Updated Dec 14 2018
Focals Software License Agreement
Thanks for your interest in Focals™ product and software! We are pleased to provide you with the Focals™ Connect software application for use in conjunction with the Focals™ product (referred to as the “Software”). All use of Software is subject to these Software license terms (referred to as this “Agreement”), unless you have executed a separate contract with the Company, or unless a different set of Software license terms have been provided to you with the Software, in which case, that agreement or those terms will apply to your use of the Software.
The Software is licensed to you under this Agreement, which is a legally binding contract between you and the Company. By obtaining and using Software, you are agreeing to adhere to and be bound by this Agreement, and to use the Software in the manner described in the Software user documentation, and you are also signifying that you can legally be bound by this Agreement. If you are using the Software on behalf of a third party, like your employer, you are also agreeing to this Agreement on their behalf and you must have the authority to bind them to this Agreement. If you do not or cannot agree, then we do not permit you to use, and you must not use, the Software in any way.
THE BOTTOM LINE: We like to allow our users to use our Software without a lot of restrictions (except the ones in this Agreement and in the user documentation, which we believe are moderate and reasonable), which is why, in exchange for this permissiveness, all use of the Software is at your own risk, which includes you accepting liability for anything arising from your use of Software. We will only be responsible for issues relating to the Software that are wholly within our control, and then only to the limited extent that the law says that we must be responsible.
THE DETAILS (NUMBERED SUMMARY HEADINGS PROVIDED FOR CONVENIENCE ONLY):
1. You and the Company are entering into this Agreement.
1.1 The parties to this Agreement are you, on behalf of yourself as an individual and/or as a representative of an employer, company or other third party entity (being the party for whose benefit Software is being used), and North Inc., an Ontario corporation with principal place of business at 27 Gaukel Street, Kitchener ON, N2G 1Y6 (referred to as the “Company”).
2. This is a license Agreement allowing you to use the Software.
2.1 This is a software license Agreement for the Software (meaning the system files, redistributables, libraries, tools, APIs, sample code, documentation, and other software materials, as well as any updates to the foregoing, which are made available to you by the Company in connection with this agreement) for use in conjunction exclusively with the Focals™ product. Any use of the Software other than with the Focals™ product is strictly prohibited
3. You can use the Software as long as you comply with this Agreement, all applicable laws, do not damage us or the Software in any way, and use the Software the way we have said it is intended to be used.
3.1 Subject to the terms of this Agreement, the Company grants you a limited, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software solely in connection with your use of a purchased Focals™ product, in the manner described in the user documentation.
3.2 You agree that your use of Software will comply with: (a) this Agreement, and (b) any applicable laws, regulations or other mandatory requirements applicable to you and/or the Software (including any laws that regulate the export of data or software).
3.3 Except to the extent permitted by law where you reside or as required by applicable third party licenses, you may not: (a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile, convert into human readable form or create any derivative works based upon the Software or any part of the Software, (b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software to any third party on a temporary or permanent basis, (c) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software , (d) copy any materials accompanying any portion of the Software unless specifically authorized in writing to do so by the Company or (e) authorize or permit any other party engaging in the activities set forth in (a), (b) (c) or (d) above, or attempting to do so. You agree to treat the Software as confidential and to not disclose it or make it available to third parties. You agree that you will not engage in any illicit or illegal activity with the Software, including any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party, including the Company.
3.4 The Company reserves the right to discontinue, change or remove features, or change the form and nature of the Software at any time without notice. Future versions of the Software may be incompatible with software applications used with previous versions of Software. This Agreement may also be modified by the Company in future versions of the Software, and you are responsible for ensuring that you and your use of the Software are in compliance with the then-current version.
4. Parts of the Software are owed by third parties (i.e., not the Company and not you), so when you use the Software, you need to comply with their license Agreements as well.
4.1 The Software may include components, libraries or resources that are owned by third parties and that have been licensed to the Company. Your use of these third party elements may be subject to the third party software licenses (including but not limited to an open source software license) and not this Agreement. Such licenses may be found appended at the following link: www.bynorth.com/legal/3rd-party-licenses.
5. We are providing the Software without any warranties, and you are accepting all risk in using the Software. We have no liability to you for any damages relating to your use of the Software.
5.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM THE COMPANY. THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE SOFTWARE PROVIDED HEREUNDER. THE COMPANY SPECIFICALLY DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. In particular, you acknowledge that the Company does not warrant or recommend the Focals™ product for use in any application for which distraction, a failure or fault may result in death, personal injury or damage to property.
5.2 YOUR USE OF THE SOFTWARE AND ANY MATERIAL PRODUCED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY PERSON OR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
5.3 Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions. To the extent permitted by law, any implied warranties or conditions relating to the Software, to the extent that they cannot be excluded as set out above, are limited to thirty (30) days from the date that you first download the Software.
5.4 The only type of damages that can be recovered against the Company arising from or related to this agreement (including without limitation in relation to the Focals™ product, the Software and your use under this Agreement), will be your direct damages, if any, to the extent arising from gross negligence of or wilful misconduct by the Company. In no event will the aggregate liability of the Company exceed the amount paid by you for the portion of the Software that gave rise to the claim. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER, TO YOU OR TO ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, COMPUTER OR MOBILE DEVICE FAILURE, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY USE OF THE SOFTWARE OR THE Focals™ PRODUCT, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT), WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Unless you opt-out, we may automatically collect certain information from your use of the Software to help us improve our products and services.
7. When you are connected to the internet, the Software may automatically check for and notify you of the availability of updates for the Software and/or for the firmware of your Focals™ product.
7.1 In order to continually improve the performance of the Software and/or the Focals™ product, the Company may make updates to the Software and/or to the firmware on-board the Focals™ product. When an internet connection is available and the Software is running, the Software may automatically check for such updates and notify you of the availability of any new update. Depending on the Software and/or the version of the Software, the Software may either directly download any such updates you select or provide you with a link to a website where such updates may be downloaded.
8. As part of your acceptance of risks under this Agreement, you bear full responsibility for any claims made against us due to your acts or omissions.
8.1 You agree to indemnify, defend and hold harmless the Company, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your access, use or misuse of the Software and/or the Focals™ product, (b) any breach of this Agreement by you, or (c) your violation of any third-party rights or any applicable laws. The Company reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with the Company, at your expense, in asserting any available defences.
9. This Agreement will continue to apply until terminated by either you or the Company, but termination is not the only option available to the Company if you breach this Agreement.
9.1 If you want to terminate this Agreement, you may do so by ceasing your use of the Software and uninstalling if from any devices you control. The Company may, at any time, terminate this Agreement with you if: (A) you have breached any provision of this agreement, (B) the Company is required to do so by law, (C) the Company decides to no longer make available the Software or certain parts of the Software to users in the country in which you are resident or from which you use the Software, or (D) the provision of the Software to you by the Company is, in the Company's sole discretion, no longer commercially viable. Upon termination of this Agreement, you will cease all use of the Software and destroy and/or permanently delete all copies of the Software in your possession.
9.2 Nothing herein will be deemed to be a substitution for any other rights and remedies that the Company may have in law or equity (including injunctive relief, where applicable), and the Company will have no liability to you arising from the Company terminating this Agreement in accordance with this Section of the terms. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, will do so.
10. This section explains how this Agreement will be interpreted and enforced.
10.1 This Agreement constitutes the whole legal Agreement between the parties governing your use of the Software and completely replaces any prior Agreement(s) between the parties in relation to Software. This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in full force and effect. You agree that if the Company does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which the Company has the benefit of under any applicable law), this will not be taken to be a waiver of any of the Company’s rights and that those rights or remedies will still be available to the Company. The rights granted in this Agreement may not be assigned or transferred by either party without the prior written approval of the other party. Neither party will be permitted to delegate their responsibilities or obligations under this Agreement without the prior written approval of the other party. It is the express will of the parties that these Terms and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
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