EXHIBIT A
SIX DISCIPLINES LICENSE AGREEMENT
THIS LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND SIX DISCIPLINES,
LLC (“SIX DISCIPLINES”) GOVERNING YOUR USE OF ALL SOFTWARE HOSTED BY SIX
DISCIPLINES. SIX DISCIPLINES IS UNWILLING TO LICENSE OR OTHERWISE AUTHORIZE
YOUR USE OF THE SOFTWARE LICENSED HEREIN EXCEPT ON THE TERMS CONTAINED IN
THIS LICENSE AGREEMENT. YOUR USE OF THE SOFTWARE SHALL CONSTITUTE AN
ACCEPTANCE BY YOU OF THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT
WISH TO AGREE TO THE TERMS OF THE LICENSE AGREEMENT, DISCONTINUE ALL USE
OF THE SOFTWARE.
THIS LICENSE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF SIX
DISCIPLINES’ OBLIGATIONS AND RESPONSIBILITIES TO YOU, AS LICENSEE OF THE
SOFTWARE, AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR
OTHER COMMUNICATION BY OR ON BEHALF OF SIX DISCIPLINES RELATING TO THE
SUBJECT.
THIS LICENSE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES (see Section 9),
AN EXCLUSIVE REMEDY (see Section 10), AND LIMITATIONS ON LIABILITIES (see Section
10), ALL OF WHICH FORM AN ESSENTIAL BASIS OF THIS LICENSE AGREEMENT.
1.
Definitions.
"SIX DISCIPLINES Parties" is Six Disciplines, its partners, affiliates, franchisees, service providers,
licensors and/or suppliers.
"SIX DISCIPLINES Services" is the configuration of hardware, network, software, and Internet portal
that Six Disciplines may provide for your use in hosting the Software.
"SIX DISCIPLINES Software" is the proprietary application software hosted by Six Disciplines,
including, without limitation, enhancements, upgrades, new versions and replacements.
"Support Software" is the configuration of software that Six Disciplines provides for your use of the SIX
DISCIPLINES Software, including, without limitation, enhancements, upgrades, new versions and
replacement software.
"Software" is the SIX DISCIPLINES Software and Support Software.
“SIX DISCIPLINES Program Provider” is the local business that you have contracted with to provide the
Six Disciplines integrated system of methodology, technologies and local coaching to enable
businesses to execute strategy more effectively.
2.
License for the SIX DISCIPLINES Services and Software.
a.
In General. Subject to the terms and conditions of this License Agreement, Six
Disciplines agrees to host the Software and provide certain support services. Use of the
Software depends on your compliance with this License Agreement. Subject to the terms
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and conditions of this License Agreement, (i) if you are a SIX DISCIPLINES client,
extent of the use of the Software also depends on the terms of the agreement between you
and your SIX DISCIPLINES Program Provider; (ii) if you are a SIX DISCIPLINES
Partner, use of the Software is limited as prescribed in the Partner Policies.
b.
Software License. Six Disciplines grants to you, during the term of this License
Agreement, for internal purposes only, a non-exclusive, nontransferable license to use the
Software, in object code form only, using the SIX DISCIPLINES Services.
c.
Support Software Licenses. Certain programs contained in the Support Software may be
provided with their own license agreements and are licensed under the terms of the
agreements provided with them.
d.
Hosting of the Software. For the term of, and in accordance with the terms and conditions
of, this License Agreement, Six Disciplines will implement and maintain facilities,
equipment, and programming, collectively making up a host data center (the “SIX
DISCIPLINES Services”), as necessary to provide you access to the Software via the
Internet. You will be responsible for providing your own Internet access and computer
equipment needed to access the SIX DISCIPLINES Services.
e.
Limitation on use of SIX DISCIPLINES Services and Software. You agree:
i.
you are responsible for the evaluation, selection and for the results obtained from
the SIX DISCIPLINES Software;
ii.
you are responsible for complying with all rules and regulations relating to the
SIX DISCIPLINES Services sent to you by email or other electronic means as
they may be amended from time to time;
iii.
to use the SIX DISCIPLINES Services and Software only for processing your
business data and in accordance with the terms and conditions of this License
Agreement;
iv.
not to provide access to the SIX DISCIPLINES Services and/or the Software to
any third party other than authorized named users, and your SIX DISCIPLINES
Program Provider and their assignees, including, without limitation, in any form
by rental, service bureau, hosting, time sharing arrangement, or demonstration of
the Software to any third party;
v.
not to reverse assemble, reverse compile, or otherwise translate any Software;
vi.
not to use the SIX DISCIPLINES Services in any way that is unlawful, or harms
a SIX DISCIPLINES Party or any client of a SIX DISCIPLINES Party, as
determined by Six Disciplines, in its sole discretion;
vii.
not to interrupt, or attempt to interrupt, the operation of the SIX DISCIPLINES
Services in any way;
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viii.
not to restrict, in any way, any other authorized user from using the SIX
DISCIPLINES Services;
ix.
not to attempt to breach the security of the SIX DISCIPLINES Services or the
Software;
x.
not to access or attempt to access data belonging to third parties;
xi.
to ensure that anyone who uses the Software (accessed either locally or remotely)
does so only for your authorized use and complies with the terms of this License
Agreement; and
xii
NOT TO DEMONSTRATE OR SHARE INFORMATION REGARDING
THE SOFTWARE FOR OR WITH ANY PERSON NOT LICENSED TO
USE THE SOFTWARE OR OTHERWISE EXPRESSLY AUTHORIZED
TO ACCESS THE SOFTWARE BY THIS LICENSE AGREEMENT,
INCLUDING ANYONE WHO MAY USE SUCH INFORMATION FOR
COMPETITIVE PURPOSES, AND TO TAKE ALL REASONABLE
MEASURES TO PREVENT ANY EMPLOYEE OR AUTHORIZED USER
FROM DISCLOSING ANY INFORMATION REGARDING THE
SOFTWARE TO ANYONE NOT EXPRESSLY AUTHORIZED BY THIS
LICENSE
AGREEMENT
TO
HAVE
ACCESS
TO
SUCH
INFORMATION.
f.
Updates and Upgrades to Software. Six Disciplines reserves the right to, but shall not
be obligated to, provide error corrections, updates, upgrades and new versions for the
Software.
g.
Facilities. Except as otherwise expressly stated herein, you are responsible for obtaining,
installing, configuring and maintaining all equipment, (including, without limitation,
gateways and firewalls), network, software, wiring, power sources, telephone connections
and/or communications services necessary for inter-connection with SIX DISCIPLINES
Services or otherwise for use in conjunction with the services provided by Six Disciplines
to you ("Facilities"). You are responsible for ensuring that the Facilities are compatible
with Six Disciplines’ requirements, Software and Six Disciplines’ provided services. Six
Disciplines is not responsible for the availability, capacity and/or condition of any
Facilities. You are responsible for operation and configuration of your computer(s) and
network.
h.
Access to SIX DISCIPLINES Services. Six Disciplines reserves the right to deny access
to the SIX DISCIPLINES Services to anyone at any time
i.
Privacy and Security. Six Disciplines has taken reasonable actions, including encryption
and firewalls, to ensure that your personal information is disclosed only to those
designated by you. However, you acknowledge that the Internet is an open system and
Six Disciplines cannot and does not warrant or guarantee that personal information will
not be intercepted by third parties. Six Disciplines disclaims any liability for interception
of any data or communications. Notwithstanding the first sentence in this Section, Six
Disciplines may disclose information submitted by you to Six Disciplines if required by
law or in the event that Six Disciplines, in good faith, believes disclosure is necessary to
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(i) comply with legal process, or (ii) protect the rights or property of Six Disciplines’
Parties or others. Six Disciplines does not sell or rent your personal information to third
parties for their marketing purposes without your explicit consent and we only use your
information as described in the Privacy Statement. For more information on Six
Disciplines’ Privacy Statement, see the Privacy Statement posted on
www.sixdisciplines.com. If you object to your information being used in the manner set
forth in the Privacy Statement, you should discontinue use of the SIX DISCIPLINES
Services and Software.
3.
Reservation of Rights.
All rights not expressly granted to you pursuant to this License Agreement are reserved to Six
Disciplines.
4.
Monitoring.
To the maximum extent permitted by applicable law, you grant Six Disciplines the right to
monitor the Software, the SIX DISCIPLINES Services, and your use of each, and to disclose such
information in the event that Six Disciplines, in good faith, believes it is necessary for purposes of
ensuring your compliance with this License Agreement, and protecting the rights, property, and
interests of SIX DISCIPLINES Parties or any client of a SIX DISCIPLINES Party.
5.
Proprietary Protection of Software.
Six Disciplines is the owner or licensee of all right, title and interest in and to all SIX
DISCIPLINES Software, and all modifications and enhancements thereof, including all trade
secrets, copyrights and patents pertaining thereto. This License Agreement does not provide you
with title or ownership of any Software, but only a right of limited use in accordance with this
License Agreement.
You may not use, display, reproduce, create derivative works of, re-license, sell or distribute the
Software, or any portion thereof, except as otherwise provided in this License Agreement.
You acknowledge and agree that the Software consists of proprietary products of Six Disciplines
or third parties, protected under United States copyright law and trade secret laws generally. Six
Disciplines owns the copyrights to the Software (Copyright © 2004-2009 Six Disciplines, LLC).
All rights reserved. You will devote your best efforts to ensure that all your personnel and all
other persons afforded access to the Software shall protect same against improper use.
You acknowledge that Six Disciplines does not grant any license or other right to use any of its
trademarks, service marks, copyrightable material, or other intellectual property, except as
expressly provided in this License Agreement.
You acknowledge that, in the event of your breach of any of the provisions of this Section, Six
Disciplines will not have an adequate remedy at law. Six Disciplines shall, therefore, be entitled
to obtain an injunction against such breach from any court of competent jurisdiction immediately
upon request. Six Disciplines’ right to obtain injunctive relief shall not limit its right to seek
further remedies.
6.
Your Data.
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You are the owner of all data input provided by you and all your output (collectively "Your
Data"). Upon termination of this Agreement, all of Your Data retained by Six Disciplines in the
business system database files shall be made available to you, upon your remittance to Six
Disciplines of a reasonable fee to cover such final servicing and handling of Your Data.
You agree that Six Disciplines may access Your Data on the SIX DISCIPLINES Services if it is
necessary to perform its services to you and solely for that purpose. Six Disciplines shall maintain
in confidence and shall not disclose to any third party Your Data, and Six Disciplines agrees that
Your Data will not be used by Six Disciplines for any purposes other than the provision of
services to you and as provided in the Six Disciplines’ Privacy Statement.
You agree to:
7.
a.
be solely responsible for the results obtained from use of the SIX DISCIPLINES
Services and Software;
b.
be solely responsible for correcting input errors and data corruption problems;
and
c.
be solely responsible for the content of any data file, the selection and
implementation of controls on access to Your Data and the use and security of
Your Data.
Access Restrictions.
Six Disciplines will provide you with a user identification. You are solely responsible for
maintaining the confidentiality of your user identification and any password you use to access the
Software and SIX DISCIPLINES Services, and agree that Six Disciplines will have no
obligations with regard to the use by third parties of such user identification and/or password. Six
Disciplines shall not be responsible for any breach of security caused by your failure to maintain
the confidentiality of your user identification and password.
8.
Indemnification.
You hereby agree to indemnify, defend and hold harmless Six Disciplines from and against any
and all claims, proceedings, damages, liability and costs (including reasonable attorneys fees)
incurred by Six Disciplines in connection with any claim arising out of (i) any breach or alleged
breach of any of your obligations set forth herein, and (ii) your use of the SIX DISCIPLINES
Services and Software, regardless of the type or nature of the claim. You shall cooperate as fully
as reasonably required in the defense of any claim. Six Disciplines reserves the right, at its own
expense, to assume the exclusive defense and control of any matter otherwise subject to
indemnification by you and you shall not in any event settle any matter without the written
consent of Six Disciplines.
9.
Disclaimer of Warranties.
THE SIX DISCIPLINES SERVICES AND SOFTWARE ARE PROVIDED "AS IS." SIX
DISCIPLINES MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESS,
STATUTORY OR IMPLIED. ANY AND ALL WARRANTIES ARE EXPRESSLY
DISCLAIMED, INCLUDING, WITHOUT LIMITATION, (i) WARRANTIES OF
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE
EFFORT, TITLE, OR NON-INFRINGEMENT; (ii) WARRANTIES ARISING THROUGH
COURSE OF DEALINGS OR USAGE OF TRADE; AND (iii) WARRANTIES THAT THE
SOFTWARE WILL BE ERROR FREE. THIS DISCLAIMER APPLIES TO ANY EXPENSES,
DAMAGES OR INJURY, REGARDLESS OF THE CAUSE, WHETHER FOR BREACH OF
CONTRACT, STRICT LIABILITY, TORTUOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY
OTHER CAUSE OF ACTION.
NO ADVICE OR INFORMATION PROVIDED BY SIX DISCIPLINES SHALL CREATE
ANY WARRANTY.
10.
Exclusive Remedy; Limitation on Liability; Cumulative Liability.
IF YOU ARE DISSATISFIED WITH THE SIX DISCIPLINES SERVICES OR SOFTWARE,
YOU DO NOT AGREE WITH ANY PART OF THIS LICENSE AGREEMENT, OR YOU
HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST SIX DISCIPLINES WITH
RESPECT TO THIS LICENSE AGREEMENT OR THE SIX DISCIPLINES SERVICES OR
SOFTWARE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE
USING THE SIX DISCIPLINES SERVICES AND SOFTWARE.
IN NO EVENT SHALL SIX DISCIPLINES BE LIABLE TO YOU, OR ANY OTHER PERSON
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES (INCLUDING DAMAGES FOR BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION OR SIMILAR LOSSES) EVEN IF
SIX DISCIPLINES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION ON LIABILITY SET FORTH IN THIS SECTION 10 IS INDEPENDENT
OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY IS
DEEMED UNENFORCEABLE.
THE CUMULATIVE LIABILITY OF SIX DISCIPLINES TO YOU FOR ALL CLAIMS
RELATED TO THE SIX DISCIPLINES SERVICES AND SOFTWARE, AND THIS LICENSE
AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT,
STRICT LIABILITY, TORT, NEGLIGENCE OR OTHER CAUSE OF ACTION SHALL NOT
EXCEED THE TOTAL AMOUNT OF ALL USER FEES PAID BY YOU TO SIX
DISCIPLINES FOR USE OF THE SIX DISCIPLINES SERVICES AND, SOFTWARE
DURING THE IMMEDIATELY PRECEDING 6 MONTH PERIOD.
All limitations on liability, damages and claims are intended to apply without regard to whether
other provisions of this License Agreement have been breached or have proven ineffective.
No third party is authorized by Six Disciplines to make any representation or warranty to you
regarding the SIX DISCIPLINES Services or Software.
11.
Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action
arising out of or related to use of the SIX DISCIPLINES Services and Software, or this License
Agreement must be filed within one (1) year after such claim or cause of action arose or be
forever barred.
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12.
Taxes.
You agree to pay when due all taxes relating to this License Agreement, including, without
limitation, sales, use and personal property taxes that will be due for the use of the SIX
DISCIPLINES Services and Software. If Six Disciplines pays any taxes for you, you agree to
reimburse Six Disciplines on demand. You also agree to appoint Six Disciplines as your attorneyin-fact to sign your name to any document for the purpose of filing tax returns, so long as the
filing does not interfere with your right to use the SIX DISCIPLINES Services or Software.
13.
Default.
If you do not pay amounts owing to Six Disciplines or to your local SIX DISCIPLINES Program
Provider, or if you break any promises in this License Agreement, you will be in default. If you
are in default, Six Disciplines may do any one or all of the following: (i) require that you pay the
amounts owing; and (ii) seek any other remedies available to Six Disciplines under the Uniform
Commercial Code or any other law. Six Disciplines also reserves the right to restrict, suspend or
terminate your access to the SIX DISCIPLINES Services and Software in whole or in part,
without notice and without liability, with respect to any breach or threatened breach of any
portion of this License Agreement. If Six Disciplines terminates this License Agreement based on
a breach of any portion of this License Agreement, Six Disciplines reserves the right to refuse to
provide access to the SIX DISCIPLINES Services and Software to you in the future. Once access
to the SIX DISCIPLINES Services and Software has been denied as a result of termination of this
License Agreement, Six Disciplines reserves the right to impose a charge for access to the SIX
DISCIPLINES Services and Software. You acknowledge and agree that Six Disciplines has no
obligation to retain Your Data after termination of this License Agreement, and that Your Data
may be irretrievably deleted 30 days after termination of this License Agreement without any
liability to you. You agree to pay Six Disciplines’ reasonable attorney fees, recovery fees and
actual costs.
14.
Termination of License Agreement.
In addition to any other rights of the parties set forth herein, and subject to any rights and
obligations in any other agreement between you and Six Disciplines, or in any agreement
between you and any local SIX DISCIPLINES Program Provider, either you or Six Disciplines
may terminate this License Agreement upon 30 days’ written notice via electronic mail or
conventional mail, but you remain liable for all amounts owed that accrue up to the time of
termination.
15.
Modifications to License Agreement.
Six Disciplines reserves the right to modify this License Agreement. Any modification is
effective immediately upon distribution via electronic mail or conventional mail. You are
responsible for regularly reviewing the terms, conditions and policies affecting your use of the
SIX DISCIPLINES Services and Software. Your continued use of the SIX DISCIPLINES
Services and Software following notice of any modification to this License Agreement shall be
conclusively deemed an acceptance of all such modifications.
16.
Miscellaneous.
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This License Agreement and the relationship between you and Six Disciplines shall be governed
by the laws of the State of Ohio without regard to its conflict of law provisions. You and Six
Disciplines agree to submit to the personal and exclusive jurisdiction of the courts located within
the State of Ohio. You and Six Disciplines agree that the Uniform Computer Information
Transactions Act (UCITA) as adopted in any state in which this License Agreement may be
performed, shall not apply to this License Agreement.
The headings of sections of this License Agreement are for convenience of reference only and
shall not affect the meaning or interpretation of this License Agreement.
You may not assign, transfer or sublicense your rights to this License Agreement.
You agree that Six Disciplines may provide notices and other communications to you solely by
means of e-mail or other electronic transmission.
This License Agreement constitutes the entire agreement between you and Six Disciplines with
respect to the SIX DISCIPLINES Services and Software, and supersedes all prior agreements
between you and Six Disciplines. Failure by Six Disciplines to enforce any provision of this
License Agreement shall not be construed as a waiver of any provision or right.
In the event that any portion of this License Agreement is held unenforceable, the unenforceable
portion shall be construed in accordance with applicable law as nearly as possible to reflect the
original intent of the parties, and the remainder of the provisions shall remain in full force and
effect.
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