END-USER LICENSE AGREEMENT (EULA)
IMPORTANT-READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AND PERFORMAX INC. FOR THE PERFORMAX SOFTWARE PRODUCT ACCOMPANYING THIS AGREEMENT, WHICH MAY INCLUDE COMPUTER SOFTWARE, ASSOCIATED MEDIA, PRINTED MATERIALS AND ONLINE OR ELECTRONIC DOCUMENTATION (“SOFTWARE”). BEFORE CONTINUING WITH THE INSTALLATION OF THE SOFTWARE, YOU MUST READ, ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT THAT FOLLOWS (“AGREEMENT”). IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT PROCEED WITH THE USE OF PERFORMAX360.
GRANT OF LICENSE. Performax grants you a nonexclusive and limited license to use the Software products and functionalities for which you have paid the applicable fees solely for your internal business purposes and in accordance with the terms and conditions of this Agreement. The Software is licensed, not sold, to you. This license does not apply to any other software program provided with the Software, including promotional software, which is governed by the online software license agreement included with that software. “Performax” is Performax Inc. or one of its subsidiaries.
INSTALLATION AND USE. You may install and use the Software, in the Software as a Service (SaaS) version or On-premise version, only in the configuration and for the number of licenses acquired by you. You may also install non-production copies of the Software as is reasonably necessary for disaster recovery, emergency restart and backup, including, but not limited to making copies for such purposes for use at one or more disaster recovery sites. In order to exercise your rights to the Software under this License Agreement you must activate your copy of the Software in the manner described during the launch sequence. Performax may control the number and type of licenses and the use of the Software by key codes.
LICENSE TYPES AND DEFINITIONS.
3.1. Concurrent Access License (“CAL”). When the Software is licensed on a Concurrent Access basis, the aggregate number of end users accessing the Software at any one time may not exceed the number of CALs you have obtained. CAL(s) are assigned to a particular Deployment, and may not be shared among different Deployments. When using Concurrent Access licenses, you may not utilize a program or system to cache or queue report requests.
3.2. Evaluation License. An Evaluation license may be used only for the number and type of licenses specified and for the period specified on the Software packaging, ordering or shipping documentation. An Evaluation License may only be used for evaluation purposes and may not be used for production purposes. You may not re-sell or otherwise transfer an Evaluation License. Notwithstanding any other provision of this Agreement, Software provided under an Evaluation licenses is provided “AS-IS” without warranty of any kind, express or implied. An Evaluation License may be terminated by Performax at any time.
3.3. Definitions. “Deployment” means a single installation of one of the following Software modules: Core Functions, Support Functions, or Enterprise-Wide assessment products. “Project” means one or more Deployments (a) providing the same or substantially similar reports; (b) utilizing the same or a substantially similar custom application interface; or (c) used with applications consisting of related modules or components.
PRODUCT SPECIFIC USE RIGHTS.
4.1. Functional Assessments. Purchasing an internal functional assessment allows you to leverage the software features and functionalities related to those assessments, including data collection, and reports review.
4.2. Best Practices Knowledgebase. For each assessment, Performax360 provides you access to a best practices knowledgebase, comprising 1000+ critical success factors; 2,000+ key performance indicators; and 25,000+ ideas for action. You are not authorized to copy or sell the content to persons inside or outside your organization.
4.3. ExpertConnect. Users can access the expert connect platform through Performax360, which allows you to gain access to senior external consultants, and hire them for consulting work. Users are not authorized to copy consultant profiles and sell them for profit.
4.4. Collaboration Hub. Users have access to context-specific collaboration hub chatrooms. Assessors, Expert Panel Members, Key Persons Accountable, and Executive Management may access the collaboration hub.
4.5. Advanced Analytics. Users have access to advanced analytics features through the analytics, cognitive, and enterprise packages.
4.6. VoiceDirect. Users may utilize the voice-interactive features of Performax360, as needed.
4.7. Performance Alerts. Executive Management may use the assessment configurator to customize performance alert parameters, and receive positive and negative performance alerts.
4.8. Assessment Configurator. Executive Management may configure assessment administrative features by using the assessment configurator, e.g., company branding, timelines, authority delegation to assessment administrator, mission vision and values, assessment configurator, etc.
4.9. PowerPoint Presentation Generation. Users may generate real-time assessment result reports the PowerPoint presentation format, and edit them as required.
OWNERSHIP. Performax and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. You neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. You agree to use reasonable efforts to prevent and protect the contents of the Software from unauthorized disclosure or use. Performax and/or its suppliers reserve all rights not expressly granted to you. Performax’ suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein.
COPYRIGHT. The Software is copyrighted by Performax and is protected by United States copyright and patent laws and international treaty provisions. You may not copy the Software except: (a) to provide a backup copy; or (b) to install the Software components licensed by you, as set forth in Sections 2 and 3, on to computers as part of executing the Software. Solely with respect to the documentation included with the Software, you may make a reasonable number of copies (either in hardcopy or electronic form), provided that such copies shall be used only by licensed end users in conjunction with their use of the Software and are not republished or distributed to any third party. You must reproduce and include all copyright notices, trademarks or other proprietary legends of Performax and its suppliers on any copy of the Software or documentation made by you. Any and all other copies of the Software made by you are in violation of this License Agreement.
RESTRICTIONS. Except as expressly permitted by this License Agreement you may not: (a) lease, loan, resell, sublicense, or otherwise distribute the Software; (b) use the Software to provide or operate Application Service Provider (ASP), service bureau, marketing, training, outsourcing services, or consulting services, or any other commercial service related to the Software or to develop training materials; (c) modify or translate the Software except as necessary to configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (d) in any way reverse engineer, disassemble or decompile the Software or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (e) sublicense, assign, rent, sell, lease, distribute or otherwise transfer the Software or any of the rights granted by this License Agreement without the express written permission of Performax; (f) use the Software to develop a product which is competitive with any Performax product offerings; (g) use the Software to develop a product that converts the assessment reports to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of Performax; (h) alter, disassemble, decompile, translate, adapt, or reverse-engineer the report file; (info) use unauthorized keycodes to access additional Software functionality or performance; and (j) disclose any Software results to any third party without Performax’ prior written approval. If you wish to develop and/or test an interface to the Software or merge the Software with any other software, you shall inform Performax and Performax, at its option, may provide you with information sufficient to enable interoperability between the Software and such other software or products.
LIMITED WARRANTY AND REMEDY. (a) Performax warrants to you that: for a period of thirty (30) days from the start of the use of the software for the SaaS or on-premise versions, the Software will substantially conform to the functional description set forth in its associated documentation. Any implied warranties on the Software are limited to thirty (30) days from beginning of use, to the extent such warranties cannot be disclaimed under Section 8(c) below. The above warranties specifically exclude defects resulting from accident, abuse, unauthorized repair, modifications, or enhancements, or misapplication. Performax does not warrant that use of the Software will be uninterrupted or error free. Delivery of additional copies of, or revisions or upgrades to, the Software, including releases provided under Support Services, shall not restart or otherwise affect the warranty period.
(b) Your exclusive remedy for breach of the above-stated limited warranty shall be, at Performax’ option, either: correction or replacement of the Software with product(s) which conform to the above-stated limited warranty; or (ii) return of the price paid for the Software and termination of this License Agreement with respect to those copies not in compliance. Such remedy shall be provided to you by Performax only if you give Performax written notice of any breach of the above-stated limited warranty, within thirty (30) days of the beginning or start of the Software use. (c) EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS SECTION 8 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND PERFORMAX AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, OR (III) OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Some states/jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you, and you may have other legal rights that vary from state to state or by jurisdiction.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, in no event will PERFORMAX or its DISTRIBUTORS, SUPPLIERS or AFFILIATES be liable TO you OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR REVENUES, LOSS OR INACCURANCY OF ANY DATA, OR COST OF SUBSTITUTE GOODS, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND EVEN IF PERFORMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PERFORMAX AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO YOU FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE PRODUCT LICENSE FEES PAID BY YOU FOR THE PRODUCT OR THE FEES PAID BY YOU FOR THE SERVICE DIRECTLY CAUSING THE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THIS LICENSE AGREEMENT. Some states/jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation may not apply to you.
SUPPORT SERVICES. If you purchased Support Services, Performax will provide to you product support services for the Software in accordance with Performax then current Support Services terms and conditions. If you purchase Support Services for the Software, you must purchase Support Services for all authorized copies of said Software in your possession.
TERMINATION. This Agreement is effective until terminated. You may terminate this License Agreement at any time by providing Performax with written notice, provided that you have complied with the return and/or destruction policy set forth below. However, you shall receive a refund of your license fee only if this Agreement is terminated in compliance with Section 8 hereof. If you ordered an Evaluation License for the Software that is time disabled, this Agreement will automatically terminate after the Evaluation Period, and you agree not to avoid, or attempt to avoid, any applicable time limitation. This Agreement may be terminated by Performax if: you fail to pay the license fees and other charges set forth at the time of your order; or (ii) you fail to comply with any of the terms and conditions set forth in this Agreement and do not remedy such failure within thirty (30) days after receiving notice thereof. Upon any termination of this Agreement, you agree to: immediately cease all use of the Software, including the use and distribution of any Custom Applications incorporating the Software; and (ii) either return the Software to Performax or destroy same, and certify to Performax, in writing, that all copies and partial copies thereof have been returned or completely destroyed and are no longer being used. Sections 5, 6, 8(c), 9, 11, 12, 13, 14, and 15 shall survive any termination of this License Agreement.
AUDIT. During the term of this Agreement and for three (3) years after termination or expiration, Performax may audit, upon reasonable notice to you and at Performax’ expense, your books and records to determine your compliance with this Agreement. In the event any such audit reveals that you have underpaid Performax by an amount greater than five percent (5%) of the amounts due Performax in the period being audited, or that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as Performax may have, you shall pay or reimburse to Performax the cost of the audit.
GENERAL. Except as otherwise preempted by United States federal law, this Agreement is governed by the laws of the State of California, United States, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement. This Agreement constitutes the entire agreement between you and Performax, and supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may not be modified except by an instrument in writing duly signed by an authorized representative of each of the parties. If you are acquiring the Software on behalf of an entity, you represent and warrant that you have the legal capacity to bind such entity to this Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this License Agreement. In the event you and Performax have executed a mutually agreed upon Master Software License Agreement (“MSLA”) and acquired the Software pursuant to such MSLA, the terms of the MSLA shall govern your use of the Software and the terms of this Agreement shall be superseded by the MSLA. The product name for the Software is a trademark or registered trademark of Performax. Should you have questions concerning this License Agreement, please contact your local Performax sales office or authorized reseller, or write to: Performax, Attn: Contracts Department, 3690 El Camino Real, Palo Alto, CA 94306.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein. Manufacturer is Performax, 3690 El Camino Real, Palo Alto, CA 94306.
EXPORT CONTROLS. You acknowledge that the Software is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
ORDER TERMS. Purchase orders conforming to Performax purchase order requirements may be accepted from qualified companies. All pre-printed terms of any purchase order shall have no effect. Payment terms are net-30 days from date of invoice. FOB Performax facility. Performax specifically disclaims price guarantees of any kind. You are responsible for payment of all applicable sales, use, consumption, VAT, GST, and other taxes and all applicable export and import fees, custom duties and similar charges, excluding taxes based on Performax net income.
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