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IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE ORDERING ANY SOFTWARE FROM THIS WEBSITE:
This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Focus on Sound Ltd. of 1 East Town Square, Kenton, Exeter, EX6 8NH (Focus on Sound Ltd. or we or our) for this Focus on Sound: Instruments / Focus on Sound: Techniques software product (Software), which includes computer software, the data supplied with it, the associated media and online documentation which includes photos, graphics, text, musical scores, sound files, recordings and videos (Documentation).
THIS SOFTWARE REQUIRES CERTAIN COMPATIBLE OPERATING SYSTEMS AND BROWSERS. THESE REQUIREMENTS ARE AVAILABLE FOR YOU TO REVIEW BEFORE YOU BUY THE SOFTWARE BY VISITING www.focusonsound.com/requirements. A DEMONSTRATION VERSION OF THE SOFTWARE IS AVAILABLE TO YOU ON OUR WEBSITE www.focusonsound.com SO THAT YOU CAN CHECK THE SOFTWARE IS COMPATIBLE WITH YOUR COMPUTERS AND OPERATING SYSTEMS BEFORE YOU BUY IT. BY CLICKING ON THE "ACCEPT" BUTTON YOU AGREE THAT YOU HAVE CHECKED THE SOFTWARE IS COMPATIBLE WITH YOUR COMPUTERS AND OPERATING SYSTEMS AND YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU, YOUR EMPLOYEES AND ANYONE ELSE YOU ALLOW TO USE THE SOFTWARE (INCLUDING YOUR PUPILS) (Users). YOU ARE RESPONSIBLE FOR ENSURING THAT ALL USERS WHO ACCESS THE SOFTWARE THROUGH YOU ARE AWARE OF THESE TERMS, AND THAT THEY COMPLY WITH THEM. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE USE NOW. IN THIS CASE THE LICENCE WILL TERMINATE AND YOU MAY NOT ORDER ANY SOFTWARE FROM THIS WEBSITE.
1. GRANT AND SCOPE OF LICENCE
1.1. In consideration of payment by you of the agreed licence fee and you agreeing to abide by the terms of this Licence, Focus on Sound Ltd. hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation in the UK on the terms of this Licence.
1.2. The licence fee grants you a licence to use the Software and the Documentation for the period agreed with you when you place your order which will not be less than 12 months from the date of first installation (or 6 months in the event of a half year subscription). If you wish to make use of the Software and the Documentation after that date, you will be required to obtain a new licence from Focus on Sound Ltd. and renew your licence fee.
1.3. You may:
1.3.1. only use the Software for educational, non-commercial purposes;
1.3.2. only use the Software for use by the number of concurrent Users agreed between you and us; and
1.3.3. only allow Users who are teachers or pupils at the educational establishment which has paid the licence fee to use the Software and the Documentation;
1.3.4. receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by Focus on Sound Ltd. from time to time; and
1.3.5. use any Documentation for educational, non-commercial purposes.
1.4. We will maintain copies of the Software for back-up purposes. These copies will be used to replace any non-functioning code and we will make the Software available on our server as soon as practicable after an error is discovered.
2. Licensee's obligations and undertakings
2.1. The Licensee must nominate an individual who is responsible for managing the use of the Software by the Users (Administrator).
2.2. Different permission levels apply depending on whether the User is a teacher or a pupil and it is the responsibility of the Administrator to ensure that the Users are allocated the appropriate permission levels.
2.3. The Administrator is allocated a password by Focus on Sound Ltd. Teacher Users must create a password, and pupil users must create a user name and password when they first log-on to use the Software. The Licensee undertakes to ensure that the Administrator and the Users treat such information as confidential, and do not disclose it to any third party. Focus on Sound Ltd. has the right to disable any password, at any time, if in our opinion a User has failed to comply with any of the provisions of this Licence.
2.4. Except as expressly set out in this Licence or as permitted by any local law, you undertake:
2.4.1. not to copy any element of the Software or the Documentation;
2.4.2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
2.4.3. 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;
2.4.4. not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing 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:
18.104.22.168. is used only for the purpose of achieving inter-operability of the Software with another software program; and
22.214.171.124. is not unnecessarily disclosed or communicated without Focus on Sound Ltd's prior written consent to any third party; and
126.96.36.199. is not used to create any software which is substantially similar to the Software;
2.4.5. to supervise and control use of the Software and ensure that the Software is used by the Users in accordance with the terms of this Licence;
2.4.6. to replace the current version of the Software with any updated or upgraded version or new release provided by Focus on Sound Ltd. under the terms of this Licence immediately on receipt;
2.4.7. not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the Users without prior written consent from Focus on Sound Ltd.; and
2.4.8. not to use the Software via any communications network or by means of remote access except where your licence plan expressly allows it or we have expressly agreed with you that you can.
2.5. You must permit Focus on Sound Ltd and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises at which the Software or the Documentation is being kept or used, to the computer equipment located there, and to any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.
3. Fair use policy
3.1. The licence fee for the Software has been calculated on the basis that you will make fair use of the Software and the Documentation.
3.2. If Users access too many media files, in particular videos, this will reduce our network capacity and slow down the Software for other users. The Focus on Sound Ltd. fair use policy is therefore designed to make sure that the Software is as fast and reliable as possible for all our users.
3.3. At present, we envisage that any daily use of the Software on each workstation in excess of four hours will have an impact on the speed of the software (Threshold).
3.4. If you exceed the Threshold, we may contact you to discuss the commercial terms which will apply to your ongoing use of the Software. This may include charging you for excessive usage or moving you onto a different licence plan. Focus on Sound Ltd. reserves the right to terminate this Licence in the event that you continue to make excessive usage the Software, in excess of the Thresholds, following the discussion referred to herein. We will only exercise this right in exceptional circumstances.
3.5. Focus on Sound Ltd reserves the right to revise the fair use policy in the future.
4. Intellectual property rights
4.1. You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong or are licensed to Focus on Sound Ltd. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
4.2. Further, you acknowledge 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.
4.3. You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
4.4. You must not use any part of the Software or the Documentation for commercial purposes without obtaining a licence to do so from us or our licensors.
5.1. Focus on Sound Ltd. warrants that:
5.1.1. for a period of 30 days from the date of installation (Warranty Period) the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and that the Documentation correctly describes the operation of the Software in all material respects;
5.1.2. it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice.
5.2. 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.
5.3. You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this Licence.
5.4. If, within the Warranty Period, you notify Focus on Sound Ltd. in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Licence, Focus on Sound Ltd will, at its sole option, either repair or replace the Software or reimburse the price received by Focus on Sound Ltd for the Software, provided that you make available all the information that may be necessary to help Focus on Sound Ltd to remedy the defect or fault, including sufficient information to enable Focus on Sound Ltd to recreate the defect or fault.
6. Licensor's liability
6.1. Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or deliberate personal repudiatory breaches of this agreement.
6.2. Subject to condition 6.1, Focus on Sound Ltd's liability for losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude:
6.2.1. loss of income;
6.2.2. loss of business profits or contracts;
6.2.3. business interruption;
6.2.4. loss of the use of money or anticipated savings;
6.2.5. loss of information;
6.2.6. loss of opportunity, goodwill or reputation;
6.2.7. loss of, damage to or corruption of data; or
6.2.8. any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 6.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of condition 5 or any other claims for direct financial loss that are not excluded by any of categories 6.2.1 to 6.2.8 inclusive of this condition 6.2.
6.3. Subject to condition 6.1, Focus on Sound Ltd's maximum aggregate liability under or in connection with this Licence, whether in contract, tort (including negligence) or otherwise, shall be limited to the licence fee paid by the Licensee.
6.4. Subject to condition 6.1, condition 6.2 and condition 6.3, Focus on Sound Ltd's liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
6.5. We will use all reasonable endeavours to make the Software available without major interruption and materially error free. However, we reserve the right at anytime to suspend your access and/or use of the Software for the purpose of enabling us to carry out maintenance and/or upgrades, to deal with any problem or error or where there is a Force Majeure Event (as defined in condition 11) and we will not be liable to you or to any other person in these circumstances.
6.6. This Licence sets out the full extent of Focus on Sound Ltd's obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Focus on Sound Ltd except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
7. The Database and data protection
7.1. The Software contains a feature which enables Users to progress through the Software and receive a score for the accuracy of answers given to questions. The Users' names, usernames, scores and hidden passwords will be saved in a database held by Focus on Sound Ltd on the Focus on Sound Ltd servers (Database).
7.2. The Database will be password protected and it will only be accessible by the Administrator and/or a teacher with administrative rights. Focus on Sound Ltd will only access the Database to the extent necessary for essential maintenance of the Software or at the Licensee's request and we will not disclose the content of the Database to any third party.
7.3. Focus on Sound Ltd will back up the Database on a regular basis. In the event that data held on the Database is lost or corrupted, Focus on Sound Ltd will contact the Licensee as soon as reasonably possible. Focus on Sound Ltd will endeavour to retrieve whatever data we can and to reinstate the last saved version of the Database. However, the Licensor acknowledges that the last saved version of the Database may not contain the most recent scores and Focus on Sound Ltd shall have no liability or responsibility for any lost or corrupted data held on the Database.
7.4. Focus on Sound Ltd warrants that it has in place appropriate technical and organisational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure of or access to the Database and adequate security measures to ensure that unauthorised persons will not have access to the Database and that any persons it authorises to have access to (including but not limited to its employees) will respect and maintain the confidentiality and security of the Database.
7.5. The Licensee shall ensure that all processing of the data held on the Database shall be carried out by the Licensee at all times in accordance with the Data Protection Act 1998 (“Act”) (as amended from time to time) and that it otherwise conducts itself in accordance with the Act and for the purposes of this clause “processing” shall be interpreted in accordance with that Act.
7.6. The Licensee is responsible for procuring that all Users consent to their names, usernames, hidden passwords and scores being held in the Database. Where an individual User does not give such consent, the Licensee shall ensure that they may not make use of the Software.
8.1. Focus on Sound Ltd may terminate this Licence immediately by written notice to you if:
8.1.1. you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
8.1.2. a petition for a bankruptcy order to be made against you has been presented to the court; or
8.1.3. the Licensee becomes insolvent or unable to pay its debts (within the meaning of section 123 or 268 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.
8.2. Upon termination for any reason:
8.2.1. all rights granted to you under this Licence shall cease;
8.2.2. you must cease all activities authorised by this Licence;
8.2.3. you must immediately pay to Focus on Sound Ltd. any sums due to Focus on Sound Ltd. under this Licence; and
8.2.4. you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to Focus on Sound Ltd (at Focus on Sound Ltd's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to Focus on Sound Ltd that you have done so.
9. Transfer of rights and obligations
9.1. This Licence is binding on you and us, and on our respective successors and assigns.
9.2. 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.
9.3. We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Licence.
All notices given by you to us must be given to Focus on Sound Ltd at 1 East Town Square, Kenton, Exeter EX6 8NH. We may give notice to you at either the e-mail or postal address you provided to us when purchasing the Software. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
11. Events outside our control
11.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by events outside our reasonable control (Force Majeure Event).
11.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
11.2.1. strikes, lock-outs or other industrial action;
11.2.2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
11.2.3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
11.2.4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
11.2.5. impossibility of the use of public or private telecommunications networks;
11.2.6. the acts, decrees, legislation, regulations or restrictions of any government.
11.3. Our performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
12.1. If we fail, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are 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.
12.2. A waiver by us of any default shall not constitute a waiver of any subsequent default.
12.3. No waiver by us 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.
14. Entire agreement
14.1. This Licence and any document expressly referred to in it represents 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.
14.2. 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 be implied from anything said or written in negotiations between us prior to entering into this Licence except as expressly stated in this Licence.
14.3. 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 these terms and conditions.
15. Law and jurisdiction
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.