FOCUS POS SYSTEMS

END USER LICENSE AGREEMENT

 

IMPORTANT – READ CAREFULLY. This End User License Agreement (this "Agreement") is a legal agreement between you, either an individual or a single entity (“Licensee”), and Secret Point of Sale Systems Inc., a Texas corporation doing business as Focus POS Systems (“Focus POS” or the "Licensor") for the software product identified below. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE PRODUCT, AND RETURN THE PRODUCT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.

 

1. Definitions

(a) "Confidential Information" means (a) all nonpublic information of Focus POS, including the Software, and (b) all other proprietary and confidential information regarding Focus POS or the Software in which Focus POS or its suppliers or clients have rights, whether such information is contained in tangible materials or is in the nature of unwritten knowledge. Notwithstanding the foregoing, no information shall be deemed to be Confidential Information if it can be shown by your written documentation that such information: (i) was disclosed to you by a third party without violation of any obligation of confidentiality or (ii) became known to the general public without any violation of an obligation of confidentiality. (b) "Install" means placing the Software on a computer's hard disk, CD-ROM or other secondary storage device and performing necessary setup in order for the Software to function properly. (c) "Software" includes the computer programs and documentation for the Focus POS System and the Enterprise System and any ancillary or utility software. (d) "Use" means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes.

2. Grant of Rights

Focus POS hereby grants you a nonexclusive license to Install and Use the Software on any computer located at your business location in accordance with the terms of your purchase of the Software.

3. License Term

The parties agree that this Agreement is effective when the Software is Installed or Used. Without prejudice of any other rights, Focus POS may cancel and terminate this Agreement if you do not abide by the terms and conditions of this Agreement.

4. Return or Destruction of Software Upon Termination

Upon termination of this Agreement, you must return to Focus POS or destroy the original and all copies of the Software and its component parts and all Confidential Information, including partial copies and modifications. Focus POS or its agents shall have a reasonable opportunity to conduct an inspection of your place of business to verify compliance with this provision.

5. Title to Software

Focus POS, or its third-party licensors, retain all title to and ownership of the Software including any and all enhancements, modifications and updates to the Software, including all intellectual property rights in or appurtenant to the foregoing.

6. Limitation on Reverse Engineering, Modification and Enhancements

You may not disassemble, decompile or otherwise reverse engineer the Software, or make any modifications or enhancements without Focus POS's express written consent.

7. Warranty

THE SOFTWARE IS PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR

IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT.

8. Confidentiality

You acknowledge and agree that the Confidential Information consists of trade secrets and proprietary know-how belonging to Focus POS that is being made available to you in strict confidence. You agree to treat the Confidential Information with at least the same care as you treat your own confidential or proprietary information, but in no event less than a reasonable degree of care. You agree to hold the Confidential Information in strict confidence and to not permit its disclosure to third parties. The restrictions of this Article 8 shall survive the termination or expiration of this Agreement.

9. Arbitration

The parties agree to submit any dispute under this Agreement, including any dispute regarding the arbitrability of this Agreement, to binding arbitration in Boerne, Texas under the commercial arbitration rules of the American Arbitration Association then existing. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

10. Attorney Fees

If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.

11. LIMITATION OF LIABILITY

LICENSOR'S LIABILITY FOR ALL CLAIMS, INCLUDING WITHOUT LIMITATION, ANY CLAIM BROUGHT BY END USER OF ANY KIND (WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE FOR ALL CLAIMS

THE AMOUNT ACTUALLY RECEIVED BY FOCUS POS FOR THE PURCHASE OF THE SOFTWARE IN QUESTION. IN NO EVENT WILL FOCUS POS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL), REGARDLESS OF THE CAUSE OF ACTION, INCLUDING CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

12. General Provisions

(a) Entire Agreement. This Agreement is the sole and entire agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter.

(b) Modifications. Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by an authorized representative of Focus POS.

(c) Applicable law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Texas, without reference to its choice of law rules.

(d) Assignment. The rights under this Agreement shall not be assignable by you without Focus POS's prior written consent.

(e) No Agency. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

(f) Severability. If any term of this Agreement is for any reason held to be illegal or unenforceable, the remaining terms of this Agreement shall continue in full force and effect.

(g) Waiver. No failure or delay in exercising any right, power or privilege by either party shall operate as a waiver of that right, power or privilege or preclude further exercise of that or any other right, power or privilege. 

 

 

License Statement

The Focus System and this manual are licensed to the original purchaser only. Backup copies of the software and this manual may be made. No other copying of The Focus system software or this manual may occur. Failure to comply with this statement voids the license. You agree to destroy all copies of the software and manual if the license is voided.