Innovation Ltd. OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES INCURRED FOR LOSS OF BUSINESS PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY COMPUTER OR SOFTWARE INCLUDING THE SOFTWARE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE PROVIDED HEREUNDER, EVEN IF Performance Innovation Ltd. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Performance Innovation Ltd.’ LIABILITY RELATED THE SOFTWARE EXCEED THE LESSER OF THE FEES YOU ACTUALLY PAID FOR THE SOFTWARE AND Performance Innovation Ltd.’ SUGGESTED RETAIL PRICE FOR THE SOFTWARE AS OF THE DATE YOU RECEIVED IT (OR, WITH RESPECT TO FREE SOFTWARE, UK£5.00). THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. Privacy and Security.
a. General. You acknowledge that Performance Innovation Ltd. collects and sends to
Performance Innovation Ltd. certain information regarding the users of the Software, including
certain personally identifiable information as well as certain information from the user’s computer,
including (i) certain information about your computer software and hardware such as your IP address,
operating system, Web browser software and version. You hereby consent to Performance Innovation
Ltd.’ collection and use of such information, and agree that Performance Innovation Ltd.’ collection
currently published at www.performanceinnovation.net,
as Performance Innovation Ltd. may revise the same from time to time.
8. Specific terms for third party products.
By accepting this Agreement you understand and agree that where applicable, any hardware equipment or third party software product and/or service supplied by Performance Innovation Ltd. shall include any warranties and/or other terms made available by the original manufacturer of such hardware, software or service and you further acknowledge and confirm that you have reviewed and accepted the terms and conditions, specific to the relevant applicable hardware, software and/or service, available at www.performanceinnovation.net.
a. Notice. Performance Innovation Ltd. may deliver any notice to you via pop-up window, dialog box or other means, even though you may not receive the notice unless and until you launch the Software. Any such notice will be deemed delivered on the date Performance Innovation Ltd. first makes it available through the Software, irrespective of when you actually receive it.
b. Complete Agreement. This Agreement constitutes the complete Agreement between the parties and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof.
c. Amendments, Waiver. This Agreement may not be modified or changed in whole or in part in any manner other than by an Agreement in writing duly signed by both parties hereto or by a further electronic agreement presented by Performance Innovation Ltd. and accepted by you. Performance Innovation Ltd.’ failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
d. Severability. The parties desire and intend that all of the provisions of this Agreement be enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application thereof to any person or circumstances is, to any extent, construed to be illegal, invalid or unenforceable, in whole or in part, then such provision will be construed in a manner to permit its enforceability under applicable law to the fullest extent permitted by law. In any case, the remaining terms of this Agreement or the application thereof to any person or circumstance, other than those that have been held illegal, invalid or unenforceable, will remain in full force and effect.
e. Governing Law. This Agreement will be governed by the laws of the UK.
f. Export Controls. You acknowledge that portions of the Software may be of UK origin. You agree to comply with all applicable UK and international laws governing export and re-export of the Software, including the end-use and destination restrictions issued by UK and other governments.
g. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of you and Performance Innovation Ltd.. No person not a party to this Agreement may bring a cause of action pursuant to this License Agreement as a third party beneficiary hereof.
h. Language. This Agreement was originally prepared in the English language. Although Performance Innovation Ltd. may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.