FocalScope – End User License Subscription Agreement

 

BY CLICKING THE “I ACCEPT” BOX OR “CREATE MY ACCOUNT” BOX, OR INSTALLING OR USING THE FOCALSCOPE SOFTWARE THAT YOU HAVE SELECTED TO PURCHASE IN THE ORDERING PROCESS (THE “SOFTWARE”), YOU ARE AGREEING ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE (“COMPANY”) THAT COMPANY WILL BE BOUND BY AND IS BECOMING A PARTY TO THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) AND THAT YOU HAVE THE AUTHORITY TO BIND COMPANY. IF COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE “I ACCEPT” BOX AND DO NOT INSTALL THE SOFTWARE. COMPANY HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE THE SOFTWARE UNLESS AND UNTIL IT HAS AGREED TO BE BOUND BY THESE LICENSE TERMS. THE “EFFECTIVE DATE” FOR THIS AGREEMENT SHALL BE THE DAY YOU CHECK THE “I ACCEPT” BOX OR IN OTHER WAYS ACCEPT THIS AGREEMENT.

 

1.0 Subscription Rights, Restrictions and Ownership

 

1.1 Grant to Company.

(a) A “Subscription User” means one single identified individual (Named-user). Under the terms of a Named User License, the Software is licensed for use by a particular individual as the User. You must pay a license fee for each separate User that you wish to access and use the Software. A Named User License for the Software may not be shared or re-assigned. Notwithstanding the foregoing, you may permanently terminate a named User and assign the named User’s license to a new named User. For example, if a named User ceases to be employed by you, you may re-assign his or her access credentials to a new named User. You may install the FocalScope software on any number of computers necessary to support that Named-user, so long as the software is used only by the Named-user. For the avoidance of doubts multiple individuals are not allowed to share the same “Subscription User” login in any way. Whether concurrently or non-concurrently.

 

A “Subscription User” means a part time employee, full time employee, contractor or agent of the Company and its Affiliates authorized by Company to use the Software per the terms of this Agreement. “Initial Subscription User” means a Company employee, contractor or agent authorized to use the Software upon Company’s payment of the Subscription Fee. “Additional Subscription Users” means a , part time employee, full time employee, contractor or agent of the Company and its Affiliates authorized to use the Software after the Company has paid the Subscription Fee but prior to the termination or expiration of this Agreement. Collectively, all of the “Initial Subscription Users” and “Additional Subscription Users” comprise, and shall be referred to, as the “Subscription Users”.

 

(b) For the term of Company’s Subscription Period (defined below) and subject to Company’s payment of the Subscription Fee (defined below), FocalScope Ptd Ltd. (“FocalScope”) grants Company: 1) the non-exclusive, non-transferable, nonsublicensable right to use and modify the Software only for Company’s own internal use of the Software and limited to the number of Subscription Users for which Company has paid the applicable fee; and 2) the right to receive support as per the support agreement.

 

(d) The Software shall be deemed accepted upon FocalScope’s or Associated Company’s shipment of the subscription key for the Software.

 

(e) “Affiliate” means a company which is controlled, under common control or controlling the Company during the period of such control. For the purposes of this Agreement, “control” shall mean ownership, directly or indirectly, of more than 50% of the voting securities which vote for the election of the board of directors or other managing body. Company shall be responsible for any act or omission of those Subscription Users that are contractors and agents, Company’s Affiliates and of Company’s Affiliates’ compliance with all of the terms of this Agreement. Any action or breach by any of Company’s contractors, agents or Affiliates shall be deemed an action or breach by Company and Company will indemnify and hold FocalScope or Associate Company harmless from any and all breaches of this Agreement by its contractors, agents and Affiliates. Company waives all of those defenses that Company may have as to why Company should not be liable for Company’s contractors’, agents’ or Affiliates’ acts, omissions and noncompliance with this Agreement.

 

1.2 Restrictions.

Company shall not, directly or indirectly: (i) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (a) the Software, (b) any modified version or derivative work of the Software created by the Company or for the Company, or (c) any software, either modified or not, licensed under a FocalScope Public License, for any purpose including timesharing or service bureau purposes; (ii) remove or alter any copyright, trademark or proprietary notice in the Software; (iii) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (iv) use or run on any of Company’s hardware, or have deployed for use, any copy or version of the Software licensed under the FocalScope Public License; (v) reverse engineer, decompile or modify any encrypted or encoded portion of the Software; (vi) modify any open source version of FocalScope’s software source code (“Original Code”) to develop a separately maintained source code program (the “Forked Software”) so that such modifications are not automatically integrated with the Original Code or so that the Forked Software has features not present in the Original Code. The Software includes modules that report the number of authorized Subscription Users and permits FocalScope and Associated Company the ability to monitor certain usage of the Software (“Critical Control Software”) which is fundamental to the business of FocalScope. Notwithstanding the terms of this Agreement, neither the Company nor the Subscription Users may modify any portion of the Critical Control Software. The violation of this prohibition shall be deemed a material breach of this Agreement and FocalScope or Associate Company may immediately terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, during the Subscription Period the Company may continue to use the Software initially provided under this Agreement with the subscription key and us differing databases, web servers or operating systems than the database, web server or operating system initially selected by Company on installation of the Software at no charge. The number of licensed copies may increase, as long as the combined usage does not exceed the number of Subscription Users for which Company has paid. The foregoing is limited to operating systems, web servers or databases supported by FocalScope as of the Effective Date and any additional operating systems, web servers or databases supported by FocalScope in the future.

 

1.3 Proprietary Rights.

FocalScope and its licensors shall own all right, title, and interest to the Software, technology, information, code or software provided to Company, including all portions, copies or modifications thereof. Except as expressly provided herein, no license of any kind are granted hereunder, whether by implication, estoppel, or otherwise.

 

1.4 Grant to FocalScope.

During any term of this Agreement, Company grants to FocalScope or Associate Company a non-transferable, non-exclusive, license to reproduce and display Company’s logos, trademarks, trade names and similar identifying material so that FocalScope or Associate Company may refer to Company as a user of the Software should FocalScope or Associate Company so desire, such as on the FocalScope website, in press releases and in other marketing materials.

 

2.0 Fees and Payment

 

2.1 Subscription User Accounts:

Company shall designate a Subscription Administrator and notify FocalScope or Associate Company of the identity and contact information for said Subscription Administrator. The Subscription Administrator may add Subscription Users to the Company’s subscription for the Software by placing an order with FocalScope or Associate Company. Company is responsible for all activity occurring under Company’s Subscription User’s accounts. Company shall notify FocalScope or Associate Company immediately of any unauthorized use of any password, account, copying or distribution of the FocalScope Technology. Subscription User accounts cannot be shared or used by more than one individual Subscription User but may be reassigned to new Subscription Users replacing former Subscription Users.

 

2.2 Subscription Fee.

Company shall pay to FocalScope or Associate Company an amount specified on FocalScope’s or Associate Company’s quotation/order form/invoice/pricelist for the number of Subscription Users that Company selects (“Subscription Fee”). Except as otherwise specified herein or in an quotation/order form/invoice/pricelist (i) Subscription Fees are quoted and payable in United States dollars (ii) Subscription Fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and Subscription Fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the initial subscription contract period or relevant subscription term stated on the quotation/order form/invoice/pricelist. User Subscription Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. Payment for the Subscription Fee shall be due and payable as set forth on FocalScope’s or Associate Company’s quotation/order form/invoice/pricelist. Company will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon FocalScope’s or Associate Company net income.

 

2.3 Additional Subscription Users Fee.

During any Term of this Agreement, Company shall pay quarterly or yearly to FocalScope or Associate Company a fee for any subscriptions for Additional Subscription Users as set forth in FocalScope’s quotation/order form/invoice/pricelist . The Additional Subscription User Fee shall be assessed at the then current rate, and shall be due and payable as set forth in FocalScope’s quotation/order form/invoice/pricelist . If invoiced by FocalScope or Associate Company, payments for such invoices are due as per invoice.

 

2.4 Records Retention.

Company shall maintain accurate records necessary to verify the number of Subscription Users. Upon FocalScope’s or Associate Company’s written request, Company shall provide FocalScope with such records within ten (10) days. If Company has more Subscription Users than Company has paid for, Company shall immediately pay FocalScope or Associate Company the applicable Additional Subscription User Fee in addition to any costs incurred by FocalScope or Associate Company associated with reviewing such records.

 

2.5 Termination of users  

Company can reduce number of users as per the terms specified on FocalScope’s or Associate Company’s quotation/order form/invoice/pricelist for the number of Subscription Users that Company selects (“Subscription Fee”). Users paid in advance are non-refundable. Reduction of users must be carried out by submitting an email to FocalScope. The termination of users will only be completed upon new license key installation.

 

3.0 Confidentiality

Company and FocalScope agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”) for a period of two (2) years after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information or the open source version of the FocalScope software licensed under the FocalScope Public License. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.

 

4.0 Infringement and Disclaimer of Warranty

 

4.1 Infringement.

During any term of this Agreement, if any portion of the Software (except for third party software) is held by a court of competent jurisdiction to infringe any third party intellectual property rights and Company incurs a liability or expense as a result of such holding, then Company’s sole remedy shall be, and FocalScope will, at its option: (i) obtain the right for Company to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component, or (iv) refund all of Company’s money paid under this Agreement during the prior twelve (12) months and all of Company’s rights and licenses under this Agreement shall automatically terminate.

 

4.2 As Is/Disclaimer of Warranty.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE AS PROVIDED BY FOCALSCOPE OR ASSOCIATED COMPANY IS PROVIDED AND LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. FOCALSCOPE OR ASSOCIATE COMPANY DOES NOT WARRANT OR GUARANTEE THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

 

5.0 Limitation of Liability

 

5.1 Force Majeure.

Except for the payment of fees, neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control.

 

5.2 Disclaimer of Consequential Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FOCALSCOPE OR ASSOCIATE COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

 

5.3 Limitation of All Damages.

IN NO EVENT SHALL FOCALSCOPE’S OR ASSOCIATE COMPANY’S LIABILITY HEREUNDER FOR CLAIMS IN THE AGGREGATE, EXCEED THE AMOUNT THAT COMPANY PAID TO FOCALSCOPE OR ASSOCIATE COMPANY UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.

 

5.4 Failure of Essential Purpose.

The limitations set forth in this Section shall apply notwithstanding any failure of essential purpose of this Agreement or any limited remedy hereunder.

 

6.0 Term and Termination and updates

The initial term shall commence on the Effective Date of this Agreement and shall continue for a period of one (1) year unless a different term is specified by the parties at the time of purchase (the “Subscription Period”). Thereafter, the Agreement shall renew at the then-current Subscription Fees and Additional Subscription User Fees set forth at www.FocalScope.com for successive terms of one (3) months, unless either party gives written notice to the other of its intention not to renew at least three (3) months prior to the end of a term. Company shall remain obligated for all fees through the date of termination. Either party may terminate this Agreement prior to the end of a term if the other party materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty days following written notice of the breach. Company’s obligation to make a payment of any outstanding, unpaid fees and to keep Confidential Information confidential and the terms of Section 1.2 shall survive termination or expiration of this Agreement.

 

New Versions: FocalScope reserves the right to change this Agreement at any time by publishing the revised Agreement on the FocalScope Website. The revised Agreement shall become effective within thirty (30) days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the FocalScope Software after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at www.FocalScope.com. FocalScope reserves the right to change any of the Additional Terms from time to time and such changes shall become effective either within thirty (30) days of publication of the revised version on the FocalScope Website (unless You expressly accept the revised terms earlier by clicking on the accept button if this option is made available), or within the timeframe set out in the applicable terms if different. FocalScope reserves the right to rewoke the license with a 6 months notice period in the event company get acquired by another company.

 

7.0 Compliance with Licenses.

Company agrees that, in addition to any license compliance checking performed by the Software, FocalScope or its authorized representative have the right, no more than once every nine (9) months, upon seven (7) business days’ prior notice to Customer, to inspect Customer’s records, systems, and facilities to verify that its use of any and all FocalScope software or service is in conformity with its valid licenses from FocalScope. Additionally, Customer shall provide FocalScope with all records and information requested by FocalScope in order to verify that its use of any and all FocalScope software is in conformity with its valid licenses from FocalScope within thirty (30) days of FocalScope’s request. However, if an audit report prepared by FocalScope identifies that Company is out of compliance with the license terms of this Agreement, Company agrees to and is required to purchase the additional licenses on a backdated basis. Additionally any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also be assessed.

 

8.0 Government Users.

The Software under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.

 

9.0 General

Company agrees and certifies that neither the Software nor any other technical data received from FocalScope or Associate Company, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which Company rightfully obtained the Software. Except as expressly provided herein, Company may not assign its rights or delegate its obligations under this Agreement, without the prior written consent of FocalScope.

 

This Agreement shall be governed by and construed in accordance with the laws of Republic of Singapore, excluding the Convention on Contracts for the International Sale of Goods and that body of law known as conflicts of laws. Any suit hereunder will be brought in courts in Singapore and Company hereby submits to the personal jurisdiction thereof. The English-language version of this Agreement controls when interpreting this Agreement. Company consents to the enforcement of any judgment rendered in the Singapore in any action between Company and FocalScope. Any and all defenses concerning the validity and enforceability of the judgment shall be deemed waived unless first raised in a court of competent jurisdiction in the Singapore.

 

The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. This Agreement, and the documents referenced in this Agreement, constitutes the entire agreement between Company and FocalScope relating to its subject matter and all terms herein and supercedes all prior or contemporaneous agreements or understandings. This Agreement may be modified or changed only in writing by authorized representatives of Company and FocalScope. Notices hereunder shall be in writing and in the form of an email and addressed to Company at the address provided when purchasing this subscription or FocalScope. Email contact information to be found on FocalScope website.