This document was last modified on May 27th 2014
THE FOCUS POCUS SERVICE (THE “SERVICE”) IS OWNED AND OPERATED BY FOCUS POCUS INC. (“FOCUS POCUS”, “WE” or “US”) AND IS PROVIDED TO YOU AND/OR THE COMPANY YOU REPRESENT (“YOU”) UNDER THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE ( THIS “AGREEMENT”). BY PROIDING YOU CREDIT CARD INFORMATION OR SIGNING A SOFTWARE PROPOSAL DOCUMENT, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE SERVICE. YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AT LEAST 18 YEARS OF AGE AND AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (II) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH BELOW. IF YOU DO NOT AGREE, DO NOT CONTINUE WITH THE ACCEPTANCE PROCESS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND SUCH ENTITY AND (B) REFERENCES TO “YOU” IN THIS AGREEMENT WILL BE DEEMED TO REFER BOTH TO YOU AND SUCH ENTITY.
Focus Pocus hereby represents and warrants that it shall perform its obligations in a professional, workmanlike manner with due care, and that the Services, the Website and all other information, materials and deliverables shall function in accordance with industry standards and specifications.
2. DEFINITION OF SERVICE
For purposes of this Agreement, the term “Service” shall mean all products and services provided to you by FOCUS POCUS, including access to and use of the Focus Pocus application and Focus Pocus website (the “Website”), technical support, email and other features, products and services provided by Focus Pocus (or third party vendors).
3. AUTHORIZED USER, USE, AND RESPONSIBILITIES
3.1 You represent and warrant that the information you supply to us is correct and complete. You understand that Focus Pocus relies on the information you supply and that providing false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account. You shall indemnify and defend Focus Pocus for any harm or damages that result from any provision by you of false or incorrect information. You shall promptly notify Focus Pocus whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).
3.2 You may access and use the Service for your internal business purposes only. You may not use the Service on behalf of any third party except as expressly permitted. You shall be responsible for the use of the Service provided through your account, including any user accounts authorized by you and any secondary accounts, sub-accounts, or users registered to your account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account, or any secondary accounts, with or without your permission. You shall indemnify and defend Focus Pocus for any harm or damages that result based on use of the Service via your account, or any secondary accounts.
3.3 The Service, including all software code underlying any part of the Service, is owned by us or our licensors. In addition we or our licensors also own all information, graphics and content available to you through the Service. You shall not disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly prohibited by applicable statutory law). You shall not resell the Service, use it as a service bureau or otherwise on behalf of a third party, or engage in similar activities that constitute such (commercial or non-commercial), or use it as a virtual data storage center, as determined solely by Focus Pocus.
3.4 The Service is provided from the United States. We make no guarantee about the compliance of the Service with laws of any non-United States jurisdiction. If you are using the Service outside the United States, you are solely responsible for ensuring that this Agreement is in compliance with all laws, rules and regulations applicable to you. In any jurisdiction where this Agreement or the use of the Service is prohibited, you do not have any right to use the Service.
3.5 If you are an individual user, you must be of legal age to form a binding contract. You may not use the Service if you are younger than 13 years old.
3.6 You shall not cause Focus Pocus or any of its authorized service representatives to participate in, or contribute towards, any activity that is illegal under any applicable federal, state or local law, rule or regulation, and you shall indemnify and defend Focus Pocus from and against any harm or damages caused by any illegal activity in which you may engage.
5. AVAILABILITY OF SERVICE
5.1 The Service may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be available to receive the Service.
5.2 Focus Pocus, its suppliers and licensors may, at any time, without notice or liability to you, restrict in whole or in part the use of the Service or limit availability in order to perform maintenance activities and to maintain session control or for any other purpose.
6. TERM AND TERMINATION
This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue until terminated by either party as permitted by this Agreement. Billing for your Service shall apply on a monthly basis.
6.1 Termination of Service.
6.1.1 Subscription Service. Either you or Focus Pocus may terminate this Agreement without cause by giving notice to the other party. Termination shall be effective upon expiration of the period for which you have prepaid Service fees or thirty (30) days after notice of termination, whichever is later. Activation fees and custom programing fees paid at the initiation of your service, if any, and any prepaid Service fees shall not be refundable. In the event of termination by Focus Pocus for any reason, you shall be required to pay the remaining balance of the charges applicable to your Service through the effective date of termination. You acknowledge that any software that you may install as part of the Service may cease to operate, update or function properly after the effective date of termination.
6.1.2 Termination and/or Suspension by Focus Pocus. Focus Pocus, at its sole election may terminate or suspend your Service immediately without notice if, in the sole discretion of Focus Pocus: (a) you are in breach of any of the terms of this Agreement; (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Focus Pocus’s network, or the use of other users; (c) Focus Pocus receives an order from a court to terminate your Service; (d) Focus Pocus for any reason ceases to offer the Service; or (e) you are no longer a Focus Pocus customer.
6.1.3 Terminated Account. Focus Pocus, in its sole discretion, shall have the right refuse to accept your request for Service, renewal or re-subscription following a termination or suspension of your use of the Service at any time.
YOU WILL LOSE ACCESS TO YOUR STORED DATA AND ALL OF YOUR STORED DATA UPON TERMINATION OF YOUR ACCOUNT. UPON TERMINATION, YOU ACKNOWLEDGE AND AGREE THAT FOCUS POCUS SHALL HAVE THE IMMEDIATE RIGHT WITHOUT LIABILITY OF ANY KIND TO DELETE AND PURGE ALL OF YOUR DATA AND INFORMATION THAT WAS STORED BY FOCUS POCUS AND SUCH DATA AND INFORMATION MAY BE UNAVAILABLE TO YOU FOR FUTURE USE AND MAY NOT BE RESTORED IN ANY EVENT.
7. PRICING AND PAYMENT
7.1 Pricing and Fees. Focus Pocus fees and charges for the Service(s) you select are supplied to you during the ordering process and are available on the Website at http://www.focuspocussoftware.com/pricing/ unless otherwise provided for. You agree to pay the charges applicable to your selected Service plan, as well as any applicable taxes and other charges, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Monthly recurring charges shall be billed one month in advance; usage charges, if applicable, shall be billed in arrears, and pre-purchase plans shall be billed in advance, if applicable. Focus Pocus or its agent shall charge your credit card on a monthly basis as set forth during the ordering process. Focus Pocus does not accept debit cards for payment of any charges or fees.
7.2 Discontinuation of Service for Nonpayment. Service to you may be denied or discontinued without notice at any time if your credit card provider denies or discontinues providing credit to you for any reason, or you fail to make payment when due or provide us with a new credit card expiration date before the existing one expires or you fail to provide us with a new credit card expiration date when the existing one expires. If your credit card provider denies or discontinues providing credit, you will be sent a notice of termination of Service and you will have 60 days to request a file containing your data.
7.3 You have the option to change your Service(s) at any time by notifying us, provided that you qualify for and comply with all requirements of that Service.
7.4 Your subscription to the Service(s) shall automatically renew on a monthly basis until Focus Pocus is notified, via fax or email, of your request to cancel service. There are no refunds on partial months or pro-rated cancellation of Service.
8. LIMITATIONS ON USE OF THE SERVICE
8.1 You agree that your use of the Service is your sole responsibility, is solely at your own risk, and is subject to all applicable local, state, national and international laws and regulations.
8.2 You agree that the Internet is not owned, operated or managed by, or in any way affiliated with Focus Pocus and Focus Pocus is not responsible and has no control over the information or materials accessible via the Internet through use of the Service. You further agree that Focus Pocus does not own or control all of the various facilities and communications lines through which service may be provided, nor does Focus Pocus guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by Focus Pocus.
8.3 Focus Pocus recognizes that your data is important and takes industry-standard, commercially reasonable measures to protect your data on the Service. However, you agree that Focus Pocus cannot and does not guarantee or warrant that data will not be lost or corrupted or free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.
8.4 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. Focus Pocus is not liable for invalid destinations, transmission errors, or corruption or security of your data.
9. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
9.1 IN NO EVENT SHALL FOCUS POCUS, ITS OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, SUBSIDIARIES, ATTORNEYS OR AFFILIATES BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA, ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE OR YOUR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF FOCUS POCUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY. THE MAXIMUM CUMULATIVE LIABILITY OF FOCUS POCUS TO YOU UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS PAID BY YOU DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ANY CLAIM.
9.2 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
9.3 Notwithstanding any language to the contrary in this Agreement, the Service is provided to you “AS IS” and “AS AVAILABLE” and without any warranty from FOCUS POCUS of any kind. FOCUS POCUS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, SUITABILITY ACCURACY, SECURITY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO ADVICE, SUPPORT OR INFORMATION DELIVERED BY FOCUS POCUS OR ITS REPRESENTATIVES TO YOU SHALL CREATE ANY WARRANTY.
9.4 FOCUS POCUS DOES NOT WARRANT THAT THE SERVICE PROVIDED BY FOCUS POCUS HEREUNDER SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR SHALL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. FOCUS POCUS SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.
You shall defend, indemnify and hold harmless Focus Pocus from and against all claims, actions, proceedings, liabilities, losses, damages, costs and expenses, including reasonable attorney’s fees, relating to or arising from: (1) your breach of this Agreement; (2) your use of the Service and the use of the Service by any third party through an account registered to you; (3) violation of applicable laws or regulations; (4) your use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet; (5) your negligent acts, errors, or omissions; (6) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, or the Service; or (7) claims for infringement of any intellectual property rights arising from your use of the Service other than in accordance with this Agreement.
11.1 Notices required under this Agreement by you shall be provided to the Focus Pocus reachable via email at info@FocusPocusSoftware.com. Notices by Focus Pocus to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to the address provided by you, as applicable.
11.2 With regard to electronic communications, you and Focus Pocus further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication (“email”), is legally sufficient to verify the sender’s identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
12. GENERAL PROVISIONS
12.1 The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.
12.2 Focus Pocus shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
12.3 You and Focus Pocus agree that the substantive laws of the State of Florida, without reference to its principles of conflicts of laws, shall be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AGREE TO SUBMIT ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT TO FINAL BINDING ARBITRATION IN ACCORDANCE WITH THE THEN-EXISTING COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION, BEFORE A SINGLE ARBITRATOR SELECTED FROM THE INTERNATIONAL ARM OF THE AMERICAN ARBITRATION ASSOCIATION. Except as otherwise required by law, including Florida laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12.4 Focus Pocus’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
12.5 This Agreement and all other policies posted on the Website, which are fully incorporated into this Agreement by reference, constitute the entire agreement between you and Focus Pocus with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
12.6 Focus Pocus reserves the right to modify this Agreement from time to time in its discretion. In the event we do modify this Agreement, the terms of this Section 12.6 shall apply. We will provide notice, either through the Service or via email (to the address we have on file for you), that we have changed this Agreement. Changes will be effective 30 days after the date of such notice, and shall apply after such date (never retroactively). If you do not agree to the changes, you may terminate your account within such 30 day period, in which case the changes will not apply to you. If you decide to terminate your account because you do not agree to changes we made to this Agreement and you have previously paid Service fees beyond such 30 day period, we will refund such Service fees to you. You and we both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address (or failed to update your address) or if there are communications issues not on Focus Pocus’s end that prevent email from reaching you.