End user agreement for PostureMinder Professional Edition
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: This licence agreement (Licence) is a legal agreement between the company or individual whose name and address is set out in the Schedule (Licensee or you) and PostureMinder Ltd, registered in England and Wales, company number 5512433 (PostureMinder or we) for this PostureMinder software product (Software), which includes computer software, the data supplied with it, the associated media, printed materials and electronic documentation (Documentation).
NOTICE TO USER: THIS LICENCE RELATES TO ALL USERS WHETHER YOU ARE AN INDIVIDUAL CONSUMER OR A CORPORATE CUSTOMER. PLEASE READ THIS LICENCE CAREFULLY BEFORE USING THE SOFTWARE. BY OPENING THE POSTUREMINDER PACKAGE OR INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS LICENCE WHICH WILL BIND YOU AND, IF APPLICABLE, YOUR SUB-LICENSEES AND/OR YOUR EMPLOYEES. YOU AGREE THAT THIS LICENCE IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS LICENCE IS ENFORCEABLE AGAINST YOU.
DISCLAIMER: POSTUREMINDER IS INTENDED SOLELY FOR USE AS A TOOL TO ASSIST YOU TO AVOID POOR POSTURES AND WORKING HABITS. FOLLOWING THE ADVICE CONTAINED WITHIN POSTUREMINDER IN NO WAY GUARANTEES THAT YOU WILL NOT DEVELOP A HEALTH DISORDER IN THE FUTURE, OR THAT YOU WILL RECOVER FROM AN EXISTING HEALTH DISORDER. POSTUREMINDER IS NOT GUARANTEED TO DETECT ALL TYPES OF POOR POSTURE AT ALL TIMES, AND THE LACK OF POSTURE REMINDERS SHOULD NOT BE TAKEN AS IMPLYING THAT YOU ARE SITTING IN A GOOD POSTURE. YOUR RISK OF INJURY MAY BE AFFECTED BY THE DESIGN AND STATE OF REPAIR OF YOUR CHAIR, DESK, WORKSTATION, KEYBOARD, MOUSE OR OTHER POINTING DEVICE, BY YOUR WORKING ENVIRONMENT AND LIGHTING CONDITIONS, AND BY YOUR OWN POSTURE, WORKING HABITS, TIME WORKED WITHOUT REST BREAKS, TYPE OF WORK, ACTIVITIES OUTSIDE THE WORKPLACE, AND INDIVIDUAL PHYSIOLOGY. POSTUREMINDER SHOULD IN NO WAY BE CONSIDERED A SUBSTITUTE FOR PERSONAL AWARENESS OF YOUR POSTURE, OR FOR TREATMENT BY A QUALIFIED PHYSICIAN OR ADVICE FROM A QUALIFIED OCCUPATIONAL HEALTH ADVISER OR ERGONOMIST. IF YOU HAVE A PRE-EXISTING MEDICAL CONDITION, PLEASE CONSULT YOUR PHYSICIAN OR A QUALIFIED PHYSIOTHERAPIST OR ERGONOMIST PRIOR TO USING THIS PRODUCT.
IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENCE OR YOU DO NOT ACCEPT THE TERMS OF THE ABOVE DISCLAIMER, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLING THE SOFTWARE AND RETURN THE MEDIUM ON WHICH THE SOFTWARE IS STORED AND ALL ACCOMPANYING DOCUMENTATION TO THE PLACE WHERE YOU OBTAINED IT AND YOUR MONEY WILL BE REFUNDED LESS TRANSACTION COSTS.
1.2 "Computer" means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
1.3 "Internal Network" means a private, proprietary network resource accessible only by your employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include the Internet or any other network community open to the public, including but not limited to membership or subscription driven groups, associations and similar organizations.
1.4 "Permitted Number" means one (1) unless otherwise agreed in writing.
1.5 "Software" means (a) all of the information with which this agreement is provided, including but not limited to (i) PostureMinder or third party software files and other computer information; (ii) related explanatory written materials and files ("Documentation"); and (b) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by PostureMinder at any time, to the extent not provided under a separate agreement (collectively, "Updates").
2. Grant And Scope Of Licence:
2.1 The Software accompanying this Licence, whether on CD, in read-only memory or on any other media, and related documentation, is licensed to you by PostureMinder. As long as you obtained the Product from PostureMinder or one of its authorised licensees and as long as you comply with the terms of this Licence, PostureMinder grants you a non-exclusive license to use the Software in the manner and for the purposes described in the Documentation, as further set forth below. You may not sub-license your rights without PostureMinder's prior written consent and, for the avoidance of doubt, any such consent shall be granted on the condition that your sub-licensees abide by the terms set out in this Licence.
2.2 You may install (and, where applicable, permit your sub-licensees to install) and use one copy of the Software, either (as agreed between the parties):
2.2.1 on up to the Permitted Number of compatible Computers; or
2.2.2 on the Permitted Number of Computer file server(s) within your Internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of other Computers within the same Internal Network; or
2.2.3 on the Permitted Number of Computer file server(s) within your Internal Network for the purpose of using the Software through commands, data or instructions (e.g., scripts) from another Computer within the same Internal Network, provided that the total number of concurrent users that are permitted to use the Software on such Computer file server(s) does not exceed the Permitted Number.
No other network use is permitted. More than one person may use the Software on a computer on which it is installed or accessible, but the Software may not be installed, used or run on more than the Permitted Number of Computers at any time.
2.3 Backup Copy. You may make a reasonable number of copies of the Software for back-up purposes only, provided that this is necessary for the activities permitted by clauses 2.1 and 2.2;
2.4 Use of Documentation. You may use any Documentation in support of the use permitted under clauses 2.1 and 2.2 and make such copies of the Documentation as are reasonably necessary for its lawful use.
2.5 Individual Licensee's Portable or Home Computer Use. Provided that the Licensee is an individual and is the primary user of the Software, the Licensee may install a second copy of the Software for their own exclusive use on either a portable Computer or a Computer located at their home, provided that the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.
3. Intellectual Property Ownership:
3.1 You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to PostureMinder, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
3.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
3.3 The Software and any authorised copies that you make are the intellectual property of and are owned by PostureMinder. The structure, organization and code of the Software are the valuable trade secrets and confidential information of PostureMinder. You may not under any circumstances attempt to decompile or reverse engineer the Software. The Software is protected by law, including but not limited to the copyright laws of the United Kingdom and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by PostureMinder.
4. Licensee's Undertakings:
4.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
4.1.1 not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
4.1.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation otherwise than as expressly permitted by this Licence;
4.1.3 not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs and in particular, you may not modify the Software by adding any code to collect, store or transmit any images, work-rate, work activity or break information about any user of the Software;
4.1.4 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
a) is used only for the purpose of achieving inter-operability of the Software with another software program;
b) is not disclosed or communicated without PostureMinder's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
c) is not used to create any software which is substantially similar to the Software;
4.1.5 to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
4.1.6 to control use of the Software and, where applicable, supervise and ensure that your sub-licensees, employees and representatives use the Software in accordance with the terms of this Licence;
4.1.7 to include the copyright notice of PostureMinder on all entire and partial copies of the Software in any form; and
4.1.8 not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person (other than, where applicable, your authorised sub-licensees and your employees) without prior written consent from PostureMinder.
4.2 You must permit PostureMinder and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.
4.3 No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product on Computers as permitted by clause 2. You are not required to use all component parts of the Software, but you may not unbundle the component parts of the Software for use on different Computers. You may not unbundle or repackage the Software for distribution, transfer or resale.
5.1 PostureMinder may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so.
5.2 You may terminate this agreement at any time by destroying every copy of the Software in your possession or control together with all related documentation in your possession or control.
5.3 Upon termination for any reason:
5.3.1 all rights granted to you under this Licence shall cease;
5.3.2 you must cease all activities authorised by this Licence;
5.3.3 you must immediately pay to PostureMinder any sums due to PostureMinder under this Licence; and
5.3.4 you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to PostureMinder (at PostureMinder's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to PostureMinder that you have done so.
6. Disclaimer of Warranty:
6.1 PostureMinder has made every reasonable effort to ensure that the data contained in the Software are accurately represented, that the documentation is complete, and the media is free from defects in materials and workmanship. The Software is provided "as is", without any warranty of any kind, either express or implied, including any warranties of merchantability, fitness for any particular purpose, that the function contained in the Software will meet your requirements, that operation will be uninterrupted or error-free, that defects will be corrected, or of non-infringement of intellectual property. As a result, you assume the entire risk as to the results and performance of using the Software.
6.2 If you are an individual consumer, nothing in this Licence, restricts or modifies any condition, warranty, right or liability arising under the appropriate consumers' legislation in your country of residence and as otherwise permitted by law where to do so is illegal or would render any provision of this agreement void, otherwise all other warranties, conditions and liability of any kind imposed by statute or by rule of law with regard to the Software are hereby excluded.
6.3 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
6.4 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
7. Limitation of Liability:
7.1 Nothing in this Licence shall exclude or in any way limit PostureMinder's liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
7.2 In no event will PostureMinder be liable to you for any loss of profits, lost savings or other incidental, special, indirect or consequential loss or damages arising out of the use of or inability to use the Software, even if PostureMinder has been advised in advance of the possibility of such damages, or for any claim by any other party. In no event will PostureMinder be liable, whether in contract or tort (including negligence) or otherwise for any loss of profit, health, or any commercial damage, including, but not limited to, special, incidental, consequential or other damages resulting from the use or inability to use this software.
7.3 If for any reason PostureMinder is liable in contract, tort (including negligence) or otherwise, that liability shall be limited, at PostureMinder 's election, to: (i) the replacement or the supply of equivalent goods or payment of the cost of replacing the Product; or (ii) the repair of the Product or payment for having the Product repaired; or (iii) a refund of moneys paid by you to PostureMinder.
7.4 You acknowledge and agree that the limitation of liability stated above represents a deliberate allocation of risk. Without this exculpation of liability, the price charged for the Product would necessarily be much higher.
8. Transfer Of Rights And Obligations
8.1 This Licence is binding on you and us and on our respective successors and assigns.
8.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
8.3 PostureMinder may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.
9.1 If PostureMinder fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if PostureMinder fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
9.2 A waiver by PostureMinder of any default shall not constitute a waiver of any subsequent default.
9.3 No waiver by PostureMinder of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
11. Entire Agreement
11.1 This Licence, our terms of conditions of supply and any specifically negotiated terms agreed in writing represent the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
11.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
11.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Licence.
12. Law And Jurisdiction
This Licence is governed by English law. Any dispute arising from, or related to, any term of this Licence shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.