End User License Agreement
This END USER LICENSE AGREEMENT (“Agreement”) is a legal agreement between Performance Culture, Inc., a North Carolina corporation (“Licensor”), and the individual or entity subscribing to and licensing the (“Licensee”, “You” or “Your”) Performance Culture System. You are in the process of accessing the Performance Management System. If the System is an upgrade or renewal of a Licensor product licensed to you previously, by accepting this Agreement, you agree that you may use the upgraded or renewed System only in accordance with this Agreement, notwithstanding the terms of any end user license agreement You have previously entered into with Licensor. The Performance Management Web-based Software is licensed, not sold, and is protected by copyright laws and treaties. Your license to use the System is subject to these rights and subject to this Agreement.
BY PURCHASING A PERFORMANCE CULTURE SUBSCRIPTION THROUGH ADP AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY THIS TERMS OF SERVICE (THIS “AGREEMENT”).
BY USING THE SYSTEM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THIS AGREEMENT’S WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, EXIT NOW AND DO NOT ACCESS AND USE THE SYSTEM.
Ownership of the System. All content included in the System or on the Performance Culture website, including without limitation text, graphics, logos, images, software, etc., is the sole and exclusive property of the Licensor, and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Licensor has not transferred title in the System to you. As between you and Performance Culture, you retain sole ownership of your data.
Limited Nonexclusive License. Subject to the limitations set forth herein and receipt by Licensor of all applicable subscription fees, Licensor grants you a personal, nonexclusive license to use the System for an Initial Term of one (1) month from the date of acceptance of this Agreement and, upon your payment of all required renewal subscription fees (which fees may be changed by Licensor from time to time before the start of any renewal period). The term will automatically renew for subsequent Renewal Terms of one (1) month each unless either party gives the other party at least thirty (30) days’ written notice of termination or has terminated this Agreement. You may not rent, lease or sublicense or otherwise transfer your rights to use the System. You agree that you will not directly or indirectly, export or re-export the System (or any portions thereof) to any other country.
You may not reverse engineer, decompile, or disassemble the System. In addition, you may not, directly or indirectly, alter the System’s programming code in any fashion. You shall not provide or otherwise make available the System, including documentation, in any form to any other person without obtaining the prior written consent of Licensor.
Free Trial / Review Template User. If you register as a Review Template User, you are not required to pay the monthly fee until you exceed 10 Performance Review Records. Free Trial Accounts last 14 days and can be canceled by Performance Culture anytime after the 14th day. You have the option to upgrade your account as a subscribed User to maintain access to the Performance Culture System once you’ve exceeded 10 Performance Review records (See Fees, Monthly Bill Option or Fees, Annual Billing Option below). If you do not upgrade your membership within 5 days after exceeding the Performance Review Record limit, your access to the Performance Culture System will be terminated.
Fees, Monthly Billing Option. You agree to the Initial Term Subscription Fee required for your pricing tier as disclosed in the Licensor’s ADP Marketplace Listing as of the date of your initial subscription. The Initial Term is one (1) month from the date of your payment of the Initial Term Subscription Fee. Any renewal fees for future terms (which may be changed at the sole discretion of Licensor) are payable the next billing cycle. Billing cycle is done on a monthly basis. Licensor may also increase the subscription fee during the Initial Term or any Renewal Term if you add additional active employees that result in your moving to a higher pricing tier. The failure to pay any such increased fees when due may result in the immediate suspension of your account and the disabling of your access to the System, and disabling your access to the System will also disable your ability to access other third-party software programs through our website (although you would still be able to access such third party programs from the providers’ websites).
Fees, Annual Billing Option. You agree to the Initial Term Subscription Fee required for your pricing tier as disclosed in the Licensor’s ADP Marketplace Listing as of the date of your initial subscription. The Initial Term is one (1) year from the date of your payment of the Initial Term Subscription Fee. Any renewal fees for future terms (which may be changed at the sole discretion of Licensor) are payable the next billing cycle. Billing cycle is done on an annual basis. Licensor may also increase the Subscription Fee during the Initial Term or any Renewal Term if you add additional active employees. During the initial term, the increased fee will be based on when the additional employees were added, and pursuant to the pricing tier as disclosed in the Licensor’s website as of the date of your initial subscription. The increased fee will be invoiced via email within 30 days of the end of the Initial or Renewal Term and payable within 15 days. The failure to pay any such increased fees when due may result in the immediate suspension of your account and the disabling of your access to the System, and disabling your access to the System will also disable your ability to access other third-party software programs through our website (although you would still be able to access such third-party programs from the providers’ websites).
Support and Training. Licensor will provide training either directly or through its agents via webinar or teleconference during the Initial Term. Any additional or on-site training you request will be provided at then-current rates. If you request any System modifications that are not planned upgrades, and if Licensor agrees to make any such modifications, the modifications will be at Your expense.
Technical Support. Licensor provides both telephone and email based support of its System and its related website. A telephone number is provided to you for such support as is an email address (provided separately).
Limited Warranty and DISCLAIMER OF ALL OTHER WARRANTIES. Licensor represents that the System will materially perform as described on the Performance Culture website, as may be revised from to time.
THE SYSTEM and SUPPORT SERVICES ARE LICENSED AND PROVIDED TO YOU ON AN “AS IS” BASIS EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE AND, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY WITH RESPECT TO THE SYSTEM AND ANY SUPPORT SERVICES PROVIDED BY THE LICENSOR, AS WELL AS FOR ANY OTHER PRODUCTS OR SERVICES ACCESSED THROUGH THIS WEBSITE.
Limitation of Liability and Exclusion of Consequential Damages. The cumulative liability of Licensor to you for all claims relating to this Agreement shall not exceed the total amount of all subscription and other fees paid by you to Licensor during the twelve (12) month time period immediately preceding the date on which you assert any claim against the Licensor.
IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR ANY OF THEIR OWNERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, OR VENDORS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY WAY CONNECTED WITH YOUR USE OF THE SYSTEM, EVEN IF LICENSOR HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Force Majeure. Licensor shall not be liable for failing to perform under this Agreement because of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider or any other third party to perform, fire, an act of terrorism, natural disaster or war. This provision also applies in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.
Security. You are responsible for the confidentiality of your account information and password and agree to accept responsibility for all activities that occur using your password to access your account.
Prohibited Conduct. In your use of the System, You may not: (i) infringe, violate, or interfere with any patent, trademark, trade secret, copyright, right of publicity or any other right of any party; (ii) violate any law, rule or regulation, including, without limitation, U.S. export control laws; (iii) interfere with or damage any associated online content of Licensor; or (iv) assist or encourage any third party in engaging in any activity prohibited by this Agreement.
Indemnification. You will defend, indemnify and hold Licensor and its affiliates, and its and their employees, representatives, agents, attorneys, directors, officers, managers, shareholders, suppliers and licensors (the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against an Indemnified Parties related to your alleged breach of this Agreement. If you do not agree to assume the defense of a Claim, we may control the disposition of the Claim at your sole cost and expense. However, you may not settle, compromise or in any other manner dispose of any Claim without our written consent.
Termination. If your subscription terminates or expires for any reason, your account shall be immediately disabled and your access to the System will be unavailable. Licensor may refuse service, remove/edit content, refuse orders, and/or terminate any subscription for any reason upon ninety (90) days’ notice. You may terminate your subscription at any time. If Licensor terminates the current term of your subscription without cause or you terminate the current term of your subscription, you can request Licensor to send you the data in an exportable csv file.
If the Licensor terminates your account without cause and the Licensee has paid for an annual subscription, the Licensor will refund the annual subscription pro-rata (i.e., if the annual subscription expires in 6 months, 50% of the annual subscription will be refunded).
If the Licensee has paid for an annual subscription and terminates the account because the Licensor breaches the User Agreement, the Licensor will refund the annual subscription pro-rata (i.e., if the annual subscription expires in 6 months, 50% of the annual subscription will be refunded).
Notices. All notices or other communications required to be given to Licensor shall be in writing and shall be delivered either personally or by U. S. mail, certified, return receipt requested, postage prepaid, and addressed as in the “contact information” section of the Licensor’s website for the System. Notices to you may be given via messages to the email address you provide to Licensor. Notices delivered personally or by email shall be effective upon delivery and notices delivered by regular mail shall be effective upon the date of their receipt by the party to whom they are addressed.
Governing Law and Dispute Resolution. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of North Carolina, without regard to conflict of laws principles. The exclusive jurisdiction and venue for any action brought related to or arising out of the Agreement shall be limited to the federal or state courts in the state of North Carolina and both parties waive objections to these jurisdictions. Service of process may be served on any party to any such proceeding anywhere in the world. Claims must be brought within one (1) year of the accrual of the claim. In addition to the other remedies available to Licensor you agree to pay the costs and reasonable professional and attorney fees incurred by Licensor in enforcing any term or provision of this Agreement. If you initiate litigation against the Licensor, the prevailing party shall be entitled to reimbursement of its costs and attorneys’ fees from the other party.
Entire Agreement and Modifications. You expressly acknowledge that you have not relied on any oral or written representations or statements that are not contained in this Agreement. This Agreement constitutes the entire agreement between the parties hereto and, except for any written agreement related to the System that is signed by both you and the Licensor, this Agreement supersedes all prior and contemporaneous agreements and understandings between the parties regarding this System. Licensor may modify the terms of this Agreement from time to time and you may accept the modified terms electronically or otherwise, including without limitation by paying the annual subscription fee applicable to any Renewal Term which will serve your acceptance of the then-current version of this Agreement.
Assignment. This Agreement is binding upon each party and its successors and permitted assigns. Licensor may assign this Agreement upon notice to you, but You may not assign the Agreement and/or your subscription to use the System to any other person or entity without the written consent of the Licensor.
Severability. The provisions of this Agreement are intended to be severable. If any provision of this Agreement is held invalid or unenforceable in whole or in part in any applicable jurisdiction, the remaining provisions remain unaffected.
Waivers. A waiver by either party of its rights under this Agreement must be in a signed writing, and the non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such.